[Federal Register Volume 75, Number 32 (Thursday, February 18, 2010)]
[Proposed Rules]
[Pages 7316-7335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2869]



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Part II





Office of Management and Budget





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2 CFR Subtitle A, Chapter I, Parts 25, 27, 35, et al.



Guidance for Reporting and Use of Information Concerning Recipient 
Integrity and Performance; Proposed Rule

  Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / 
Proposed Rules  

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OFFICE OF MANAGEMENT AND BUDGET

2 CFR Subtitle A, Chapter I, Parts 25, 27, 35, 77, and 180


Guidance for Reporting and Use of Information Concerning 
Recipient Integrity and Performance

AGENCY: Office of Management and Budget, Office of Federal Financial 
Management.

ACTION: Proposed guidance.

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SUMMARY: The Office of Management and Budget (OMB) is proposing 
guidance to Federal agencies to implement Section 872 of the Duncan 
Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 
110-417) (hereafter referred to as ``section 872''), as it relates to 
grants. Section 872 requires: establishment of a Governmentwide data 
system to contain specified information related to the integrity and 
performance of certain entities awarded Federal grants and contracts; 
and use of the information by Federal officials making awards. The 
proposed implementing guidance for grants also would apply to 
cooperative agreements, as a matter of Governmentwide policy.

DATES: Comments are due on or before April 19, 2010.

ADDRESSES: Due to potential delays in OMB's receipt and processing of 
mail sent through the U.S. Postal Service, we encourage respondents to 
submit comments electronically to ensure timely receipt. We cannot 
guarantee that comments mailed will be received before the comment 
closing date.
    Comments may be sent via http://www.regulations.gov, a Federal E-
Government Web site that allows the public to find, review, and submit 
comments on documents that agencies have published in the Federal 
Register and that are open for comment. Simply type ``guidance on 
recipient integrity and performance matters'' (in quotes) in the 
Comment or Submission search box, click Go, and follow the instructions 
for submitting comments. Comments received by the date specified above 
will be included as part of the official record.

FOR FURTHER INFORMATION CONTACT: Marguerite Pridgen, Office of Federal 
Financial Management, Office of Management and Budget, telephone (202) 
395-7844.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Under the proposed guidance, the information that section 872 
requires the data system to contain about each entity either would be 
reported by Federal officials or self-reported by the entity. The 
guidance would require appropriate Federal officials to report on: 
Terminations of awards due to material failure to comply with award 
terms and conditions; administrative agreements with entities to 
resolve suspension or debarment proceedings; and findings that entities 
were not qualified to receive awards. Through a new award term, the 
guidance would require each recipient that has Federal awards with a 
cumulative total value greater than $10,000,000 to provide information 
about certain civil, criminal, and administrative proceedings that 
reached final disposition within the most recent 5-year period and were 
connected with the award or performance of a Federal or State award. 
The award term also requires those recipients to report at least 
semiannually to maintain the currency of the information. As section 
872 requires, an entity also would be able to submit comments to the 
data system about any information that the system contains about the 
entity.
    Prior to making a decision to award a grant or cooperative 
agreement to an entity, the Federal agency official authorized to make 
the award would be required to determine whether the entity is 
qualified to receive an award, taking into consideration any 
information about the entity that is in the data system.
    In support of the data system, the proposed guidance also would 
establish requirements for program announcements and award terms to 
require that applicants, recipients, and first-tier subrecipients 
obtain Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) 
numbers and register in the Central Contractor Registration (CCR). This 
is a modification of a previous OMB proposal.
    The proposed guidance is in amendments to 2 CFR, chapter I, that 
would add four new parts, amend one existing part, and create 
subchapters to provide organizational structure for the chapter. The 
amendments relocate some existing OMB guidance into 2 CFR, chapter I, 
to provide needed context for the proposed new guidance.
    Requirements in Section 872 that are related to Federal procurement 
contracts are being implemented separately from the proposed guidance 
in this action, through proposed amendments to the Federal Acquisition 
Regulation [74 FR 45579]. Data elements and Paperwork Reduction Act 
clearance for non-Federal entities' reporting to the Governmentwide 
data system will be proposed for comment separately.
    In the future, OMB may broaden the scope of the data system to 
include recipient information from authoritative data sources not 
described in this guidance and information on each entity receiving an 
award below the $500,000 threshold. In response to this notice, we are 
seeking input on the possible impact such scope changes could have on 
the affected recipients.

I. Purposes of 2 CFR Amendments Proposed in This Document

    Following this Federal Register preamble are 12 proposed amendments 
to chapter I of title 2 of the Code of Federal Regulations (CFR). 
Chapter I is the location of OMB policy and procedural guidance to 
Federal agencies for the award and administration of grants and 
agreements.
    The twelve proposed amendments would make various kinds of changes 
to 2 CFR. Some of the changes would create new OMB guidance needed to 
implement section 872. Other changes would update guidance that 
currently exists elsewhere and must be relocated into 2 CFR to provide 
a context in that title for the new guidance needed to implement 
section 872. The new and updated guidance would be in four new parts of 
Chapter I that the amendments would add--2 CFR parts 25, 27, 35, and 
77--and in amendments to the existing 2 CFR part 180. Each part states 
its applicability to types of financial assistance awards and types of 
entities because the applicability varies depending upon the 
requirements that the part implements.
    The remaining changes are administrative in nature. We are 
proposing these changes primarily to create seven subchapters in 2 CFR, 
Chapter I. The intent is to provide a better organizational framework 
for parts that already are located in the chapter, parts that the 
twelve proposed amendments would add, and other parts to be added in 
the future. The first of the proposed administrative changes, which is 
amendment 1 following this preamble, would transfer parts 2-99 into 
Chapter I, so that the chapter would be comprised of parts 2-199. 
Changes made by amendments 2, 4, and 6 through 8, as well as portions 
of amendments 3 and 5, would create the new subchapters. The 
subchapters would be:
     Subchapter A, ``General Matters.''
     Subchapter B, ``Pre-Award Responsibilities.''
     Subchapter C, ``Award Content and Format.''

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     Subchapter D, ``Post-Award Responsibilities.''
     Subchapter E, ``Cost Principles.''
     Subchapter F, ``Audit Requirements.''
     Subchapter G, ``National Policy Requirements.''
    The remainder of this Supplementary Information section is 
organized into 6 sections. Section II describes the statutory 
requirements of section 872. Section III describes proposed amendments 
that would add new OMB guidance needed to implement section 872 for 
grants and cooperative agreements. Section IV describes proposed 
amendments that would update and relocate into 2 CFR existing guidance, 
in order to provide needed context for the new guidance described in 
Section III. Section V explains the relationship of one of the proposed 
amendments to a proposal that OMB made in June 2008. Section VI is an 
invitation to comment and Section VII describes next steps.

II. Statutory Requirements of Section 872

A. What Information Must Be Reported and Compiled

    Section 872 requires the Administrator of General Services to 
establish by October 14, 2009 (one year after enactment of Pub. L. 110-
417) ``a database of information regarding the integrity and 
performance of certain persons awarded Federal agency contracts and 
grants for use by Federal agency officials having authority over 
contracts and grants.'' The implementation of the ``database'' required 
by section 872 is expected to be a data system comprised of multiple 
Federal databases. In accordance with paragraph (b) of section 872, the 
data system must cover at least each entity awarded a Federal contract 
or grant in excess of $500,000, to the extent that there exists 
information regarding the entity in any of the categories that the law 
delineates (note that ``person,'' the term used in the statute, as well 
as the term ``entity'' used in the proposed guidance to implement the 
statute, are properly understood to include both organizations and 
individuals that apply for and receive Federal awards). Those 
categories include information, in the form of a brief description, for 
the most recent 5-year period regarding the following:
    1. Each civil or criminal proceeding, or any administrative 
proceeding, in connection with the award or performance of a contract 
or grant with the Federal Government with respect to the entity during 
the period to the extent that such proceeding results in the following:
    a. In a criminal proceeding, a conviction.
    b. In a civil proceeding, a finding of fault and liability that 
results in the payment of a monetary fine, penalty, reimbursement, 
restitution, or damages of $5,000 or more.
    c. In an administrative proceeding, a finding of fault and 
liability that results in either: (i) The payment of a monetary fine or 
penalty of $5,000 or more; or (ii) the payment of a reimbursement, 
restitution, or damages in excess of $100,000.
    d. To the maximum extent practicable and consistent with applicable 
laws and regulations, in a criminal, civil, or administrative 
proceeding, a disposition of the matter by consent or compromise with 
an acknowledgment of fault by the entity if the proceeding could have 
led to any of the outcomes specified in the preceding paragraphs a, b, 
or c.
    2. Each Federal contract and grant awarded to the entity that was 
terminated in such period due to default.
    3. Each Federal suspension and debarment of the entity in that 
period.
    4. Each Federal administrative agreement entered into by the entity 
and the Federal Government in that period to resolve a suspension or 
debarment proceeding.
    5. Each final finding by a Federal official in that period that the 
entity has been determined not to be a responsible source under 
subparagraph (C) or (D) of section 4(7) of the Office of Federal 
Procurement Policy Act (41 U.S.C. 403(7)).
    6. Such other information as shall be provided for purposes of this 
section in the Federal Acquisition Regulation.
    7. To the maximum extent practical, information similar to the 
information covered by paragraphs 1 through 4 in connection with the 
award or performance of a contract or grant with a State government.

B. Who Reports the Information

    Section 872 requires that the data system permit appropriate 
Federal officials to directly enter and update information about 
actions they have taken with respect to recipients or contractors. It 
also requires issuance of regulations to require recipients and 
contractors who receive more than $10,000,000 in Federal grants and 
contracts to provide current information about themselves and update 
the information on a semiannual basis.
    Section 872 also provides recipients and contractors an option for 
additional comment. An entity must receive timely notification when 
information relevant to it is entered into the data system and given an 
opportunity to submit comments about the information, for inclusion in 
the data system.

C. How the Data System Is Being Designed

    Even though the specific data elements to be reported will be 
addressed separately from the policy guidance proposed in this Federal 
Register notice, it is important to note that one objective of OMB and 
the Federal agencies working to implement section 872 is to integrate 
the policies and procedures for financial assistance and acquisition 
with the information technology aspects of the implementation in a way 
that minimizes the burdens on entities that receive Federal grants, 
cooperative agreements, and procurement contracts, as well as burdens 
on Federal agencies. Therefore, we are striving to implement the 
statute in a manner that, to the extent possible--
     Reduces reporting of information by non-Federal entities 
by relying on Federal officials for as much of the information as 
possible;
     Provides for use of the same data system for both 
contracts and grants; and
     Uses existing databases and information systems, such as 
the Excluded Parties List System, both as a source of information and a 
place to store new information for Federal officials' reporting of 
required information.
    We currently anticipate that the data system, which will be known 
as the Federal Awardee Performance and Integrity Information System 
(FAPIIS), will involve several business rules to increase the 
usefulness, accuracy, and confidentiality of information in the system. 
We expect that:
     Only Federal Government officials will be able to view the 
information in FAPIIS, with the exception that an entity will be able 
to view its own information.
     FAPIIS will be designed to automatically notify an entity 
when new information about itself is posted, in addition to the 
notification provided by the Federal official who entered the 
information.
     There will be a point of contact for system errors and a 
point of contact for each Federal information entry, so that any errors 
in information in FAPIIS can be brought to the attention of the 
appropriate Government official.
     Data accessible for a period of 5 years, as section 872 
requires, will be archived for an additional period of 1

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year to allow for resolution of issues related to the information.
     There will be only a modest amount of space for an 
entity's comments about each past event reported to FAPIIS, as the 
purpose is for the entity to provide any additional information it may 
have about its present qualification to receive awards and not to 
dispute the past event. The comments will be retained in FAPIIS as long 
as the associated information is retained (i.e., accessible for a 
period of 5 years and archived for an additional year). An entity may 
revise its comments in FAPIIS, but version control will be maintained.

D. How the Information Is To Be Used

    Section 872 specifies that before awarding a contract or grant in 
excess of the simplified acquisition threshold (currently $100,000), 
the Federal agency official responsible for making the award must 
consider the information in the data system with respect to the entity 
to which the award would be made.

III. Amendments Establishing New Guidance To Implement Section 872

    The implementation of section 872 requires OMB guidance to 
establish some new policies and procedures. The new requirements 
resulting from this guidance for non-Federal and Federal entities are 
described in the following sections III.A and III.B.
    Section 872 applies to grants and procurement contracts. As a 
matter of Federal Government policy, the proposed new guidance in 2 CFR 
would apply the requirements of section 872 to cooperative agreements, 
as well as grants. Implementation of the statute as it applies to 
procurement contracts is being addressed through a separate Federal 
Register document proposing changes to the Federal Acquisition 
Regulation (74 FR 45579, September 3, 2009).
    The proposed new 2 CFR guidance does not address data elements or, 
other than the broad outlines described in Section II.C of this notice, 
other specifics of the data system that section 872 requires the 
General Services Administration to establish. It does establish the 
underlying policy framework, including requirements for recipients and 
their direct (i.e., first-tier) subrecipients, Federal agency officials 
who award and administer grants and cooperative agreements, and Federal 
agency suspending and debarring officials.

A. Proposed New Requirements for Recipients and Subrecipients

    Agencies would communicate requirements applicable to non-Federal 
entities through two new award terms included in the proposed guidance.
    The first award term is included in the proposed new part 25, which 
would be added by amendment 3 following this preamble. It would require 
recipients and first-tier subrecipients to obtain and provide DUNS 
numbers to Federal awarding agencies and to maintain current 
registrations in the CCR. These requirements support the implementation 
of section 872. They are needed to help correctly identify a recipient 
or contractor entity, so that information about the entity that resides 
in multiple Federal Government databases can be properly linked 
together and provided through an integrating data system to Federal 
agency awarding officials, as section 872 requires.
    The second award term is included in the proposed part 35, which 
also would be added by amendment 3 following this preamble. It 
implements for grants and cooperative agreements the requirement in 
paragraph (f) of section 872. It does so by requiring a recipient to 
provide information about itself for inclusion in the data system if it 
has currently active Federal grants, cooperative agreements, and 
contracts with a cumulative total value (including any options not yet 
exercised) greater than $10 million. Specifically, it requires each 
recipient to: (1) Provide information about any criminal convictions, 
civil judgments, and outcomes of administrative proceedings that are 
listed in section II.A.1 of this Supplementary Information section; and 
(2) maintain the currency of that information by reviewing it at least 
semiannually and making any needed updates. The award term requires the 
recipient to report convictions and outcomes of proceedings associated 
with both Federal and State awards because section 872 requires 
inclusion of information about those associated with State awards, to 
the maximum extent practicable (see paragraph II.A.7 of this 
Supplementary Information section).
    The award term in the proposed part 35 would not require non-
Federal entities to provide information about Federal suspensions or 
debarments, terminations of awards, or other actions for which section 
872 requires the data system to have information. The reason is that 
the needed information about those Federal actions can readily be 
obtained from the Federal awarding, administering, and suspending and 
debarring officials who take the actions.

B. Proposed New Requirements for Federal Officials

    Most of the proposed guidance addresses responsibilities of Federal 
officials, including those who award and administer grants and 
cooperative agreements and Federal agency suspending and debarring 
officials.
    The new responsibilities proposed for suspending and debarring 
officials are in amendments 10 through 12 following this preamble, 
which revise 2 CFR part 180. The new responsibilities are to:
     Report information to the data system established under 
section 872 about each administrative agreement entered into with an 
entity to resolve a suspension or debarment action and, if needed, 
subsequently correct or update the information. A suspending or 
debarring official sometimes negotiates an administrative agreement 
because he or she determines that it is a better way for the Government 
to resolve the matter than suspending or debarring the entity.
     Include additional wording in each administrative 
agreement, as well as in each notice a suspending or debarring official 
sends to notify an entity that it has been suspended or debarred. The 
purpose of the additional wording is to inform the entity that 
information about the action will be available through the new data 
system established under section 872, how Federal awarding officials 
will use the information, that the entity may comment about the 
information in the system, and other related matters.
    There are a number of proposed new responsibilities for officials 
who make awards. Those new pre-award responsibilities would be to:
     Include wording in each program announcement, program 
regulation, or other issuance containing instructions for applicants, 
to require each applicant to register in the CCR and provide its DUNS 
number in each application it submits, unless the applicant is an 
individual or is otherwise excepted from those requirements (see 
subpart B of the proposed part 25 and Appendix A of the proposed part 
27, subdivision II, paragraph II.C.3).
     Include wording in the section of each program 
announcement describing the review and selection process, to inform 
potential applicants that, prior to making an award to an entity, the 
Federal agency awarding official must consider information about the 
entity that is contained in FAPIIS. The wording also would inform a 
potential applicant about its right to review information about itself 
in FAPIIS and

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provide comments that the awarding official also would consider in 
making a determination about the entity's qualification to receive an 
award. (See Appendix A of the proposed part 27, subdivision II, 
paragraph II.E.2.b.)
     Determine before making an award to an entity whether the 
entity is qualified. If the official determined that an entity was not 
qualified, he or she still would be able to make the award in some 
cases. However, if the official did not make an award expected to 
exceed the simplified acquisition threshold (currently $100,000) 
because he or she disqualified the entity based on its integrity and 
business ethics and prior performance under Federal awards, the 
official would be required under the proposed guidance to report 
information about the disqualification to FAPIIS. The official would be 
required to notify the disqualified entity about the reporting of the 
information to the data system, how Federal awarding officials will use 
the information, that the entity may comment about the information in 
the system, and related matters. The official also would be required to 
make timely corrections to any information submitted about the 
disqualification that he or she later learned to be erroneous. (See 
subpart A of the proposed part 35.)
     Include in the award the two proposed new award terms--one 
for DUNS number and CCR registration requirements (see Subpart B of the 
proposed part 25 and Appendix A to that part) and one for recipient 
reporting requirements to the FAPIIS data system (see subpart B of the 
proposed part 35 and Appendix A to that part).
    The proposed guidance also would establish new post-award 
responsibilities for officials who administer awards. Subpart B of the 
proposed part 77 contains requirements for those officials to report 
terminations of awards to FAPIIS; notify the affected non-Federal 
entities about the reporting of the information, its use, and 
opportunities for the entities to comment; and correct any submitted 
information later learned to be erroneous.

IV. Amendments That Update and Relocate Existing OMB Guidance

    As discussed in Section I of this Supplementary Information 
section, some of the proposed amendments following this preamble would 
update existing OMB guidance and relocate it into 2 CFR to provide 
needed context for the new guidance that was described in the preceding 
Section III. The following sections IV.A, IV.B, and IV.C, respectively, 
describe aspects of the proposed 2 CFR parts 25, 27, and 35 that relate 
to existing OMB guidance.

A. Aspects of the Proposed Part 25 That Relate to Policies and 
Procedures Currently in Effect

1. DUNS Numbers
    The proposed part 25 implements and relocates into 2 CFR existing 
OMB guidance on the use of the DUNS number as a universal identifier. 
That guidance is in two OMB policy memoranda that require Federal 
agencies to obtain DUNS numbers from applicants and use them in the 
award and administration of Federal financial assistance awards. The 
details are that:
     The policy initially was established by the July 15, 2003, 
OMB memorandum M-03-16, ``OMB Issues Grants Management Policies,'' 
which applied to grants and cooperative agreements. That memorandum is 
available at http://www.whitehouse.gov/omb/memoranda/m03-16.pdf and the 
full text of the policy is available in the Federal Register [68 FR 
38402, June 27, 2003].
     On May 30, 2008, OMB broadened that policy to include 
other forms of Federal financial assistance when it issued memorandum 
M-08-19, ``Authority to Collect DUNS Number to Meet Requirements of the 
Federal Funding Accountability and Transparency Act of 2006.'' 
Specifically, the memorandum broadened the 2003 policy to include loans 
and other forms of financial assistance that are subject to the Federal 
Funding Accountability and Transparency Act (Pub. L. 109-282, hereafter 
referred to as ``the Transparency Act''). The memorandum is available 
at http://www.whitehouse.gov/omb/assets/omb/memoranda/fy2008/m08-19.pdf.
    As proposed, part 25 would implement the existing policy on DUNS 
numbers as it applies to prime recipients (i.e., those that receive 
awards directly from Federal agencies) and their direct or ``first-
tier'' subrecipients. Implementing the policy for recipients and first-
tier subrecipients parallels the approach used in OMB guidance 
implementing requirements to track use of funds under the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5, hereafter 
referred to as ``the Recovery Act''). That guidance is available at 
http://www.recovery.gov and http://www.omb.gov.
2. CCR Registration
    With respect to requirements for CCR registration, the proposed 
part 25 would establish as policy in 2 CFR what already is a 
requirement for any applicant who uses Grants.gov to electronically 
submit its application to a Federal agency. The proposed policy would 
apply to first-tier subrecipients, in addition to applicants and prime 
recipients, which is a broadening of the current Grants.gov 
requirement. Again, this inclusion of first-tier subrecipients 
parallels the recent OMB implementation of the Recovery Act.

B. Aspects of the Proposed Part 27 That Relate to Policies and 
Procedures Currently in Effect

    Given that the proposed part 27 would require program announcements 
to include specific content related to section 872, as described in 
section III.B of this Supplementary Information section, we also are 
proposing that the part include the more general OMB policies related 
to program announcements. These include the OMB directives to use the 
standard format and to electronically post announcements and synopses 
of them, as described in the following sections IV.B.1 and IV.B.2.
1. Governmentwide Standard Format for Program Announcements
    Subpart B of the proposed part 27 specifies that agencies must use 
the standard format for program announcements, thereby incorporating 
into 2 CFR the policy originally established by OMB memorandum M-03-16, 
``OMB Issues Grants Management Policies.'' The memorandum is available 
at http://www.whitehouse.gov/omb/assets/omb/memoranda/m03-16.pdf. The 
full text of the policy was in a directive that OMB published in the 
Federal Register [68 FR 37370, June 23, 2003].
    We are proposing that the format itself, which OMB published with 
the policy directive in that 2003 Federal Register document, be 
incorporated as Appendix A to the proposed part 27. Incorporating it 
into the CFR will enable it to be more easily updated in the future. In 
incorporating it, we made the following changes:
     We assigned letters and numbers to every paragraph in the 
format, many of which had none in the 2003 issuance. Doing so required 
changes to designations that many paragraphs had in that earlier 
format. While we regret any near-term inconvenience that this 
transition in paragraph designations may cause for users of the format, 
it is needed to enable us to efficiently amend individual paragraphs of 
the text in the future. In making this change, we did incorporate 
suggestions we heard from users, based on their experiences with

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the 2003 format, by using a standard outlining schema.
     We merged the content of the lead-in material from the 
portion of the 2003 format entitled ``Full text of Announcement,'' into 
a new Subdivision 1, ``How to Use this Appendix.'' The editing of the 
material to accommodate the change is not intended to be substantive.
     The only two substantive changes are in Subdivision 2 of 
the appendix, ``The Announcement Format,'' and are part of the 
implementation of section 872. First, we added a new paragraph II.C.3, 
which agencies are required to include in their announcements, to 
address the DUNS number and CCR requirements stated in the proposed 2 
CFR part 25. Second, we added a required paragraph II.E.3, ``Recipient 
Qualification,'' to subsection II.E on application review, to require 
agencies to inform potential applicants about the standards used to 
determine that a recipient is qualified and the related uses of the new 
FAPIIS data system to be established under section 872.
2. Electronic Posting of Program Announcements and Synopses
    Subpart C of the proposed part 27, ``Issuance,'' incorporates into 
2 CFR, without substantive change, existing policies on electronic 
issuance of program announcements and synopses of them. The details are 
that:
     Section 27.305 includes the requirement for an agency to 
electronically post each program announcement. That requirement was 
originally established by OMB memorandum M-03-16, ``OMB Issues Grants 
Management Policies.'' The full text of the policy was in a directive 
that OMB published in the Federal Register with the announcement format 
[68 FR 37370, June 23, 2003].
     Section 27.310 includes the requirement for an agency to 
electronically post each synopsis of an announcement of a funding 
opportunity that OMB originally established on October 15, 2003, in 
memorandum M-04-01, ``OMB Issues Grants.gov FIND Policy.'' The 
memorandum is available at http://www.whitehouse.gov/omb/memoranda_fy04_m04-01/. OMB published the full text of the policy in the Federal 
Register [68 FR 58146, October 8, 2003].

C. Aspects of the Proposed Part 35 That Relate to Policies and 
Procedures Currently in Effect

    Most of the requirements in the proposed part 35 are new, as 
described in section III of this Supplementary Information section. One 
aspect that is not new is the requirement for an awarding official to 
check the Excluded Parties List System before making an award to an 
entity, to ensure that the entity is not debarred, suspended, or 
otherwise disqualified from receiving the award. That requirement is in 
2 CFR part 180, subpart D. Paragraph 35.120(a) in the proposed part 35 
refers to that existing requirement because checking the EPLS is a 
critical step in an awarding official's determination that an entity is 
qualified (we anticipate that the awarding official ultimately will be 
able to check the EPLS database through FAPIIS).
    Although it has not been explicitly stated in OMB guidance 
previously, the requirement in paragraph (a) of the proposed section 
35.205 for a Federal agency awarding official to ensure that each award 
includes the appropriate terms and conditions is a practice, if not an 
explicit formal policy, of all Federal agencies. It serves in the 
proposed guidance as a basis for identifying Governmentwide award terms 
that an awarding official must include, pending more comprehensive 
guidance on the format and content of grants and cooperative agreements 
that is under development. One of those award terms, which implements a 
statute on Trafficking in Persons, is in previously established 
guidance at 2 CFR 175.15.

V. Relationship of Proposed DUNS Number and CCR Requirements to a 
Proposal Made in June 2008

    On June 6, 2008 [73 FR 32417], OMB published in the Federal 
Register a proposed new 2 CFR part 33 with policies and procedures for 
implementing Transparency Act requirements for Federal financial 
assistance awards. As it was proposed in June 2008, the new part 33 
would have required direct recipients of Federal agency awards and, 
with some exceptions, subrecipients at all lower tiers (if their 
subawards were subject to Transparency Act reporting requirements) to 
have DUNS numbers and register in the CCR.
    The proposed part 25 in amendment 3 following this preamble is 
intended to supersede the DUNS number and CCR elements of the June 2008 
proposal. As stated earlier, part 25 includes the requirements for 
prime recipients and subrecipients at the first tier below the prime 
award. If future implementation of the Transparency Act or other 
statute requires extending the requirement for DUNS numbers, CCR 
registration, or both to subrecipients at lower tiers, as we proposed 
in June 2008, we would amend part 25 through a Federal Register process 
that afforded an opportunity for public comment.
    We appreciate the many thoughtful comments we received from the 
affected public and Federal agencies on the DUNS number and CCR aspects 
of the June 2008 proposal. We considered those comments in developing 
the proposed part 25 following this preamble. The following paragraphs 
summarize the comments we received in 2008 that are most pertinent to 
the newly proposed part 25. They also provide responses to those 
comments as additional background related to the basis for the current 
proposal.
    Comment: Sixteen commenters suggested not using the DUNS number as 
the means to uniquely identify recipient and subrecipient entities. The 
Employer Identification Number (EIN) was offered as one alternative. 
Among reasons the commenters gave for not using DUNS numbers were that: 
(1) The requirement to have a DUNS number could preclude subawards to 
small entities that do not have the organizational infrastructure to 
support DUNS numbers; and (2) the time required to obtain a DUNS number 
could delay applications from, or awards to, first-time subrecipients, 
especially as the large number of entities needing to obtain DUNS 
numbers could strain the system's ability to process their requests; 
and (3) an entity can have multiple DUNS numbers, even at the same 
operating location, which is a source of potential confusion. 
Commenters that offered the EIN as an alternative noted that many 
States already use EINs as identifiers for subrecipients in their 
electronic data systems.
    Response: The DUNS number still is the only identifier with the 
advantages that led us to establish it in 2003 as the universal 
identifier for recipients of grants and cooperative agreements (see the 
preamble to 68 FR 38403, June 27, 2003). Although other numbering 
systems currently are in use--and will continue because they are used 
for different purposes--none is adequate to identify family tree 
relationships or to provide the access and validation capabilities that 
the DUNS numbers provide.
    We agree with the commenters that some entities have multiple DUNS 
numbers that are not justified but believe the proper solution is for 
Dun and Bradstreet (D&B) to continue to advise organizations on ways to 
properly control their DUNS hierarchies, something for which each 
organization necessarily is responsible. We do not agree that the one-
time activity to obtain a DUNS number,

[[Page 7321]]

which can be almost immediate and should take no more than 48 hours, 
will create significant delays in applications or awards. While we 
appreciate that first-tier subrecipients who are not also prime 
recipients of other Federal awards may need to adjust their procedures 
and systems initially to accommodate the DUNS number requirement, we 
judge that the long-term benefits justify those changes.
    Comment: Twenty-nine commenters questioned whether the 
administrative burden associated with CCR registration of subrecipients 
was justified by the benefits. Six questioned the value for prime 
recipients.
    Response: We believe the benefits do justify the requirement. For 
entities applying for Federal assistance awards, CCR registration 
already is a valuable adjunct to Grants.gov, the central site through 
which applications may be submitted electronically in a more uniform 
way to all Federal agencies. For prime recipients, we anticipate that 
information in CCR will be used in conjunction with all payments under 
Federal awards (they already are used for payments under some Federal 
financial assistance awards, as well as procurement contracts). For 
first-tier subrecipients, CCR registration will help ensure that 
Federal Government databases correctly identify entities receiving 
subaward funding that must be reported in compliance with the 
Transparency or Recovery Act.
    Comment: Two commenters suggested that the Federal Government 
create crosswalks between DUNS numbers and other identifiers. One 
commenter suggested providing a crosswalk between DUNS numbers and 
EINs, since some recipients already have EINs for subrecipients in 
their data bases. Another commenter suggested cross linking 
organizational data in the D&B files for DUNS numbers with 
organizational information in files associated with other identifiers 
that Federal agencies require, such as the Inventory of Substance Abuse 
Treatment Services (I-SATS) number, and the National Provider 
Identifier (NPI) that one obtains through the National Provider System. 
The commenter noted that linking the files could reduce burdens for 
reporting the same information multiple times and help prevent there 
being duplicative or even inconsistent information about an 
organization in files associated with different identifiers.
    Response: We appreciate the suggestion but are not aware of any 
current plans to link data bases of organizational information 
associated with the identifiers cited, which are used for different 
purposes.
    Comment: One commenter suggested that DUNS numbers apparently were 
designed for grant recipients and contractors, and not for loan 
recipients.
    Response: The DUNS number is pertinent to loan recipients due to 
its use as the universal identifier for reporting under the 
Transparency Act.
    Comment: One commenter expressed concern about entities with 
multiple locations, each doing a limited amount of business, being 
required to have a DUNS number assigned for each location. The 
commenter urged OMB to work to minimize burdens on small entities.
    Response: An entity with multiple locations would need a DUNS 
number for each location only if each received awards or subawards of 
Federal funds. Moreover, D&B maintains DUNS numbers for over one 
hundred million entities for much broader purposes, so individual 
locations of many recipient and subrecipient entities likely already 
have DUNS numbers for business reasons unrelated to Federal awards. We 
share the commenter's concern about minimizing burdens but note that 
obtaining a DUNS number is not a very great burden because it is a one-
time activity.
    Comment: One commenter asked how and when Federal agencies collect 
and report DUNS information. Three other commenters suggested not 
requiring an entity to provide its DUNS number or be registered in the 
CCR until the time at which the Federal agency makes its award, rather 
than requiring the entity to provide its DUNS number at the time of its 
application.
    Response: Federal agencies collect DUNS information from each 
applicant at the time of application and use it during the pre-award 
processing leading to the issuance of the award, as well as in post-
award administration. At time of award, an agency reports the DUNS 
number as a required field in submissions of Transparency Act data for 
prime award obligations to recipients. An entity that applies 
electronically through Grants.gov must have a DUNS number prior to 
applying because Grants.gov requires applicants to be registered in the 
CCR, which in turn requires a DUNS number.
    Comment: One commenter asked whether an applicant for a Federal 
agency award was required to provide a DUNS number for each entity to 
which it proposed in its application that it would make a subaward.
    Response: An applicant is not required to submit a proposed 
subrecipient's DUNS number to a Federal agency as part of the 
application process. However, after receiving a Federal award, a 
recipient will need to include the subrecipient's DUNS number with the 
data it submits for each subaward obligation that must be reported 
under the Transparency or Recovery Act.
    Comment: A commenter questioned whether a recipient would have to 
receive Federal agency permission to change a subrecipient if it: (1) 
Proposed an entity as a subrecipient in its application to the agency; 
(2) received an award; and then (3) learned that the entity it had 
proposed as a subrecipient would not provide a DUNS number.
    Response: Both OMB Circular A-110 and the common rule implementing 
OMB Circular A-102 permit an agency to require a recipient to obtain 
its prior approval for any subawards of work under the award. If the 
agency did not waive that requirement, its approval of the application 
would serve as the prior approval if the recipient made the subaward to 
the same entity it identified in its application. All of that is 
unchanged by the new guidance that is proposed following this preamble. 
However, due to the new guidance prohibiting first-tier subawards to 
entities that have not provided a DUNS number to the recipient, an 
applicant who plans to propose in its application that it will make 
subawards to specific entities may want to consider the benefits of 
having DUNS numbers for those entities before submitting its 
application to a Federal agency.
    Comment: Two commenters asked if there would be additional guidance 
to clarify how an agency would exercise the discretion provided (which 
now is in section 25.205 of the proposed guidance following this 
preamble) when considering an award to an entity that had not yet 
complied with the requirement to provide a valid DUNS number or 
register in the CCR. The proposed section would permit, but not 
require, an agency to give the entity a period of time to come into 
compliance before it determined, based on the entity's noncompliance, 
that the entity was not qualified to receive the award. The section did 
not specify how long the period of time might be.
    Response: The guidance deliberately leaves that matter to agency 
discretion. A wide variety of Federal programs use grants, cooperative 
agreements, and other Federal financial assistance awards subject to 
the DUNS and CCR requirements. Flexibility in the guidance is essential 
because the programs have differing constraints in their program 
statutes, the periods of availability of their appropriated funds,

[[Page 7322]]

and the criticality of their program schedules. The different 
constraints necessarily affect how each awarding office will be able to 
use the discretion provided.

VI. Invitation To Comment

    We are requesting comment on all of the proposed new guidance, as 
well as changes to previously existing guidance, that would be made by 
in the amendments following this preamble. With respect to portions of 
the guidance that the amendments are relocating into 2 CFR without 
substantive change, we are not seeking to revisit substantive issues 
raised by comments that were resolved when those portions of the 
guidance originally were issued. However, we invite comments on any 
unintended changes we have made in those portions of the guidance.
    In the future, OMB may expand the scope of the data system to 
include recipient information from authoritative data sources not 
described in this guidance and information on recipients receiving 
awards below the $500,000 threshold. In response to this notice, we are 
also seeking input on the possible impact that expanding the system 
scope could have on the affected recipients.

VII. Next Steps

    We will finalize the guidance to Federal agencies after resolving 
any comments we receive on what is proposed following this preamble. 
When the guidance is final, each Federal agency will implement it, 
thereby giving it effect for applicants, recipients, and Federal agency 
officials with responsibilities for carrying out required actions.

List of Subjects

2 CFR Part 25

    Administrative practice and procedures, Grants administration, 
Grant programs, Loan programs.

2 CFR Part 27

    Administrative practice and procedures, Grant programs, 
Information.

2 CFR Part 35

    Administrative practice and procedures, Archives and records, 
Cooperative agreements, Ethical conduct, Grant programs, Reporting and 
recordkeeping requirements.

2 CFR Part 77

    Administrative practice and procedures, Archives and records, 
Cooperative agreements, Grants administration, Grant programs.

2 CFR Part 180

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Loan programs, Reporting and recordkeeping 
requirements.

Danny Werfel,
Controller.

Authority and Issuance

    For the reasons set forth above, the Office of Management and 
Budget amends 2 CFR, subtitle A, as follows:
    1. In subtitle A to title 2, parts 2 through 99, which are 
currently reserved, are transferred to chapter I.
    2. Subchapter A to chapter I, consisting of parts 2 through 19, is 
established and reserved to read as follows:

Subchapter A--General Matters--[Reserved]

PARTS 2-19--[RESERVED]

    3. Subchapter B to chapter I, consisting of parts 20 through 39, is 
established and added to read as follows:

Subchapter B--Pre-Award Responsibilities

PARTS 20-24--[RESERVED]

PART 25--UNIVERSAL IDENTIFIER AND CENTRAL CONTRACTOR REGISTRATION

Sec.
Subpart A--General
25.100 Purposes of this part.
25.105 Types of awards to which this part applies.
25.110 Types of recipient and subrecipient entities to which this 
part applies.
25.115 Deviations.
Subpart B--Policy
25.200 Requirements for program announcements, regulations, and 
application instructions.
25.205 Effect of noncompliance with a requirement to obtain a DUNS 
number or register in the CCR.
25.210 Authority to modify agency application forms or formats.
25.215 Requirements for agency information systems.
25.220 Use of award term.
Subpart C--Definitions
25.300 Agency.
25.305 Award.
25.310 Central Contractor Registration (CCR).
25.315 Data Universal Numbering System (DUNS) Number.
25.320 Entity.
25.325 For-profit organization.
25.330 Foreign public entity.
25.335 Indian tribe (or ``Federally recognized Indian tribe'').
25.340 Local government.
25.345 Nonprofit organization.
25.350 State.
25.355 Subaward.
25.360 Subrecipient.
Appendix A to Part 25--Award Term

    Authority: Pub. L. 109-282; 31 U.S.C. 6102.

Subpart A--General


Sec.  25.100  Purposes of this part.

    This part provides guidance to agencies to establish:
    (a) The Dun and Bradstreet (D&B) Data Universal Numbering System 
(DUNS) number as a universal identifier for Federal financial 
assistance applicants, as well as recipients and their direct 
subrecipients.
    (b) The Central Contractor Registration (CCR) as the repository for 
standard information about those applicants, recipients, and 
subrecipients.


Sec.  25.105  Types of awards to which this part applies.

    This part applies to an agency's grants, cooperative agreements, 
loans, and other types of Federal financial assistance included in the 
definition of ``award'' in Sec.  25.305.


Sec.  25.110  Types of recipient and subrecipient entities to which 
this part applies.

    (a) General. Through an agency's implementation of the guidance in 
this part, this part applies to all entities, other than those excepted 
in paragraphs (b), (c), and (d) of this section, that--
    (1) Apply for or receive agency awards; or
    (2) Receive subawards directly from recipients of those agency 
awards.
    (b) Exceptions for individuals. None of the requirements in this 
part apply to an individual who applies for or receives Federal 
financial assistance as a natural person (i.e., unrelated to any 
business or non-profit organization he or she may own or operate in his 
or her name).
    (c) Exceptions for Federal agencies. The requirement in this part 
to maintain a current registration in the CCR does not apply to an 
agency of the Federal Government that receives an award from another 
agency.
    (d) Other exceptions. (1) Under a condition identified in paragraph 
(d)(2) of this section, an agency may except an entity from an 
applicable requirement to obtain a DUNS number, register in the CCR, or 
both.
    (i) In that case, the agency must use a generic DUNS number in any 
data that it reports for a prime award to the entity, as required by 
the Federal

[[Page 7323]]

Funding Accountability and Transparency Act (Pub. L. 109-282, hereafter 
cited as ``Transparency Act''). The agency must use the generic DUNS 
number in accordance with the current guidance at the CCR Web site.
    (ii) The agency also may provide a generic DUNS number for an 
entity receiving a subaward to the non-Federal entity that is making 
the subaward, for use in reporting information about the subaward under 
the Transparency Act.
    (2) The conditions under which an agency may exempt an entity are--
    (i) For any entity, if the agency determines that it must protect 
information about the entity from disclosure, to avoid compromising 
classified information or national security or jeopardizing the 
personal safety of the entity's clients.
    (ii) For a foreign entity applying for or receiving an award or 
subaward for a project or program performed outside the United States, 
if the agency deems it to be impractical for the entity to comply with 
the requirement(s).


Sec.  25.115  Deviations.

    Deviations from this part require the prior approval of the Office 
of Management and Budget (OMB).

Subpart B--Policy


Sec.  25.200  Requirements for program announcements, regulations, and 
application instructions.

    (a) Each agency that awards types of Federal financial assistance 
included in the definition of ``award'' in Sec.  25.305 must include 
the requirements described in paragraph (b) of this section in each 
program announcement, regulation, or other issuance containing 
instructions for applicants that either:
    (1) Is issued on or after the effective date of this part; or
    (2) Has application or plan due dates or anticipated award dates 
after October 1, 2010.
    (b) The program announcement, regulation, or other issuance must 
require each entity that applies and does not have an exception under 
Sec.  25.110 to:
    (1) Be registered in the CCR prior to submitting an application or 
plan;
    (2) Maintain an active CCR registration with current information at 
all times during which it has an active Federal award or an application 
or plan under consideration by an agency; and
    (3) Provide its DUNS number in each application or plan it submits 
to the agency.
    (c) For purposes of this policy:
    (1) The applicant is the entity that meets the agency's or 
program's eligibility criteria and has the legal authority to apply and 
to receive the award. For example, if a consortium applies for an award 
to be made to the consortium as the recipient, the consortium must have 
a DUNS number. If a consortium is eligible to receive funding under an 
agency program but the agency's policy is to make the award to a lead 
entity for the consortium, the DUNS number of the lead entity will be 
used.
    (2) A ``program announcement'' is any paper or electronic issuance 
that an agency uses to announce a funding opportunity, whether it is 
called a ``program announcement,'' ``notice of funding availability,'' 
``broad agency announcement,'' ``research announcement,'' 
``solicitation,'' or something else.


Sec.  25.205  Effect of noncompliance with a requirement to obtain a 
DUNS number or register in the CCR.

    (a) An agency may not make an award to an entity until the entity 
has complied with the requirements described in Sec.  25.200 to provide 
a valid DUNS number and maintain an active CCR registration with 
current information (other than any requirement that is not applicable 
because the entity is excepted under Sec.  25.110).
    (b) At the time an agency is ready to make an award, if the 
intended recipient has not complied with an applicable requirement to 
provide a DUNS number or maintain an active CCR registration with 
current information, as specified in the program announcement or other 
instructions, the agency:
    (1) May determine that the applicant is not qualified to receive an 
award; and
    (2) May use that determination as a basis for making an award to 
another applicant.


Sec.  25.210  Authority to modify agency application forms or formats.

    To implement the policies in Sec. Sec.  25.200 and 25.205, an 
agency may add a DUNS number field to application forms or formats 
previously approved by OMB, without having to obtain further approval 
to add the field.


Sec.  25.215  Requirements for agency information systems.

    Each agency that makes awards (as defined in Sec.  25.325) must 
ensure that systems processing information related to the awards, and 
other systems as appropriate, are able to accept and use the DUNS 
number as the universal identifier for financial assistance applicants 
and recipients.


Sec.  25.220  Use of award term.

    (a) To accomplish the purposes described in Sec.  25.100, an agency 
must include in each award (as defined in Sec.  25.305) the award term 
in Appendix A to this part.
    (b) An agency may use different letters and numbers than those in 
Appendix A to this part to designate the paragraphs of the award term, 
if necessary, to conform the system of paragraph designations with the 
one used in other terms and conditions in the agency's awards.

Subpart C--Definitions


Sec.  25.300  Agency.

    Agency means a Federal agency as defined at 5 U.S.C. 551(1) and 
further clarified by 5 U.S.C. 552(f).


Sec.  25.305  Award.

    (a) Award means an award of Federal financial assistance that a 
non-Federal entity described in Sec.  25.110(a) receives or administers 
in the form of--
    (1) A grant;
    (2) A cooperative agreement (which does not include a cooperative 
research and development agreement pursuant to the Federal Technology 
Transfer Act of 1986, as amended (15 U.S.C. (3710(a));
    (3) A loan;
    (4) A loan guarantee;
    (5) A subsidy;
    (6) Insurance;
    (7) Food commodities;
    (8) A direct appropriation;
    (9) Assessed or voluntary contributions; or
    (10) Any other financial assistance transaction that authorizes the 
non-Federal entity's expenditure of Federal funds.
    (b) An Award does not include:
    (1) Technical assistance, which provides services in lieu of money; 
and
    (2) A transfer of title to Federally owned property provided in 
lieu of money, even if the award is called a grant.


Sec.  25.310  Central Contractor Registration (CCR).

    Central Contractor Registration (CCR) has the meaning given in 
paragraph C.1 of the award term in Appendix A to this part.


Sec.  25.315  Data Universal Numbering System (DUNS) Number.

    Data Universal Numbering System (DUNS) Number has the meaning given 
in paragraph C.2 of the award term in Appendix A to this part.


Sec.  25.320  Entity.

    Entity, as it is used in this part, has the meaning given in 
paragraph C.3 of the award term in Appendix A to this part.

[[Page 7324]]

Sec.  25.325  For-profit organization.

    For-profit organization means a non-Federal party organized for 
profit. It includes, but is not limited to:
    (a) An ``S corporation'' incorporated under Subchapter S of the 
Internal Revenue Code;
    (b) A corporation incorporated under another authority;
    (c) A partnership;
    (d) A limited liability corporation or partnership; and
    (e) A sole proprietorship.


Sec.  25.330  Foreign public entity.

    Foreign public entity means:
    (a) A foreign government or foreign governmental entity;
    (b) A public international organization, which is an organization 
entitled to enjoy privileges, exemptions, and immunities as an 
international organization under the International Organizations 
Immunities Act (22 U.S.C. 288-288(f));
    (c) An entity owned (in whole or in part) or controlled by a 
foreign government; and
    (d) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.


Sec.  25.335  Indian tribe (or ``Federally recognized Indian tribe'').

    Indian tribe (or ``Federally recognized Indian tribe'') means any 
Indian tribe, band, nation, or other organized group or community, 
including any Alaskan Native village or regional or village corporation 
(as defined in, or established under, the Alaskan Native Claims 
Settlement Act (43 U.S.C. 1601, et seq.)) 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.


Sec.  25.340  Local government.

    Local government means a:
    (a) County;
    (b) Borough;
    (c) Municipality;
    (d) City;
    (e) Town;
    (f) Township;
    (g) Parish;
    (h) Local public authority, including any public housing agency 
under the United States Housing Act of 1937;
    (i) Special district;
    (j) School district;
    (k) Intrastate district;
    (l) Council of governments, whether or not incorporated as a 
nonprofit corporation under State law; and
    (m) Any other instrumentality of a local government.


Sec.  25.345  Nonprofit organization.

    Nonprofit organization--
    (a) Means any corporation, trust, association, cooperative, or 
other organization that--
    (1) Is operated primarily for scientific, educational, service, 
charitable, or similar purposes in the public interest;
    (2) Is not organized primarily for profit; and
    (3) Uses net proceeds to maintain, improve, or expand the 
operations of the organization.
    (b) Includes nonprofit--
    (1) Institutions of higher education;
    (2) Hospitals; and
    (3) Tribal organizations other than those included in the 
definition of ``Indian tribe.''


Sec.  25.350  State.

    State means--
    (a) Any State of the United States;
    (b) The District of Columbia;
    (c) Any agency or instrumentality of a State other than a local 
government or State-controlled institution of higher education;
    (d) The Commonwealths of Puerto Rico and the Northern Mariana 
Islands; and
    (e) The United States Virgin Islands, Guam, American Samoa, and a 
territory or possession of the United States.


Sec.  25.355  Subaward.

    Subaward has the meaning given in paragraph C.4 of the award term 
in Appendix A to this part.


Sec.  25.360  Subrecipient.

    Subrecipient has the meaning given in paragraph C.5 of the award 
term in Appendix A to this part.

Appendix A to Part 25--Award Term

    I. Central Contractor Registration and Universal Identifier 
Requirements.
    A. Requirement for recipients. Unless you are excepted from this 
requirement under 2 CFR 25.110, you as the recipient must maintain 
the currency of your information in the Central Contractor 
Registration (CCR) until you submit the final financial report 
required under this award or receive the final payment, whichever is 
later.
    B. Requirement for subrecipients. If you are authorized to make 
subawards under this award, you:
    1. Must notify potential subrecipients that no entity (see 
definition in paragraph C of this award term) may receive a subaward 
from you unless the entity has provided its Data Universal Numbering 
System (DUNS) number to you and is registered in the CCR.
    2. May not make a subaward to an entity unless the entity has 
provided its DUNS number to you and is registered in the Central 
Contractor Registration.
    C. Definitions. For purposes of this award term:
    1. Central Contractor Registration (CCR) means the Federal 
repository into which an entity must provide information required 
for the conduct of business as a recipient. Additional information 
about registration procedures may be found at the CCR Internet site 
(currently at http://www.ccr.gov).
    2. Data Universal Numbering System (DUNS) number means the nine-
digit number established and assigned by Dun and Bradstreet, Inc. 
(D&B) to uniquely identify business entities. A DUNS number may be 
obtained from D&B by telephone (currently 866-705-5711) or the 
Internet (currently at http://fedgov.dnb.com/webform).
    3. Entity, as it is used in this award term, means all of the 
following, as defined at 2 CFR part 25, subpart C:
    a. A Governmental organization, which is a State, local 
government, or Indian tribe;
    b. A foreign public entity;
    c. A domestic or foreign nonprofit organization;
    d. A domestic or foreign for-profit organization; and
    e. A Federal agency, but only as a subrecipient under an award 
or subaward to a non-Federal entity.
    4. Subaward:
    a. This term means a legal instrument to provide support for the 
performance of any portion of the substantive project or program for 
which you received this award and that you as the recipient award to 
an eligible subrecipient.
    b. The term does not include your procurement of property and 
services needed to carry out the project or program (for further 
explanation, see Sec. ----.210 of the attachment to OMB Circular A-
133, ``Audits of States, Local Governments, and Non-Profit 
Organizations'').
    c. A subaward may be provided through any legal agreement, 
including an agreement that you consider a contract.
    5. Subrecipient means an entity that:
    a. Receives a subaward from you under this award; and
    b. Is accountable to you for the use of the Federal funds 
provided by the subaward.

PART 26--[RESERVED]

PART 27--ANNOUNCEMENTS OF FUNDING OPPORTUNITIES

Sec.
27.5 Purpose of this part.
27.10 Applicability.
27.15 Federal agency implementation.
Subpart A--Competition--[Reserved]
Subpart B--Form and Content of Announcements
27.200 Purpose of subpart B.
27.205 Definition of ``program announcement''.
27.210 Use of the Governmentwide standard format for program 
announcements.
Subpart C--Issuance
27.300 Purpose of subpart C.
27.305 Electronic posting of program announcements.

[[Page 7325]]

27.310 Grants.gov posting of synopses of program announcements.
Appendix A to Part 27--Governmentwide Standard Announcement Format


    Authority: 31 U.S.C. 503; Reorganization Plan No. 2 of 1970; 
E.O. 11541, 35 FR 10737, 3 CFR, 1966-1970, p. 939; Sec. 872, Pub. L. 
110-417, 122 Stat. 4555.


Sec.  27.5  Purpose of this part.

    This part provides the Office of Management and Budget (OMB) 
guidance for a Federal agency's responsibilities at the time of the 
announcement of a funding opportunity for a program under which the 
agency may make discretionary grant or cooperative agreement awards.


Sec.  27.10  Applicability.

    (a) Types of entities. This part provides OMB guidance only to 
Federal agencies. Federal agencies' implementation of this part governs 
the rights and responsibilities of other entities affected by the 
guidance, which may include both--
    (1) Organizations other than Federal agencies; and
    (2) Individuals.
    (b) Programs. This part applies to any Federal agency program under 
which the agency may make discretionary awards of grants and 
cooperative agreements.


Sec.  27.15  Federal agency implementation.

    Each Federal agency with offices that make discretionary grant or 
cooperative agreement awards must issue any needed direction to those 
offices to require conformance with the policies and procedures in this 
part. It must:
    (a) Issue any implementation other than a regulation within six 
months of the issuance of the part or any change to it.
    (b) Submit any regulatory implementation to the OMB for review 
within nine months of the issuance of this part or update to it, prior 
to publication for comment, and issue final regulations within eighteen 
months of the issuance.

Subpart A--Competition--[Reserved]

Subpart B--Form and Content of Announcements


Sec.  27.200  Purpose of subpart B.

    The purpose of this subpart is to provide guidance on the 
substantive content and format of Federal agencies' program 
announcements.


Sec.  27.205  Definition of ``program announcement''.

    For the purposes of this part, a ``program announcement'' is any 
paper or electronic issuance that an agency uses to announce a funding 
opportunity under which it may make discretionary grant or cooperative 
agreement awards, whether that issuance is called a ``program 
announcement,'' ``notice of funding availability,'' ``broad agency 
announcement,'' ``research announcement,'' ``solicitation,'' or 
something else.


Sec.  27.210  Use of the Governmentwide standard format for program 
announcements.

    (a) The format in the Appendix to this part is the Governmentwide 
standard format for program announcements under which agencies make 
discretionary awards of grants or cooperative agreements. An agency 
must use this format for:
    (1) All program announcements except those under which domestic 
entities are not eligible recipients; and
    (2) All programs except those that do not issue separate 
announcements apart from their program descriptions in the Catalog of 
Federal Domestic Assistance (CFDA). For those excepted programs, the 
format will continue to conform to the guidance in OMB Circular A-89 
for program information in the CFDA.
    (b) To comply with the policy in paragraph (a) of this section, 
each agency program announcement:
    (1) Must include the information elements that are marked 
``required'' in the standard format in Appendix A to this part. It must 
include the information elements in the sequence provided and the 
content of each element must conform with guidance that the standard 
format provides for that element.
    (2) May also include any or all of the elements that are marked 
``optional'' in the standard format, as appropriate for the particular 
program. Whether or not the announcement includes any ``optional'' 
elements, the information that the announcement does include must be 
organized to conform with the standard format.
    (c) An agency must request exceptions from OMB for any program 
announcement with information organized in a way that deviates from the 
policy in this section.
    (d) An agency, at its discretion, may extend the use of the format 
in the Appendix to this part to programs that use forms of financial 
assistance other than grants and cooperative agreements.

Subpart C--Issuance


Sec.  27.300  Purpose of subpart C.

    The purpose of this subpart is to provide guidance related to the 
release of the program announcement to the public.


Sec.  27.305  Electronic posting of program announcements.

    (a) Each agency must post on the Web or Internet each program 
announcement under which domestic entities are eligible recipients. 
Ways to comply with this requirement include, but are not limited to:
    (1) Publication of an announcement in the Federal Register, since 
it is available on the Internet.
    (2) Posting an announcement at Grants.gov (see Sec.  
27.310(b)(2)(iii)).
    (b) If an agency has a statutory or policy requirement to publish 
an announcement at a location that is not on the Web or Internet, it 
must comply with that requirement also (i.e., not in lieu of posting 
the announcement as described in paragraph (a) of this section).


Sec.  27.310  Grants.gov posting of synopses of program announcements.

    (a) Policy. It is a policy of the Federal Government to make 
available to the public at Grants.gov (or an alternative Web site or 
Internet location, if specified by OMB) a synopsis of each program 
announcement that may lead to discretionary awards of grants or 
cooperative agreements, in order to provide potential applicants:
    (1) Enough information about the funding opportunity to decide 
whether they are interested in viewing the full program announcement;
    (2) One or more ways (e.g., an Internet site, e-mail address or 
telephone number) to get the full announcement with the detailed 
information about the funding opportunity; and
    (3) A single Web site to search for all Federal grant opportunities 
by key word, date, CFDA number, or specific agency or agencies.
    (b) General requirement. (1) Each agency:
    (i) Must post a synopsis of each program announcement under which 
it will make discretionary awards of grants and cooperative agreements 
at Grants.gov (http://www.grants.gov) or an alternative Web site or 
Internet address designated by OMB.
    (ii) Is encouraged to post any other funding opportunities at the 
designated site.
    (2) Each synopsis must:
    (i) Follow the format provided at the designated site.
    (ii) Use the standard data elements at that site and provide 
information for all required data elements. The synopsis must include 
the CFDA number unless the program has an exception from that

[[Page 7326]]

requirement, in which case the agency must obtain an alternate 
identifier from the Grants.gov Program Management Office for use in the 
synopsis.
    (iii) Either--
    (A) State that the full announcement also may be found at 
Grants.gov FIND, if the agency elects to post it at that site; or
    (B) Provide a link to the Uniform Resource Locator (URL) for the 
full program announcement if the agency elects to post it at another 
site.
    (iv) Be posted no later than 3 business days after release of the 
full program announcement.
    (c) Exceptions. The requirements in paragraph (b) of this section 
do not apply to:
    (1) An agency program that does not issue a separate announcement 
apart from its program descriptions in the CFDA.
    (2) A program announcement under which no award will have a total 
value of $25,000 or more and for which 100 percent of eligible 
applicants are foreign entities that reside or are located outside the 
United States.
    (3) A single source program announcement under which all awards are 
directed to known recipients.

Appendix A to Part 27--Governmentwide Standard Announcement Format

Subdivision 1. How To Use This Appendix

I. Content and Organization of This Appendix

    Sections I and II of Subdivision 2 of this appendix provide 
guidance for the two segments of a program announcement. Section I, 
``Overview Information,'' describes both required and optional 
information elements to precede the full text of an announcement. 
Section II, ``Full Text of Announcement,'' defines sections into 
which detailed information about a funding opportunity is to be 
organized and provides guidance on the required and optional content 
of each section of the program announcement.

II. Standard Scheme for Designating Announcement Sections

    Note that letters and numbers that an agency uses to designate 
sections within the program announcement should adhere to the 
standard scheme shown in the table following this paragraph. Using 
the standard scheme will make it easier for potential applicants to 
locate specific types of information about the funding opportunity. 
If an agency elects not to include material in a section that is 
optional, the agency should reserve that section in order to 
preserve the designations of subsequent sections. The sections of 
the overview and full text segments of an announcement, shown in the 
form of a notional table of contents, are:

------------------------------------------------------------------------
                                Notional table of contents, showing both
   Segment of announcement           required and optional sections
------------------------------------------------------------------------
A. Overview information        I. OVERVIEW OF THE FUNDING OPPORTUNITY
 preceding the full text.      A. Required Overview Content
                               1. Federal Agency Name(s)--Required.
                                    2. Funding Opportunity Title--
                                     Required.
                                    3. Announcement Type--Required.
                                    4. Funding Opportunity Number--
                                     Required, if Applicable.
                                    5. Catalog of Federal Domestic
                                     Assistance (CFDA) Number(s)--
                                     Required.
                                    6. Dates--Required.
                                  B. Optional Overview Content
B. Full text of announcement.  II. DETAILED INFORMATION ABOUT THE
                                FUNDING OPPORTUNITY
                                  A. Funding Opportunity Description--
                                   Required
                                  B. Award Information--Required
                                  C. Eligibility Information
                                    1. Eligible Applicants--Required.
                                    2. Cost Sharing or Matching--
                                     Required.
                                    3. Dun and Bradstreet Universal
                                     Numbering System (DUNS) Number and
                                     Central Contractor Registration
                                     (CCR)--Required.
                                    4. Other--Required, if applicable.
                                  D. Application and Submission
                                   Information
                                    1. Address To Request Application
                                     Package--Required.
                                    2. Content and Form of Application
                                     Submission--Required.
                                    3. Submission Dates and Times--
                                     Required.
                                    4. Intergovernmental Review--
                                     Required, if applicable.
                                    5. Funding Restrictions--Required.
                                    6. Other Submission Requirements--
                                     Required.
                                  E. Application Review Information
                                    1. Criteria--Required.
                                    2. Review and Selection Process--
                                     Required.
                                    3. Recipient Qualification--
                                     Required.
                                    4. Anticipated Announcement and
                                     Award Dates--Optional.
                                  F. Award Administration Information
                                    1. Award Notices--Required.
                                    2. Administrative and National
                                     Policy Requirements--Required.
                                    3. Reporting--Required.
                                  G. Agency Contact(s)--Required
                                  H. Other Information--Optional
------------------------------------------------------------------------

III. How To Use the Guidance for the Full Text of a Program 
Announcement

    A. The guidance in section II of Subdivision 2 of this appendix 
is organized into sections corresponding to the sections of the full 
text of the announcement. Immediately following the title of each 
section is an indicator stating whether that section is required in 
every announcement or is an agency option.
    B. The format is designed so that similar types of information 
will appear in the same sections in announcements of different 
Federal funding opportunities. Toward that end, there is text in 
each section of guidance in Section II of Subdivision 2 of this 
appendix to describe the types of information that an agency would 
include in the corresponding section of an announcement.
    C. An agency that wishes to include information on a subject 
that the format does not specifically discuss may address that 
subject in whichever section(s) is most appropriate. For example, if 
an agency chooses to address performance goals in the announcement, 
it might do so in the funding

[[Page 7327]]

opportunity description, the application content, and/or the 
reporting requirements.
    D. Similarly, when the guidance in Section II of Subdivision 2 
of this appendix calls for a type of information to be in one 
particular section of the announcement, an agency wishing to address 
that subject in other sections may elect to repeat the information 
in those sections or use cross references between the sections 
(there should be hyperlinks for cross-references in any electronic 
versions of the announcement). For example, an agency may want to 
include in subsection II.A information about the types of recipients 
who are eligible to apply. The format specifies a standard location 
for that information in subsection II.C.1 but that does not preclude 
repeating the information in subsection II.A or creating a cross 
reference between subsections II.A and II.C.1, as long as a 
potential applicant can find the information quickly and easily from 
the standard location.

Sudivision 2. The Announcement Format

I. Overview Segment of the Program Announcement

    A. Required overview content. The agency must display 
prominently the information described in paragraphs I.A.1 through 
I.A.6 of this subdivision, in the sequential order shown, in a 
location preceding the full text of the announcement.
    1. Federal Agency Name(s)--Required. Include the name of your 
department or agency and the specific office(s) within the agency 
(e.g., bureau, directorate, division, or institute) that are 
involved in the funding opportunity.
    2. Funding Opportunity Title--Required. If your agency has a 
program name that is different from the Funding Opportunity Title, 
you also could include that name here.
    3. Announcement Type--Required. Indicate whether this is the 
initial announcement of this funding opportunity or a modification 
of a previously announced opportunity. If it modifies a previous 
announcement, provide the date of that announcement and identify the 
portions that are being modified. Note that a modification does not 
need to include all of the sections of the full announcement text.
    4. Funding Opportunity Number--Required, if applicable. Your 
agency may wish to assign identifying numbers to announcements. If 
you assign a number, you must include it. If it modifies a previous 
announcement, provide the number of that announcement.
    5. Catalog of Federal Domestic Assistance (CFDA) Number(s)--
Required. You also may wish to include the program name listed in 
the CFDA for each CFDA number that you give.
    6. Dates--Required. Include key dates that potential applicants 
need to know. Key dates include due dates for applications or 
Executive Order 12372 submissions, as well as any letters of intent 
or pre-applications. For any announcement issued before a program's 
application materials are available, key dates also include the date 
on which those materials will be released.
    B. Optional, additional overview content. Following the required 
overview information described above, the agency may present other 
information. Present any optional overview information in a 
sequential order that parallels the organization of the full text of 
the announcement. Examples of overview information that could help 
potential applicants decide whether to read the full announcement 
are: A concise description of the funding opportunity, the total 
amount to be awarded, the anticipated amounts and/or numbers of 
individual awards, the types of instruments that may be awarded, who 
is eligible to apply, whether cost sharing is required, and any 
limitations on the numbers of applications that each applicant may 
submit. You also may include other information that could later help 
applicants more quickly and easily find what they need (e.g., where 
one can get application materials).
    C. Method of presentation. The agency may include the summary 
information in any of the following ways:
    1. Executive summary. An agency may wish to include an executive 
summary of the announcement before the full text. Especially for 
announcements that are long (25 pages or more in length) or complex, 
agencies should consider including executive summaries with at least 
the required overview information described above in subsection I.A 
of this subdivision, as well as any additional information described 
in subsection I.B. An executive summary should be short, preferably 
one page, with information in concise bullets to give an overview of 
the funding opportunity.
    2. Cover and/or inside cover. If the agency does not wish to 
include an executive summary, an alternative is to provide at least 
the required overview information described above in subsection I.A 
of this subdivision on the cover and/or inside cover of the 
announcement (or the first screen a potential applicant would see, 
in the case of an electronic announcement).
    3. Federal Register format. For an announcement that appears as 
a notice in the Federal Register, some of the required overview 
information will appear with other information near the beginning of 
the notice, due to the Federal Register's standard format for 
notices. Nonetheless, the agency must display the required overview 
information (described above in subsection I.A of this subdivision) 
in a single location preceding the full text of the announcement, 
which would be in the SUPPLEMENTARY INFORMATION section of the 
Federal Register notice. The agency may elect to include additional 
information, as described above in subsection I.B of this 
subdivision.

II. Full Text of Announcement

A. Funding Opportunity Description--Required

    This subsection contains the full programmatic description of 
the funding opportunity. It may be as long as needed to adequately 
communicate to potential applicants the areas in which funding may 
be provided. It describes the agency's funding priorities or the 
technical or focus areas in which the agency intends to provide 
assistance. As appropriate, it may include any program history 
(e.g., whether this is a new program or a new or changed area of 
program emphasis). This subsection may communicate indicators of 
successful projects (e.g., if the program encourages collaborative 
efforts) and may include examples of projects that have been funded 
previously. This subsection also may include other information the 
agency deems necessary, such as citations for authorizing statutes 
and regulations for the funding opportunity.

B. Award Information--Required

    1. Provide sufficient information to help an applicant make an 
informed decision about whether to submit a proposal. Relevant 
information could include the total amount of funding that your 
agency expects to award through the announcement; the anticipated 
number of awards; the expected amounts of individual awards (which 
may be a range); the amount of funding per award, on average, 
experienced in previous years; and the anticipated start dates and 
periods of performance for new awards. This subsection also should 
address whether applications for renewal or supplementation of 
existing projects are eligible to compete with applications for new 
awards.
    2. This subsection also must indicate the type(s) of assistance 
instrument (i.e., grant, cooperative agreement, and/or other 
instrument) that may be awarded if applications are successful. If 
cooperative agreements may be awarded, this subsection either should 
describe the ``substantial involvement'' that the agency expects to 
have or should reference where the potential applicant can find that 
information (e.g., in the funding opportunity description in 
subsection II.A of this subdivision or award administration 
information in subsection II.F). If procurement contracts also may 
be awarded, you must say so.

C. Eligibility Information

    This subsection addresses considerations or factors that make an 
applicant or application eligible or ineligible for consideration. 
This includes the eligibility of particular types of applicant 
organizations, any factors affecting the eligibility of the 
principal investigator or project director, and any criteria that 
make particular projects ineligible. You should make clear whether 
an applicant's failure to meet an eligibility criterion by the time 
of an application deadline will result in your agency's returning 
the application without review or, even though an application may be 
reviewed, will preclude the agency from making an award. Key 
elements to be addressed are:

1. Eligible Applicants--Required

    You must clearly identify the types of entities that are 
eligible to apply. If there are no restrictions on eligibility, this 
paragraph may simply indicate that all potential applicants are 
eligible. If there are restrictions on eligibility, it is important 
to be clear about the specific types of entities that are eligible, 
not just the types that are ineligible. For example, if your program 
is limited to non-profit organizations subject to Section 501(c)(3) 
of the tax code, your announcement should say so. Similarly, it is 
better to state explicitly that Native American

[[Page 7328]]

tribal organizations are eligible than to assume that they can 
unambiguously infer that from a statement that non-profit 
organizations may apply. Eligibility also can be expressed by 
exception, (e.g., open to all types of domestic applicants other 
than individuals). This paragraph should refer to any portion of 
subsection II.D specifying documentation that must be submitted to 
support an eligibility determination (e.g., proof of 501(c)(3) 
status as determined by the Internal Revenue Service or an 
authorizing tribal resolution). To the extent that any funding 
restriction in paragraph II.D.5 could affect the eligibility of an 
applicant or project, you must either restate that restriction in 
this section or provide a cross-reference to its description in 
paragraph II.D.5.

2. Cost Sharing or Matching--Required

    You must state whether there is required cost sharing, matching, 
or cost participation without which an application would be 
ineligible (if cost sharing is not required, you must explicitly say 
so). Required cost sharing may be a certain percentage or amount, or 
may be in the form of contributions of specified items or activities 
(e.g., provision of equipment). It is important that the 
announcement be clear about any restrictions on the types of cost 
(e.g., in-kind contributions) that are acceptable as cost sharing. 
Cost sharing as an eligibility criterion includes requirements based 
in statute or regulation, as well as those imposed by administrative 
decision of the agency. This paragraph should refer to the 
appropriate portion(s) of subsection II.D stating any pre-award 
requirements for submission of letters or other documentation to 
verify commitments to meet cost-sharing requirements if an award is 
made.

3. Dun and Bradstreet Universal Numbering System (DUNS) Number and 
Central Contractor Registration (CCR)--Required

    This paragraph must state clearly that each applicant (unless 
the applicant is an individual or Federal agency that is excepted 
from those requirements under 2 CFR 25.110(b) or (c), or has an 
exception approved by the agency under 2 CFR 25.110(d)) is required 
to: (i) Be registered in the CCR prior to submitting its 
application; (ii) provide a valid DUNS number in its application; 
and (iii) continue to maintain an active CCR registration with 
current information at all times during which it has an active 
Federal award or an application or plan under consideration by an 
agency. It also must state that the agency may not make an award to 
an applicant until the applicant has complied with all applicable 
DUNS and CCR requirements and, if an applicant has not fully 
complied with the requirements by the time the agency is ready to 
make an award, the agency may determine that the applicant is not 
qualified to receive an award and use that determination as a basis 
for making an award to another applicant.

4. Other--Required, if Applicable

    If there are other eligibility criteria (i.e., criteria that 
have the effect of making an application or project ineligible for 
award, whether you refer to them as ``responsiveness'' criteria, 
``go-no go'' criteria, ``threshold'' criteria, or in other ways), 
you must clearly state them. For example, if entities that have been 
found to be in violation of a particular Federal statute are 
ineligible, it is important to say so. In this paragraph you also 
must state any limit on the number of applications an applicant may 
submit under the announcement and make clear whether the limitation 
is on the submitting organization, individual investigator/program 
director, or both. Also use this paragraph to address any 
eligibility criteria for beneficiaries or for program participants 
other than award recipients.

D. Application and Submission Information

1. Address To Request Application Package--Required

    You must tell potential applicants how to get application forms, 
kits, or other materials they need to apply (if this announcement 
contains everything they need, this paragraph need only say so). You 
may give an Internet address where they can access the materials.\1\ 
Since high-speed Internet access is not yet universally available 
for downloading documents, there also should be a way for potential 
applicants to request paper copies of materials, such as a U.S. 
Postal Service mailing address, telephone or FAX number, Telephone 
Device for the Deaf (TDD) or Text Telephone (TTY) number, and/or 
Federal Information Relay Service (FIRS) number.
---------------------------------------------------------------------------

    \1\ With respect to electronic methods for providing information 
about funding opportunities or accepting applicants' submissions of 
information, each agency is responsible for compliance with Section 
508 of the Rehabilitation Act of 1973, as amended by the Workforce 
Investment Act of 1998.
---------------------------------------------------------------------------

2. Content and Form of Application Submission--Required

    a. This paragraph must identify the required content of an 
application and the forms or formats that an applicant must use to 
submit it. If any requirements are stated elsewhere because they are 
general requirements that apply to multiple programs or funding 
opportunities, this paragraph may refer to where those requirements 
may be found. This paragraph also should address any preliminary 
submissions that the agency requires or encourages, either to 
facilitate its own planning or to provide potential applicants with 
feedback to help them decide whether to submit a full proposal.
    b. For a full application, this includes all content and forms 
or formats that constitute a complete application, including: 
General information (e.g., applicant name and address), budgetary 
information, narrative programmatic information, biographical 
sketches, and all other required information (e.g., documentation 
that an applicant meets stated eligibility criteria or 
certifications or assurances of compliance with applicable 
requirements, such as evidence of compliance with human subjects 
requirements). You must either include required forms or formats as 
part of this announcement or state where the applicant may obtain 
them.
    c. In paragraph II.D.2, you should specifically address content 
and form or format requirements for:
    i. Pre-applications, letters of intent, or white papers that 
your agency requires or encourages (see paragraph II.D.3), including 
any limitations on the number of pages or other formatting 
requirements similar to those for full applications.
    ii. The application as a whole. For hard copy submissions, that 
could include any limitations on the number of pages, font size and 
typeface, margins, paper size, number of copies, and sequence or 
assembly requirements. If electronic submission is permitted or 
required,\2\ that could include special requirements for formatting 
or signatures.
---------------------------------------------------------------------------

    \2\ See footnote 1 to subdivision II, paragraph II.D.1 of this 
appendix.
---------------------------------------------------------------------------

    iii. Component pieces of the application (e.g., if all copies of 
the application must bear original signatures on the face page or 
the program narrative may not exceed 10 pages). This includes any 
pieces that may be submitted separately by third parties (e.g., 
references or letters confirming commitments from third parties that 
will be contributing a portion of any required cost sharing).
    iv. Information that successful applicants must submit after 
your agency notifies them of its intent to make awards, but prior to 
award. This could include evidence of compliance with human subjects 
requirements or information your agency needs to comply with the 
National Environmental Policy Act (NEPA).

3. Submission Dates and Times--Required

    a. Your announcement must identify due dates and times for all 
submissions. This includes not only the full applications but also 
any preliminary submissions (e.g., letters of intent, white papers, 
or pre-applications). It also includes any other submissions of 
information before award that are separate from the full 
application. If the funding opportunity is a general announcement 
that is open for a period of time with no specific due dates for 
applications, paragraph II.D.3 should say so. Note that the 
information on dates that is included in this paragraph also must 
appear with other overview information in a location preceding the 
full text of the announcement (see ``Overview Information'' segment 
of this format, in section I of this subdivision).
    b. For each type of submission that you address, indicate 
whether the submission is encouraged or required and, if required, 
any deadline date for submission (or dates, if the agency plans more 
than one cycle of application submission, review, and award under 
the announcement). The announcement must state (or provide a 
reference to another document that states):
    i. Any deadline in terms of a date and local time.
    ii. What the deadline means (e.g., whether it is the date and 
time by which the agency must receive the application, the date by 
which the application must be postmarked, or something else) and how 
that depends, if at all, on the submission method (e.g., mail, 
electronic, or personal/courier delivery).
    iii. The effect of missing a deadline (e.g., whether late 
applications are neither reviewed nor considered or are reviewed and 
considered under some circumstances).

[[Page 7329]]

    iv. How the receiving Federal office determines whether an 
application or pre-application has been submitted before the 
deadline. This includes the form of acceptable proof of mailing or 
system-generated documentation of receipt date and time.
    c. Paragraph II.D.3 also may indicate whether, when, and in what 
form the applicant will receive an acknowledgment of receipt.
    d. You should consider displaying the above information in ways 
that will be easy to understand and use. It can be difficult to 
extract all needed information from narrative paragraphs, even when 
they are well written. A tabular form for providing a summary of the 
information may help applicants for some programs and give them what 
effectively could be a checklist to verify the completeness of their 
application package before submission. For example, a summary table 
might look like:
---------------------------------------------------------------------------

    \3\ See footnote 1 to subdivision II, paragraph II.D.1 of this 
appendix.

----------------------------------------------------------------------------------------------------------------
            What to submit                 Required content     Required form or format     When to submit it
----------------------------------------------------------------------------------------------------------------
i. Preapplication (optional, but       Described in paragraph   Format required by       By (give pre-
 encouraged).                           II.D.2 of this           section -------- of      application due date).
                                        announcement.            grants policy manual
                                                                 (give URL or where to
                                                                 access it).\3\
ii. Application:
    (1) Cover sheet..................  (per required form)....  Form SF-----, available  .......................
                                                                 from (give source).
    (2) Budget information...........  (per required form)....  Form SF-----, available  By (give pre-
                                                                 from (give source).      application due date).
    (3) Narrative....................  Described in paragraph   Format described in      .......................
                                        II.D.2 of this           paragraph II.D.2.
                                        announcement.
    (4) Assurances...................  (per required form)....  Form SF-----, available  .......................
                                                                 from (give source).
    (5) Letters from third parties     Third parties'           No specific form or      .......................
     contributing to cost sharing.      affirmations of          format.
                                        amounts of their
                                        commitments.
iii. Statement of intent to comply     (per required form)....  Form SF-----, available  Prior to award, when
 with human subjects requirements.                               from (give source).      requested by grants
                                                                                          officer (if
                                                                                          application is
                                                                                          successful).
----------------------------------------------------------------------------------------------------------------

4. Intergovernmental Review--Required, if Applicable

    If the funding opportunity is subject to Executive Order (EO) 
12372, ``Intergovernmental Review of Federal Programs,'' you must 
say so. In alerting applicants that they must contact their State's 
Single Point of Contact (SPOC) to find out about and comply with the 
State's process under EO 12372, you may wish to inform them that the 
names and addresses of the SPOCs are listed in the Office of 
Management and Budget's home page at: http://www.whitehouse.gov/omb/grants/spoc.html.

5. Funding Restrictions--Required

    You must include information on funding restrictions in order to 
allow an applicant to develop an application and budget consistent 
with program requirements. Examples are whether construction is an 
allowable activity, if there are any limitations on direct costs 
such as foreign travel or equipment purchases, and if there are any 
limits on indirect costs (or facilities and administrative costs). 
You also must tell applicants if awards will not allow reimbursement 
of pre-award costs.

6. Other Submission Requirements--Required

    a. Paragraph II.D.6 must address any other submission 
requirements not included in the other paragraphs of subsection 
II.D. This might include the format of submission, i.e., paper or 
electronic, for each type of required submission. Applicants should 
not be required to submit in more than one format and paragraph 
II.D.6 should indicate whether they may choose whether to submit 
applications in hard copy or electronically, may submit only in hard 
copy, or may submit only electronically.
    b. Paragraph II.D.6 also must indicate where applications (and 
any pre-applications) must be submitted if sent by postal mail, 
electronic means, or hand-delivery. For postal mail submission, this 
should include the name of an office, official, individual or 
function (e.g., application receipt center) and a complete mailing 
address. For electronic submission, this should include the URL or 
e-mail address; whether a password(s) is required; whether 
particular software or other electronic capabilities are required; 
what to do in the event of system problems and a point of contact 
that will be available in the event the applicant experiences 
technical difficulties.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to subdivision II, paragraph II.D.1 of this 
appendix.
---------------------------------------------------------------------------

E. Application Review Information

1. Criteria--Required

    a. Paragraph II.E.1 must address the criteria that your agency 
will use to evaluate applications. This includes the merit and other 
review criteria that evaluators will use to judge applications, 
including any statutory, regulatory, or other preferences (e.g., 
minority status or Native American tribal preferences) that will be 
applied in the review process. These criteria are distinct from 
eligibility criteria that are addressed before an application is 
accepted for review and any program policy or other factors that are 
applied during the selection process, after the review process is 
completed. The intent is to give applicants visibility into the 
evaluation process so that they can make informed decisions when 
preparing their applications and so that the process is as fair and 
equitable as possible.
    b. The announcement should clearly describe all criteria, 
including any sub-criteria. If criteria vary in importance, the 
announcement should specify the relative percentages, weights, or 
other means used to distinguish among them. For statutory, 
regulatory, or other preferences, the announcement should provide a 
detailed explanation of those preferences with an explicit 
indication of their effect (e.g., whether they result in additional 
points being assigned).
    c. If an applicant's proposed cost sharing will be considered in 
the review process (as opposed to being an eligibility criterion 
described in paragraph II.C.2 of this subdivision), the announcement 
must specifically address how it will be considered (e.g., to assign 
a certain number of additional points to applicants who offer cost 
sharing, or to break ties among applications with equivalent scores 
after evaluation against all other factors). If cost sharing will 
not be considered in the evaluation, the announcement should say so, 
so that there is no ambiguity for potential applicants. Vague 
statements that cost sharing is encouraged, without clarification as 
to what that means, are unhelpful to applicants. It also is 
important that the announcement be clear about any restrictions on 
the types of cost (e.g., in-kind contributions) that are acceptable 
as cost sharing.

2. Review and Selection Process--Required

    a. Paragraph II.E.2 may vary in the level of detail provided. 
The announcement must list any program policy or other factors or 
elements, other than merit criteria, that the selecting official may 
use in selecting applications for award (e.g., geographical 
dispersion, program balance, or diversity).
    b. You also may include other details you deem appropriate. For 
example, paragraph II.E.2 may indicate who is responsible for 
evaluation against the merit criteria (e.g.,

[[Page 7330]]

peers external to the agency or Federal agency personnel) and/or who 
makes the final selections for award. If you have a multi-phase 
review process (e.g., an external panel advising internal agency 
personnel who make final recommendations to the deciding official), 
you may describe the phases. You also may include: The number of 
people on an evaluation panel and how it operates, the way reviewers 
are selected, reviewer qualifications, and the way that conflicts of 
interest are avoided. In addition, if you permit applicants to 
nominate suggested reviewers of their applications or suggest those 
they feel may be inappropriate due to a conflict of interest, that 
information should be included in paragraph II.E.2.

3. Recipient Qualification--Required

    This paragraph must inform potential applicants about the 
standards that will be used to determine that an entity is qualified 
to receive an award, in accordance with the agency's implementation 
of the OMB guidance at 2 CFR 35.115. It must inform them:
    a. That every Federal agency awarding official, prior to making 
an award to an entity, is required by section 872 of the Duncan 
Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. 
L. 110-417) to review and consider any information about the entity 
that is in the Federal Awardee Performance and Integrity Information 
System (FAPIIS);
    b. That an applicant, at its option, may go to FAPIIS (when it 
is available, the FAPIIS Web site should provide information on how 
and where to enter comments) to comment on any information about 
itself that a Federal Government official previously entered and is 
currently in FAPIIS;
    c. That the awarding official will consider that comment, in 
addition to the other information in FAPIIS, in making a judgment 
about the entity's integrity, business ethics, and record of 
performance under Federal awards that may affect the official's 
determination that the applicant is qualified to receive an award.
    d. About any agency-specific standards for recipient 
qualification that the agency uses, as permitted under 2 CFR 
35.115(b).

4. Anticipated Announcement and Award Dates--Optional

    This paragraph is intended to provide applicants with 
information they can use for planning purposes. If there is a single 
application deadline followed by the simultaneous review of all 
applications, the agency can include in this paragraph information 
about the anticipated dates for announcing or notifying successful 
and unsuccessful applicants and for having awards in place. If 
applications are received and evaluated on a ``rolling'' basis at 
different times during an extended period, it may be appropriate to 
give applicants an estimate of the time needed to process an 
application and notify the applicant of the agency's decision.

F. Award Administration Information

1. Award Notices--Required

    This paragraph must address what a successful applicant can 
expect to receive following selection. If your practice is to 
provide a separate notice stating that an application has been 
selected before you actually make the award, this paragraph would be 
the place to indicate that the letter is not an authorization to 
begin performance (to the extent that you allow charging to awards 
of pre-award costs at the recipient's own risk). This paragraph 
should indicate that the notice of award signed by the grants 
officer (or equivalent) is the authorizing document, and whether it 
is provided through postal mail or by electronic means and to whom. 
It also may address the timing, form, and content of notifications 
to unsuccessful applicants.

2. Administrative and National Policy Requirements--Required

    a. Paragraph II.F.2 must identify the usual administrative and 
national policy requirements your agency's awards may include. 
Providing this information lets a potential applicant identify any 
requirements with which it would have difficulty complying if its 
application is successful. In those cases, early notification about 
the requirements allows the potential applicant to decide not to 
apply or to take needed actions before award. The announcement need 
not include all of the award terms and conditions, but may refer to 
a document (with information about how to obtain it) or Internet 
site \5\ where applicants can see the terms and conditions.
---------------------------------------------------------------------------

    \5\ See footnote 1 to subdivision II, paragraph II.D.1 of this 
appendix.
---------------------------------------------------------------------------

    b. If this funding opportunity will lead to awards with some 
special terms and conditions that differ from your agency's usual 
(sometimes called ``general'') terms and conditions, paragraph 
II.F.2 should highlight those special terms and conditions. Doing so 
will alert applicants who have received awards from your agency 
previously and might not otherwise expect different terms and 
conditions. For the same reason, you should inform potential 
applicants about special requirements that could apply to particular 
awards after review of applications and other information, based on 
the particular circumstances of the effort to be supported (e.g., if 
human subjects were to be involved or if some situations may justify 
special terms on intellectual property, data sharing or security 
requirements).

3. Reporting--Required

    This paragraph must include general information about the type 
(e.g., financial or performance), frequency, and means of submission 
(paper or electronic) of post-award reporting requirements. 
Highlight any special reporting requirements for awards under this 
funding opportunity that differ (e.g., by report type, frequency, 
form/format, or circumstances for use) from what your agency's 
awards usually require.

G. Agency Contact(s)--Required

    You must give potential applicants a point(s) of contact for 
answering questions or helping with problems while the funding 
opportunity is open. The intent of this requirement is to be as 
helpful as possible to potential applicants, so you should consider 
approaches such as giving:
    1. Points of contact who may be reached in multiple ways (e.g., 
by telephone, FAX, and/or e-mail, as well as regular mail).
    2. A fax or e-mail address that multiple people access, so that 
someone will respond even if others are unexpectedly absent during 
critical periods.
    3. Different contacts for distinct kinds of help (e.g., one for 
questions of programmatic content and a second for administrative 
questions).

H. Other Information--Optional

    This subsection may include any additional information that will 
assist a potential applicant. For example, the subsection might:
    1. Indicate whether this is a new program or a one-time 
initiative.
    2. Mention related programs or other upcoming or ongoing agency 
funding opportunities for similar activities.
    3. Include Internet addresses for agency Web sites that may be 
useful to an applicant in understanding the program (Note: You 
should make certain that any Internet sites are current and 
accessible).\6\
---------------------------------------------------------------------------

    \6\ See footnote 1 to subdivision II, paragraph II.D.1 of this 
appendix.
---------------------------------------------------------------------------

    4. Alert applicants to the need to identify proprietary 
information and inform them about the way the agency will handle it.
    5. Include certain routine notices to applicants (e.g., that the 
Government is not obligated to make any award as a result of the 
announcement or that only grants officers can bind the Government to 
the expenditure of funds).

PARTS 28-34--[RESERVED]

PART 35--TIME-OF-AWARD RESPONSIBILITIES

Sec.
35.5 Purpose of this part.
35.10 Applicability.
35.15 Federal agency implementation.
Subpart A--Recipient Qualification Matters
35.100 Purpose of subpart A.
35.105 Policy.
35.110 Federal agency awarding officials' responsibilities.
35.115 Standards.
35.120 Required procedures for determining recipient qualification.
35.125 Additional procedures for determining recipient 
qualification.
35.130 Reporting disqualification of a recipient.
Subpart B--The Award
35.200 Purpose of subpart A.
35.205 Award content.
35.275 Use of award term.
Appendix A to Part 35--Award Term for Recipient Integrity and 
Performance Matters

    Authority: 31 U.S.C. 503; Reorganization Plan No. 2 of 1970; 
E.O. 11541, 35 FR 10737, 3 CFR, 1966-1970, p. 939; Sec. 872, Pub. L. 
110-417, 122 Stat. 4555.

[[Page 7331]]

Sec.  35.5  Purpose of this part.

    This part provides the Office of Management and Budget (OMB) 
guidance for Federal agencies' responsibilities at the time of the 
award of a grant or cooperative agreement.


Sec.  35.10  Applicability.

    (a) Types of entities. This part provides OMB guidance only to 
Federal agencies. Federal agencies' implementation of this part governs 
the rights and responsibilities of other entities affected by the 
guidance, which may include both--
    (1) Organizations other than Federal agencies; and
    (2) Individuals.
    (b) Types of awards. This part applies to Federal agencies' grants 
and cooperative agreements.


Sec.  35.15  Federal agency implementation.

    Each Federal agency with offices that award grants or cooperative 
agreements must issue any needed direction to those offices to require 
conformance with the policies and procedures in this part. It must:
    (a) Issue any implementation other than a regulation within six 
months of the issuance of the part or any change to it.
    (b) Submit any regulatory implementation to the OMB for review 
within nine months of the issuance of this part or update to it, prior 
to publication for comment, and issue final regulations within eighteen 
months of the issuance.

Subpart A--Recipient Qualification Matters


Sec.  35.100  Purpose of subpart A.

    The purpose of this subpart is to specify policies and procedures 
for a Federal agency awarding official's determination of recipient 
qualifications prior to award.


Sec.  35.105  Policy.

    (a) General. Federal agency awarding officials normally will award 
grants or cooperative agreements only to qualified recipients that meet 
the standards in Sec.  35.115. This practice conforms with the 
Governmentwide policy to do business only with responsible persons, as 
stated at 2 CFR 180.125(a).
    (b) Exceptions.
    (1) The general policy in paragraph (a) of this section does not 
apply to types of awards listed at 2 CFR 180.215.
    (2) A Federal agency awarding official may make an award to a 
recipient that does not fully meet the standards in Sec.  35.115, as 
described in paragraphs (b)(2)(i) and (ii) of this section, as 
applicable.
    (i) If an entity currently is listed in the Excluded Parties List 
System (EPLS) as being suspended, debarred, or otherwise ineligible for 
the award, the awarding official must comply with the agency's 
implementation of the exception provision in 2 CFR 180.400.
    (ii) If there are special award conditions that can appropriately 
mitigate the effects of the entity's failure to fully meet the 
standards, such as special administrative requirements an agency may 
include in accordance with the agency's implementation of 2 CFR 215.14 
(OMB Circular A-110) or section ----.12 of the Governmentwide common 
rule implementing OMB Circular A-102, then the awarding official may 
make the award with those conditions.


Sec.  35.110  Federal agency awarding officials' responsibilities.

    To comply with the policy in Sec.  35.105, the Federal agency 
awarding official is responsible for determining a recipient's 
qualification prior to award. The official's signature on the award 
document shall signify his or her determination that either:
    (a) The potential recipient meets the standards in Sec.  35.115 and 
is qualified to receive the grant or cooperative agreement; or
    (b) An award is otherwise justified, pursuant to Sec.  35.105(b).


Sec.  35.115  Standards.

    (a) Governmentwide minimum standards. To be qualified, a potential 
recipient must at least--
    (1) Have a satisfactory record of executing programs or activities 
under Federal assistance or procurement awards, if it is a prior 
recipient of such awards; and
    (2) Have a satisfactory record of integrity and business ethics.
    (b) Agency-specific standards. An agency in its implementation of 
this part may establish additional standards for recipient 
qualification.


Sec.  35.120  Required procedures for determining recipient 
qualification.

    (a) Use of Excluded Parties List System (EPLS). (1) In deciding 
that an entity is qualified in accordance with the standards in Sec.  
35.115, a Federal agency awarding official must determine whether the 
entity is identified in the EPLS as being debarred, suspended, or 
otherwise ineligible to receive the award, as required by his or her 
agency's implementation of the Governmentwide guidance on 
nonprocurement debarment and suspension (2 CFR part 180).
    (2) If the entity is listed in the EPLS, the awarding official must 
comply with other applicable provisions of his or her agency's 
implementation of 2 CFR part 180.
    (3) As stated at 2 CFR 180.425 and 180.430, the Federal agency 
awarding official's responsibilities include checking the EPLS for:
    (i) Potential recipients of prime awards; and
    (ii) A recipient's principals (as defined at 2 CFR 180.995), 
potential recipients of subawards, and principals of those potential 
subaward recipients, if Federal agency approval of those principals or 
lower-tier recipients is required under the terms of the award.
    (b) Use of the Federal Awardee Performance and Integrity 
Information System (FAPIIS). (1) For each award with a total value 
expected to exceed the simplified acquisition threshold defined at 41 
U.S.C. 403(11) (currently $100,000), a Federal agency awarding official 
must review any information about the recipient that is contained in 
FAPIIS (which will be at a Web site for which the Universal Resource 
Locator, or URL, is not yet available) and consider all such 
information in making the determination that the recipient meets the 
minimum qualification standards in Sec.  35.115(a).
    (2) For grants, the requirement to consider all information in the 
data system is a statutory requirement under section 872 of the Duncan 
Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 
110-417). This requirement also applies to cooperative agreements as a 
matter of Federal Government policy.
    (3) Awarding officials should note that:
    (i) The data system is required by law to include information about 
all suspensions and debarments that began during the most recent 5-year 
period, which may include suspensions or debarments that subsequently 
expired or were terminated. However, under the Governmentwide policy at 
2 CFR part 180, a suspension or debarment of an entity, or a proposal 
to debar the entity under the Federal Acquisition Regulation, restricts 
the entity's eligibility to receive Federal awards only until the date 
on which the suspension is lifted, the proposed debarment is 
terminated, or the period of debarment expires.
    (ii) Therefore, even though information about an expired or 
terminated suspension or debarment action may be in the data system 
after that date, the relevance of the information to an awarding 
official's determination of an entity's current qualification for an 
award is limited by

[[Page 7332]]

the fact that it is a past action that no longer has an exclusionary 
effect.


Sec.  35.125  Additional procedures for determining recipient 
qualification.

    (a) A Federal agency awarding official may use methods in addition 
to those required under Sec.  35.120 to determine recipient 
qualification. In deciding on appropriate methods to use and levels of 
effort to expend, the Federal agency awarding official should consider 
factors such as:
    (1) Whether the recipient has no previous experience under Federal 
awards and therefore may be unfamiliar with Federal Government 
requirements or not have previously established systems for compliance 
with them;
    (2) Federal agencies' past experience with the recipient;
    (3) The amount of the prospective award and complexity of the 
project or program to be carried out under the award.
    (b) There is no Governmentwide requirement to obtain a pre-award 
credit report, audit, or any other specific piece of information. If a 
Federal agency awarding official judges in a specific case that there 
is a need to obtain any such information to assist in deciding whether 
the recipient meets the standards in Sec.  35.115, then the guidance in 
paragraphs (b)(1) and (2) of this section applies.
    (1) Before judging that a pre-award credit report, audit, or survey 
is needed, the Federal agency awarding official should consider whether 
any pre-existing surveys or audits of the recipient, such as the single 
audit of the recipient's internal control systems under OMB Circular A-
133,\1\ will satisfy the need.
---------------------------------------------------------------------------

    \1\ Electronic copies may be obtained at Internet site http://www.whitehouse.gov/OMB. For paper copies, contact the Office of 
Management and Budget, EOP Publications, 725 17th St., NW., New 
Executive Office Building, Washington, DC 20503.
---------------------------------------------------------------------------

    (2) If the Federal agency awarding official decides to obtain a 
credit report, audit, or other information, and the report or other 
information discloses that a potential recipient is delinquent on a 
debt to an agency of the United States Government, then--
    (i) The Federal agency awarding official must take such information 
into account when determining whether the potential recipient is 
qualified with respect to the grant or cooperative agreement; and
    (ii) If the awarding official decides to make the award to the 
recipient, unless there are compelling reasons to do otherwise, he or 
she must delay the award of the grant or cooperative agreement until 
payment is made or satisfactory arrangements are made to repay the 
debt; and
    (iii) The awarding official should refer to the agency's suspending 
and debarring official any evidence of substantial debt delinquency, as 
described at 2 CFR 180.800(c)(3) as a cause for debarment.


Sec.  35.130  Reporting the disqualification of a recipient.

    (a) Requirement to report a disqualification. (1) Determinations 
that must be reported. If a Federal agency awarding official does not 
make an award to an entity because the official determines that the 
entity does not meet either or both of the minimum qualification 
standards in Sec.  35.115(a), the official must report that 
determination, as described in paragraph (a)(3) of this section, only 
if all of the following apply:
    (i) The only basis for disqualification is the entity's prior 
record of executing programs or activities under Federal awards or its 
record of integrity and business ethics (i.e., the entity was 
determined to be qualified based on all factors other than those two 
standards); and
    (ii) The total value of the award that otherwise would be made to 
the entity is expected to exceed the simplified acquisition threshold 
at 41 U.S.C. 403(11) (currently $100,000).
    (2) Determinations that need not be reported. The official is not 
required to report a determination that an entity is not qualified if 
he or she makes the award to the entity and includes special award 
conditions, as described in Sec.  35.105(b)(2);
    (3) Reporting procedures. The Federal agency awarding official must 
report each determination described in paragraph (a)(1) of this section 
to FAPIIS (which will be at a Web site for which the Universal Resource 
Locator, or URL, is not yet available). The official must provide a 
copy of the notice sent to the disqualified entity and the information 
about the determination that is required at that Internet site.
    (b) Requirement to notify the disqualified entity. If a Federal 
agency awarding official reports a determination that an entity is not 
qualified to FAPIIS, as described in paragraph (a) of this section, the 
official also must notify the entity that--
    (1) The determination was made and reported to FAPIIS;
    (2) The information will be kept in that data system for a period 
of 5 years from the date of the determination, as required by section 
872 of Public Law 110-417, archived for one additional year, and then 
discarded;
    (3) Each awarding official who considers making an award to the 
entity during that period must consider that information in judging 
whether the entity is qualified to receive the award;
    (4) The entity may go to FAPIIS (when it is available, the FAPIIS 
Web site should provide information on how and where to enter comments) 
and comment on any information the data system contains about itself, 
for future consideration by Federal awarding officials; and
    (5) An awarding official will consider that entity's comment in 
determining whether the entity is qualified for a future award.
    (c) Correction or updating of information previously submitted. If 
a Federal agency awarding official, after entering information into the 
data system about a disqualification, subsequently:
    (1) Learns that any of that information is erroneous, he or she 
must correct the information in the data system within 3 business days.
    (2) Obtains an update to that information that could be helpful to 
other Federal agency officials who must use the data system, he or she 
is strongly encouraged to amend the information in the data system to 
incorporate the update in a timely way.
    (d) Source of the requirements. The requirements in this section 
are matters of Federal Government policy that are parallel and 
analogous to the requirements for a Federal contracting officer to 
report a determination that a potential contractor is not presently 
responsible, under section 872 of the Duncan Hunter National Defense 
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417).

Subpart B--The Award


Sec.  35.200  Purpose of subpart B.

    The purpose of this subpart is to specify policies and procedures 
related to the creation, execution, and dissemination of electronic or 
paper award documents and other actions at the time of award.


Sec.  35.205  Award content.

    (a) Responsibility. Each Federal agency must issue any needed 
direction to offices that make awards, to specify that the agency 
official authorized to sign or otherwise approve an award, thereby 
obligating the Government, is responsible for ensuring that the award 
contains the appropriate terms and conditions.
    (b) Governmentwide award terms. Pending issuance of comprehensive 
Governmentwide guidance on award

[[Page 7333]]

format and content, Federal agencies' awards must contain each of the 
following terms and conditions that is applicable in accordance with 
the associated guidance:
    (1) The award term ``Central Contractor Registration and Universal 
Identifier Requirements,'' in accordance with the guidance in 2 CFR 
25.220.
    (2) The award term ``Requirements Related to Recipient Integrity 
and Performance Matters,'' in accordance with the guidance in Sec.  
35.275.
    (3) The award term ``Trafficking in Persons,'' in accordance with 
the guidance in 2 CFR 175.15.


Sec.  35.275  Use of award term.

    (a) An agency must include the award term in Appendix A to this 
part in each grant or cooperative agreement award.
    (b) An agency may use different letters and numbers to designate 
the paragraphs of the award term, if necessary, to conform the system 
of paragraph designations with the one used in other terms and 
conditions in the agency's awards.

Appendix to Part 35--Award Term for Recipient Integrity and Performance 
Matters

    I. Reporting of matters related to recipient integrity and 
performance.
    A. General reporting requirement. If there is any period of time 
during which the total value of your currently active grants, 
cooperative agreements, and procurement contracts from all Federal 
agencies exceeds $10,000,000, then you as the recipient are required 
during that period of time to maintain the currency of information 
about all civil, criminal, or administrative proceedings described in 
paragraph B. of this award term that reached their final disposition 
during the most recent 5-year period. This is a statutory requirement 
under section 872 of Public Law 110-417.
    B. Proceedings about which you must report. During any period of 
time when you are subject to the requirement in paragraph A. of this 
award term, submit information about each proceeding that is connected 
with the award or performance of a grant, cooperative agreement, or 
procurement contract from either the Federal Government or a State, and 
is:
    1. A criminal proceeding that resulted in a conviction;
    2. A civil proceeding that resulted in a finding of fault and 
liability and your paying a monetary fine, penalty, reimbursement, 
restitution, or damages of $5,000 or more;
    3. An administrative proceeding, as defined in paragraph e. of this 
award term, that resulted in a finding of fault and liability and your 
payment of either monetary fine or penalty of $5,000 or more or a 
reimbursement, restitution, or damages in excess of $100,000; or
    4. Any other criminal, civil, or administrative proceeding if:
    a. It is practical for you to judge that it could have led to an 
outcome described in paragraph B.1, 2, or 3 of this award term;
    b. It had a different disposition arrived at by consent or 
compromise with an acknowledgment of fault on your part; and
    c. The requirement in this award term to disclose information about 
the proceeding does not conflict with applicable laws and regulations.
    C. Reporting procedures. Submit the information specified at the 
Federal Awardee Performance and Integrity Information System, or FAPIIS 
(when it is available, the FAPIIS Web site should provide information 
on how and where to enter the information), about each proceeding 
described in paragraph B. of this award term, in accordance with the 
procedures specified at that Internet site. You do not need to submit 
the information a second time under assistance instruments that you 
received if you already submitted the information to FAPIIS because you 
were required to do so under Federal procurement contracts that you 
were awarded.
    D. Reporting frequency. During any period of time when you are 
subject to the requirement in paragraph A. of this award term, you must 
report to FAPIIS no less frequently than semiannually following your 
initial report of any proceedings for the most recent 5-year period, 
either to report new information about any proceeding(s) that you have 
not reported previously or affirm that there is no new information to 
report.
    E. Definitions. For purposes of this award term:
    1. Administrative proceeding means any Federal Government, State, 
or local or foreign government proceeding, other than a criminal or 
civil proceeding, to render a decision concerning an entity's alleged 
violation of or failure to comply with a Federal, State, local, or 
foreign statute or regulation if the proceeding may result in both:
    i. A finding of fault or misconduct; and
    ii. Imposition of a fine or penalty, assessment of damages, or a 
requirement for restitution or repayment.
    2. Total value of currently active grants, cooperative 
agreements, and procurement contracts includes the value of all 
options, even if not yet exercised.

PARTS 36-39--[RESERVED]

    4. Subchapter C to chapter I, consisting of parts 40 through 59, is 
established and reserved to read as follows:

Subchapter C--Award Content and Format--[Reserved]

PARTS 40-59--[RESERVED]

    5. Subchapter D to chapter I, consisting of parts 60 through 79, is 
established and added to read as follows:

Subchapter D--Post-Award Responsibilities

PARTS 60-76--[RESERVED]

PART 77--REMEDIES AND TERMINATION

Sec.
77.5 Purpose of this part.
77.10 Applicability.
77.15 Federal agency implementation.
Subpart A--[Reserved]
Subpart B--Termination
77.200 Purpose of subpart B.
77.220 Reporting.

    Authority: 31 U.S.C. 503; Reorganization Plan No. 2 of 1970; 
E.O. 11541, 35 FR 10737, 3 CFR, 1966-1970, p. 939; Sec. 872, Pub. L. 
110-417, 122 Stat. 4555.


Sec.  77.5  Purpose of this part.

    This part provides Office of Management and Budget (OMB) guidance 
concerning--
    (a) Remedies available to Federal agencies for recipient non-
compliance matters; and
    (b) Termination of an award prior to the end of the project or 
program period.


Sec.  77.10  Applicability.

    (a) Types of entities. This part provides OMB guidance only to 
Federal agencies. Federal agencies' implementation of this part governs 
the rights and responsibilities of other entities affected by the 
guidance, which may include both--
    (1) Organizations other than Federal agencies; and
    (2) Individuals.
    (b) Types of awards. This part applies to Federal agencies' grants 
and cooperative agreements.


Sec.  77.15  Federal agency implementation.

    Each Federal agency with offices that award grants or cooperative 
agreements must issue any needed direction to those offices to require 
conformance with the policies and procedures in this part. It must:
    (a) Issue any implementation other than a regulation within six 
months of

[[Page 7334]]

the issuance of the part or any change to it.
    (b) Submit any regulatory implementation to the OMB for review 
within nine months of the issuance of this part or update to it, prior 
to publication for comment, and issue final regulations within eighteen 
months of the issuance.

Subpart A--[Reserved]

Subpart B--Termination


Sec.  77.200  Purpose of subpart B.

    The purpose of this subpart is to specify policies and procedures 
concerning terminations of awards.


Sec.  77.220  Reporting.

    (a) Reporting requirement. (1) If a Federal agency official 
terminates an award to a recipient prior to the end of the project or 
program period on the basis of the recipient's material failure to 
comply with award terms and conditions, he or she must--
    (i) Report the termination to the Federal Awardee Performance and 
Integrity Information System, or FAPIIS (which will be at a Web site 
for which the Universal Resource Locator, or URL, is not yet 
available); and
    (ii) Provide a copy of the notice of termination and information 
about the termination that is specified at that Internet site.
    (2) If the agency has administrative procedures by which the 
recipient may appeal the agency official's decision to terminate the 
award, the information required under paragraph (a) of this section is 
not to be reported to FAPIIS until the recipient either--
    (i) Has exhausted the appeal procedures available to it and the 
agency has sustained the termination; or
    (ii) Has not, within 30 days of being notified of the termination, 
informed the agency that it intends to appeal the agency official's 
decision to terminate.
    (b) Notification requirement. The Federal agency's notice of 
termination must notify the recipient that--
    (1) The termination will be reported to FAPIIS;
    (2) The information will be kept in FAPIIS for a period of 5 years 
from the date of the termination, as required by section 872 of Public 
Law 110-417, archived for one additional year, and then discarded;
    (3) Each awarding official who considers making an award to the 
entity during that period must consider that information in judging 
whether the entity is qualified to receive the award;
    (4) The entity may go to FAPIIS (when it is available, the FAPIIS 
Web site should provide information on how and where to enter comments) 
and comment on any information FAPIIS contains about the entity, for 
future consideration by Federal awarding officials; and
    (5) An awarding official will consider that entity's comment in 
determining whether the entity is qualified for a future award.
    (c) Correction or updating of information previously submitted. If 
a Federal agency official, after entering information into FAPIIS about 
a termination, subsequently:
    (1) Learns that any of that information is erroneous, he or she 
must correct the information in FAPIIS within 3 business days.
    (2) Obtains an update to that information that could be helpful to 
Federal agency awarding officials who must use FAPIIS, he or she is 
strongly encouraged to amend the information in FAPIIS to incorporate 
the update in a timely way.
    (d) Sources of the requirements. Both reporting information about 
terminations and notifying recipients are statutory requirements for 
grants under section 872 of the Duncan Hunter National Defense 
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417). The 
requirements also apply to cooperative agreements, as a matter of 
Federal Government policy.

PARTS 78-79--[RESERVED]

    6. Subchapter E to chapter I, consisting of parts 80 through 99, is 
established and reserved to read as follows:

Subchapter E--Cost Principles--[Reserved]

PARTS 80-99--[RESERVED]

    7. Subchapter F to chapter I, consisting of parts 100 through 119, 
is established and reserved to read as follows:

Subchapter F--Audit Requirements--[Reserved]

PARTS 100-119--[RESERVED]

    8. Subchapter G to chapter I, consisting of parts 120 through 199, 
is established, and a new subchapter heading is added to read as 
follows:

Subchapter G--National Policy Requirements

PART 180--OMB GUIDELINES TO AGENCIES ON GOVERNMENTWIDE DEBARMENT 
AND SUSPENSION (NONPROCUREMENT)

    9. The authority citation for part 180 continues to read as 
follows:

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 
12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 
235.

    10. Add Sec. Sec.  180.650, 180.655, 180.660, and 180.665 to 
subpart F to read as follows:


Sec.  180.650  May an administrative agreement be the result of a 
settlement?

    Yes, a Federal agency may enter into an administrative agreement 
with you as part of the settlement of a debarment or suspension action.


Sec.  180.655  How will other Federal agencies know about an 
administrative agreement that is the result of a settlement?

    The suspending or debarring official who enters into an 
administrative agreement with you must report information about the 
agreement to the Federal Awardee Performance and Integrity Information 
System (FAPIIS) (the specific information that must be reported is 
specified at the Internet site for that data system). This reporting is 
required by section 872 of the Duncan Hunter National Defense 
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417).


Sec.  180.660  Will I be told how Federal agencies use information 
about me in the Federal Awardee Performance and Integrity Information 
System and allowed to comment on it?

    Yes, the suspending or debarring official who enters into an 
administrative agreement with you must include wording in the agreement 
to inform you that:
    (a) Information about the administrative agreement will be reported 
to FAPIIS;
    (b) The information will be kept in FAPIIS for a period of 5 years 
from the date of the administrative agreement (or for the period of 
time during which the agreement is in effect, if that is more than 5 
years), as required by section 872 of Public Law 110-417, archived for 
one additional year, and then discarded;
    (c) Each Federal agency official who considers awarding a grant, 
cooperative agreement, or procurement contract to you during that 
period must consider the information about you that is in FAPIIS prior 
to making the award, to determine whether you are qualified to receive 
the award based on your business ethics and integrity and prior 
performance of programs under Federal awards;
    (d) You may go to FAPIIS (when it is available, the FAPIIS Web site 
should provide information on how and where to enter comments) and 
comment on any information the data system contains about you; and

[[Page 7335]]

    (e) A Federal agency awarding official will consider your comment 
in determining whether you are qualified for a future award.


Sec.  180.665  Will information about me in the Federal Awardee 
Performance and Integrity Information System be corrected or updated?

    Yes, the suspending or debarring official who entered information 
into FAPIIS about an administrative agreement with you:
    (a) Must correct the information within 3 business days if he or 
she subsequently learns that any of it is erroneous.
    (b) Must correct in FAPIIS, within 3 business days, the ending date 
of the period during which the agreement is in effect, if the agreement 
is amended to extend that period.
    (c) Is strongly encouraged to amend the information in FAPIIS in a 
timely way to incorporate any update that he or she obtains that could 
be helpful to Federal agency officials who must use FAPIIS.
    11. In Sec.  180.715, revise paragraphs (f) and (g), and add a new 
paragraph (h) to read as follows:


Sec.  180.715  What notice does the suspending official give me if I am 
suspended?

* * * * *
    (f) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other agency procedures governing suspension 
decisionmaking;
    (g) Of the Governmentwide effect of your suspension from 
procurement and nonprocurement programs and activities; and
    (h) That the information about the suspension that is reported to 
the EPLS, in accordance with Sec.  180.520, also will be available to 
Federal agency officials responsible for awarding contracts, grants, 
and cooperative agreements through another Governmentwide data system, 
FAPIIS, and that--
    (1) The information will be kept in FAPIIS for a period of 5 years 
from the date of the suspension (or for the period of time during which 
the suspension is in effect, if that is more than 5 years), as required 
by section 872 of Public Law 110-417, archived for one additional year, 
and then discarded;
    (2) Each Federal agency official who considers awarding a grant, 
cooperative agreement, or procurement contract to you during that 
period must consider the information about you that is in FAPIIS prior 
to making the award, to determine whether you are qualified to receive 
the award based on your business ethics and integrity and prior 
performance of programs under Federal awards;
    (3) You may go to FAPIIS (when it is available, the FAPIIS Web site 
should provide information on how and where to enter comments) and 
comment on any information the data system contains about you;
    (4) The purpose of any comment you make in FAPIIS about the 
suspension is for future consideration by Federal awarding officials 
and is separate from the process described in this subpart for 
contesting the suspension; and
    (5) A Federal agency awarding official will consider your comment 
in determining whether you are qualified for a future award.
    12. In Sec.  180.870, revise paragraphs (b)(2)(iii) and (iv), and 
add a new paragraph (b)(2)(v) to read as follows:


Sec.  180.870  When do I know if the debarring official debars me?

* * * * *
    (b) * * *
    (2) * * *
    (iii) States the period of your debarment, including the effective 
dates;
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the executive branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception; and
    (v) Informs you that the information about the debarment that is 
reported to the EPLS, in accordance with Sec.  180.520, also will be 
available to Federal agency officials responsible for awarding 
contracts, grants, and cooperative agreements through another 
Governmentwide data system, FAPIIS, and that--
    (A) The information will be kept in FAPIIS for a period of 5 years 
from the date of the debarment (or for the period of time during which 
the debarment is in effect, if that is more than 5 years), as required 
by section 872 of Public Law 110-417, archived for one additional year, 
and then discarded;
    (B) Each Federal agency official who considers awarding a grant, 
cooperative agreement, or procurement contract to you during that 
period must consider the information about you that is in FAPIIS prior 
to making the award, to determine whether you are qualified to receive 
the award based on your business ethics and integrity and prior 
performance of programs under Federal awards;
    (C) You may go to FAPIIS (when it is available, the FAPIIS Web site 
should provide information on how and where to enter comments) and 
comment on any information the data system contains about you;
    (D) The purpose of any comment you make in FAPIIS about the 
debarment is for future consideration by Federal awarding officials, is 
separate from any request you make under Sec.  180.875 for 
reconsideration of the debarment, and is not to appeal the debarring 
official's decision; and
    (E) A Federal agency awarding official will consider your comment 
in determining whether you are qualified for a future award.

[FR Doc. 2010-2869 Filed 2-17-10; 8:45 am]
BILLING CODE 3110-01-P