7.7 Federal Regulations

Revised 3/29/00

Since the University accepts Federal funding, it is required to follow Federal rules, guidelines and procedures when administering grants, contracts, cooperative agreements and other agreements. Generally, all awards (whether Federal, other governmental or private source) need to be administered consistently to meet the intent of the rules as defined by the Federal government. The Office of Sponsored Projects is available for assistance regarding agency rules and regulations.

7.7.1 Debarment and Suspension

Definitions

Debarment - An action taken by a debarring official in accordance with regulations to exclude a person from participating in transactions covered by these regulations. A person so excluded is debarred.

Suspension - An action taken by a suspending official in accordance with regulations that immediately excludes a person from participating in covered transactions for a temporary period, pending completion of an investigation and such legal, debarment, or Program Fraud Civil Remedies Act proceedings as may ensue. A person so excluded is suspended.

Executive Order 12549 and FAR 521.209-5 created a government wide debarment and suspension system in connection with all transactions with federal agencies. The regulations require that the University (which is the formal applicant for grant and contract funds from the federal government) certify that neither the University nor the University's officers nor researchers (faculty and their professional colleagues):

1. Are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions (defined as being eligible to receive federal funds) by any federal department or agency.
2. Have, within a 3-year period preceding an application for funding, been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain or performing a public transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property.
3. Are presently indicted or otherwise criminally or civilly charged by a government entity (federal, state, or local) with commission of any of the offenses enumerated in (2) above.
4. Have, within a 3-year period preceding this application, had one or more public transactions (federal, state, or local) terminated for cause or default.

The University of Utah treats this requirement as a negative certification, (i.e., that no principals or researchers at the Institution are debarred, suspended, or proposed for debarment or suspension).

Any individual who meets any of the conditions in 1-4 above must immediately notify the Office of Sponsored Projects and are precluded from receiving federally funded grant or contract awards or from being paid with federal funds. On page 2 of the Document Summary Sheet the question is asked of the investigators if they have been debarred or suspended. The University is required to certify this annually.

7.7.2 Lobbying

Section 1352, Title 31, U.S. Code (The Byrd Amendment) prohibits recipients of federal funds (whether grants, contracts, or cooperative agreements) from using those funds to lobby to obtain, extend, or modify a federal award. The regulation is intended to prevent the use of federal funds for lobbying, and to monitor the lobbying expenditures of federal fund recipients. Even though the recipient of federal funds is legally the institution, individuals who are employed by the institution are specifically included in the regulation.

Items of the law which apply to University of Utah faculty, research staff, and administrative staff include the following:

1. You may not use federal funds to influence or attempt to influence any member of the Executive or Legislative branches of government (including any agency employee) for the purpose of securing a grant, contract, or cooperative agreement or an extension, renewal, or modification of any of these. Charging travel expenses to a federal award or drawing salary from a federal award while attempting to influence the award of federal funds for a specific program is defined as lobbying, and is prohibited. You may neither make such expenditures yourselves nor hire someone to do so on your behalf.
   
   The regulation identifies certain persons as "regular employees" of a university and allows them more freedom to discuss research activities with agencies than it allows to non-employee "lobbyists". A regular employee is an individual who has been employed 130 days by the University during the previous 12 months. Faculty and others new to the University should keep in mind this "130 day rule" and be careful about talking to agencies about specific research projects until they have been at the University for 130 days.
   
   It is acceptable to ask, "when will a decision be made on my proposal?" It is not acceptable to describe why your proposal should be funded rather than some other proposal.
    
2. There is an exception for payments for technical and professional services. Please contact the Office of Sponsored Projects (OSP) if you wish to learn if that exception applies to something you plan. If the government asks you to provide technical or professional services, that is not lobbying. You might want to protect yourself by asking, "this would not be considered lobbying, would it?"
    
3. If the proposed award exceeds $100,000, OSP must certify for the University at the time of proposal submission that the University will abide by the regulations in (1) above and we must, if lobbying has occurred using non-federal funds, submit a report of such activities. If the PI or their staff are aware of any facts that make this certification inaccurate, please let OSP know immediately.
    
4. If the University violates the regulations, we are subject to fines of $10,000 to $100,000 for each violation and other remedies the federal government may deem appropriate. The penalties could include loss of the particular award and suspension or debarment as an institution from further federal funding.

It is not the intent of the regulation to prohibit the normal interchange between a faculty member and a program officer at an agency. However, there is no clear line marking where optimistic discussion of research progress ends and discussion of a new or renewal award begins. Federal program officers have received training on this matter and should know when to cut off discussion, but the responsibility is a joint one. If you are unsure, ask.

In addition, the Department of Energy (DOE) has placed a high priority on these statutory requirements and has issued its own brochure entitled "Lobbying...What You Need to Know As A ... Contractor, Cooperative Agreement Participant, or Grantee" which is available from the DOE Procurement Home Page at www.pr.doe.gov.

7.7.3 Office of Management and Budget (OMB) Circulars

Three OMB Circulars exist to provide standards and principles for grants, contracts, cooperative agreements and other agreements. The following explanations come from the circulars themselves.

7.7.3.a OMB Circular A-21

OMB A-21 establishes principles for determining costs applicable to grants, contracts, and other agreements with educational institutions. The principles deal with the subject of cost determination, and make no attempt to identify the circumstances or dictate the extent of agency and institutional participation in the financing of a particular project. The principles are designed to provide that the Federal Government bear its fair share of total costs, determined in accordance with generally accepted accounting principles, except where restricted or prohibited by law. Agencies are not expected to place additional restrictions on individual items of cost. Provision for profit or other increment above cost is outside the scope of this Circular.

7.7.3.b OMB Circular A-110

OMB A-110 sets forth standards for obtaining consistency and uniformity among Federal agencies in the administration of grants to and agreements with institutions of higher education, hospitals, and other non-profit organizations.

7.7.3.c OMB Circular A-133

OMB issues uniform audit requirements in Circular OMB A-133, Audits of States, Local Governments and Non-Profit Organizations. All federal awards received by the University are included within the annual State of Utah A-133, Single Audit Report. The Federal Government reviews the University's internal controls and tests for compliance with federal laws and regulations using statistical sampling. Agencies can request expanded audits that review federal awards in greater detail.

The auditors' report includes the University's response to their findings. The report is then submitted to the University's cognizant agency, the Department of Health and Human Services, or to the contracting agency for resolution.

7.7.4 Federal Acquisition Regulation

The Federal contracting and procurement regulations are combined in a regulation called the Federal Acquisition Regulation (FAR). The FAR establishes the rules for government contracting. All agencies have the opportunity to modify or further explain their agency rules in FAR supplements. We have provided only the FAR web site in this handbook. Contact your contract administrator for explanations of specific agency contract clauses.

The FAR was established to codify uniform policies for acquisition of supplies and services by executive federal agencies. It is issued and maintained jointly, pursuant to the Office of Federal Procurement Policy (OFPP) Reauthorization Act, under the statutory authorities granted to the Secretary of Defense (DOD), Administrator of General Services (GSA) and the Administrator, National Aeronautics and Space Administration (NASA). Statutory authorities to issue and revise the FAR have been delegated to the Procurement Executives in DOD, GSA and NASA.

Each agency establishes it's own rules and guidelines based on the OMB circulars and FAR. Also, specific requests for proposal (RFP's) may have additional guidelines. The Office of Sponsored Projects will assist you in finding, interpreting and advising on governing regulations. Early contact before proposal submission with your OSP Administrator will help with the proposal process as the due dates arrive. As issues arrive during the course of a project, the OSP Administrator will be your contact for issues associated with the rules, policies and guidelines.