American Recovery And Reinvestment Act Of 2009 Terms And ...
American Recovery and Reinvestment Act of 2009
Terms and Conditions
May 2009
Table of Contents
Article Title
1.
NSF National Science Foundation American Recovery and Reinvestment Act of
2009 (ARRA) (Public Law 111-5) Award Term
2.
Reporting and Registration Requirements under Section 1512 of the American
Recovery and Reinvestment Act of 2009, Public Law 111-5
3.
Recovery Act Transactions listed in Schedule of Expenditures of Federal Awards and
Recipient Responsibilities for Informing Sub-recipients
4.
Reporting Protecting State and Local Government and Contractor Whistleblowers
under Section 1553 of the American Recovery and Reinvestment Act of 2009, Public
Law 111-5
5.
ARRA Provision 1604 Regarding Limit on Funds
6.
Referrals to the NSF Office of the Inspector General
Article 1.
National Science Foundation American Recovery and Reinvestment Act of
2009 (ARRA) (Public Law 111-5) Award Term
(a)
This award is funded under the American Recovery and Reinvestment Act of 2009
(ARRA) (Public Law 111-5). Unless otherwise specified, ARRA funding should be considered
one-time funding.
(b)
Recipients must comply with standard NSF award conditions (Research Terms and
Conditions or Grant General Conditions, as applicable) as well as the requirements set forth in
ARRA, including, but not limited to, the reporting requirements specified in the award term
entitled, “Reporting and Registration Requirements under Section 1512 of the American
Recovery and Reinvestment Act of 2009, Public Law 111-5”, as well as the accompanying OMB
guidance (available on the Recovery.gov website.) Failure to submit timely reports may result in
NSF taking administrative action, including disallowance of costs or the suspension or
termination of the award.
(c)
Recipients of ARRA funds are reminded that such funds must be separately tracked and
monitored independently from any non-ARRA funding.
(d)
Recipients of ARRA funds are reminded that ARRA-related terms and conditions are
required to be incorporated into any subrecipient agreements, as appropriate.
(e)
NSF will monitor ARRA funds, and, if, after 12 months, no allowable expenditures have
been incurred, NSF may consider reducing or terminating the award and reallocating the funds.
(End of award term)
Article
2.
Reporting and Registration Requirements under Section 1512 of the
American Recovery and Reinvestment Act of 2009, (Public Law 111-5)
(a)
This award requires the recipient to complete projects or activities which are funded
under the American Recovery and Reinvestment Act of 2009 (“Recovery Act”) and to report on
use of Recovery Act funds provided through this award. Information from these reports will be
made available to the public.
(b)
The reports are due no later than ten calendar days after each calendar quarter in which
the recipient receives the assistance award funded in whole or in part by the Recovery Act.
(c)
Recipients and their first-tier recipients must maintain current registrations in the Central
Contractor Registration (www.ccr.gov) at all times during which they have active federal awards
funded with Recovery Act funds. A Dun and Bradstreet Data Universal Numbering System
(DUNS) Number (www.dnb.com) is one of the requirements for registration in the Central
Contractor Registration.
(d)
The recipient shall report the information described in section 1512(c) using the reporting
instructions and data elements that will be provided online at www.FederalReporting.gov and
ensure that any information that is pre-filled is corrected or updated as needed.
(End of award term)
Article 3.
Recovery Act Transactions listed in Schedule of Expenditures of Federal
Awards and Recipient Responsibilities for Informing Sub-recipients
(a)
To maximize the transparency and accountability of funds authorized under the
American Recovery and Reinvestment Act of 2009 (Public Law 111-5) (Recovery Act) as
required by Congress and in accordance with 2 CFR 215, subpart ___. 21 “Uniform
Administrative Requirements for Grants and Agreements” and OMB A-102 Common Rules
provisions, recipients agree to maintain records that identify adequately the source and
application of Recovery Act funds.
(b)
For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular
A-133, “Audits of States, Local Governments, and Non-Profit Organizations,” recipients agree to
separately identify the expenditures for Federal awards under the Recovery Act on the
Schedule of Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF-SAC)
required by OMB Circular A-133. This shall be accomplished by identifying expenditures for
Federal awards made under Recovery Act separately on the SEFA, and as separate rows under
Item 9 of Part III on the SF-SAC by CFDA number, and inclusion of the prefix “ARRA-” in
ARRA Terms and Conditions (5/09)
Page 2
identifying the name of the Federal program on the SEFA and as the first characters in Item 9d
of Part III on the SF-SAC.
(c)
Recipients agree to separately identify to each subrecipient, and document at the time of
sub-award and at the time of disbursement of funds, the Federal award number, CFDA number,
and amount of Recovery Act funds. When a recipient awards Recovery Act funds for an existing
program, the information furnished to sub-recipients shall distinguish the sub-awards of
incremental Recovery Act funds from regular sub-awards under the existing program.
(d)
Recipients agree to require their subrecipients to include on their SEFA information to
specifically identify Recovery Act funding similar to the requirements for the recipient SEFA
described above. This information is needed to allow the recipient to properly monitor sub-
recipient expenditure of ARRA funds as well as oversight by the Federal awarding agencies,
Offices of Inspector General and the Government Accountability Office
(End of award term)
Article 4.
Protecting State and Local Government and Contractor Whistleblowers
under Section 1553 of the American Recovery and Reinvestment Act of 2009, (Public Law
111-5)
This article contains ARRA’s statutory provisions prohibiting non-Federal employers receiving
covered funds from taking actions against employees in reprisal for whistleblowing. Please
note, that, pursuant to section (e), any employer receiving covered funds must post notice of the
rights and remedies outlined in this award term.
(a)
PROHIBITION OF REPRISALS.—An employee of any non-Federal employer receiving
covered funds may not be discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing , including a disclosure made in the ordinary course of an employee’s duties, to
the Board, an inspector general, the Comptroller General, a member of Congress, a State or
Federal regulatory or law enforcement agency, a person with supervisory authority over the
employee (or such other person working for the employer who has the authority to investigate,
discover, or terminate misconduct), a court or grand jury, the head of a Federal agency, or their
representatives, information that the employee reasonably believes is evidence of—
(1)
gross mismanagement of an agency contract or grant relating to covered funds;
(2)
a gross waste of covered funds;
(3)
a substantial and specific danger to public health or safety related to the implementation
or use of covered funds;
(4)
an abuse of authority related to the implementation or use of covered funds; or
(5)
a violation of law, rule, or regulation related to an agency contract (including the
competition for or negotiation of a contract) or grant, awarded or issued relating to covered
funds.
ARRA Terms and Conditions (5/09)
Page 3
(b) INVESTIGATION OF COMPLAINTS.—
(1)
IN GENERAL.—A person who believes that the person has been subjected to a reprisal
prohibited by subsection (a) may submit a complaint regarding the reprisal to the appropriate
inspector general. Except as provided under paragraph (3), unless the inspector general
determines that the complaint is frivolous, does not relate to covered funds, or another Federal
or State judicial or administrative proceeding has previously been invoked to resolve such
complaint, the inspector general shall investigate the complaint and, upon completion of such
investigation, submit a report of the findings of the investigation to the person, the person’s
employer, the head of the appropriate agency, and the Board.
(2)
TIME LIMITATIONS FOR ACTIONS.—
(A)
IN GENERAL.—Except as provided under subparagraph (B), the inspector general shall,
not later than 180 days after receiving a complaint under paragraph (1)—
(i)
make a determination that the complaint is frivolous, does not relate to covered funds,
or another Federal or State judicial or administrative proceeding has previously been invoked to
resolve such complaint; or (ii) submit a report under paragraph (1).
(B) EXTENSIONS.—
(i)
VOLUNTARY EXTENSION AGREED TO BETWEEN INSPECTOR GENERAL AND
COMPLAINANT.—If the inspector general is unable to complete an investigation under this
section in time to submit a report within the 180-day period specified under subparagraph (A)
and the person submitting the complaint agrees to an extension of time, the inspector general
shall submit a report under paragraph (1) within such additional period of time as shall be
agreed upon between the inspector general and the person submitting the complaint.
(ii)
EXTENSION GRANTED BY INSPECTOR GENERAL.—
If the inspector general is unable to complete an investigation under this section in time to
submit a report within the 180-day period specified under subparagraph (A), the inspector
general may extend the period for not more than 180 days without agreeing with the person
submitting the complaint to such extension, provided that the inspector general provides a
written explanation (subject to the authority to exclude information under paragraph (4)(C)) for
the decision, which shall be provided to both the person submitting the complaint and the non-
Federal employer.
(iii)
SEMI-ANNUAL REPORT ON EXTENSIONS.—The inspector general shall include in
semi-annual reports to Congress a list of those investigations for which the inspector general
received an extension.
(3)
DISCRETION NOT TO INVESTIGATE COMPLAINTS.—
(A)
IN GENERAL.—The inspector general may decide not to conduct or continue an
investigation under this section upon providing to the person submitting the complaint and the
non-Federal employer a written explanation (subject to the authority to exclude information
under paragraph (4)(C)) for such decision.
(B)
ASSUMPTION OF RIGHTS TO CIVIL REMEDY.—Upon receipt of an explanation of a
decision not to conduct or continue an investigation under subparagraph (A), the person
ARRA Terms and Conditions (5/09)
Page 4
submitting a complaint shall immediately assume the right to a civil remedy under subsection
(c)(3) as if the 210-day period specified under such subsection has already passed.
(C)
SEMI-ANNUAL REPORT.—The inspector general shall include in semi-annual reports
to Congress a list of those investigations the inspector general decided not to conduct or
continue under this paragraph.
(4)
ACCESS TO INVESTIGATIVE FILE OF INSPECTOR GENERAL.—
(A)
IN GENERAL.—The person alleging a reprisal under this section shall have access to
the investigation file of the appropriate inspector general in accordance with section 552a of title
5, United States Code (commonly referred to as the ‘‘Privacy Act’’). The investigation of the
inspector general shall be deemed closed for purposes of disclosure under such section when
an employee files an appeal to an agency head or a court of competent jurisdiction.
(B)
CIVIL ACTION.—In the event the person alleging the reprisal brings suit under
subsection (c)(3), the person alleging the reprisal and the non-Federal employer shall have
access to the investigative file of the inspector general in accordance with the Privacy Act.
(C)
EXCEPTION.—The inspector general may exclude from disclosure—
(i) information protected from disclosure by a provision of law; and (ii) any additional information
the inspector general determines disclosure of which would impede a continuing investigation,
provided that such information is disclosed once such disclosure would no longer impede such
investigation, unless the inspector general determines that disclosure of law enforcement
techniques, procedures, or information could reasonably be expected to risk circumvention of
the law or disclose the identity of a confidential source.
(5)
PRIVACY OF INFORMATION.—An inspector general investigating an alleged reprisal
under this section may not respond to any inquiry or disclose any information from or about any
person alleging such reprisal, except in accordance with the provisions of section 552a of title 5,
United States Code, or as required by any other applicable Federal law.
(c)
REMEDY AND ENFORCEMENT AUTHORITY.—
(1)
BURDEN OF PROOF.—
(A)
DISCLOSURE AS CONTRIBUTING FACTOR IN REPRISAL.—
(i)
IN GENERAL.—A person alleging a reprisal under this section shall be deemed to have
affirmatively established the occurrence of the reprisal if the person demonstrates that a
disclosure described in subsection (a) was a contributing factor in the reprisal.
(ii)
USE OF CIRCUMSTANTIAL EVIDENCE.—A disclosure may be demonstrated as a
contributing factor in a reprisal for purposes of this paragraph by circumstantial evidence,
including—
(I)
evidence that the official undertaking the reprisal knew of the disclosure; or
(II)
evidence that the reprisal occurred within a period of time after the disclosure such that a
reasonable person could conclude that the disclosure was a contributing factor in the reprisal.
ARRA Terms and Conditions (5/09)
Page 5
(B)
OPPORTUNITY FOR REBUTTAL.—The head of an agency may not find the occurrence
of a reprisal with respect to a reprisal that is affirmatively established under subparagraph (A) if
the non-Federal employer demonstrates by clear and convincing evidence that the non- Federal
employer would have taken the action constituting the reprisal in the absence of the disclosure.
(2)
AGENCY ACTION.—Not later than 30 days after receiving an inspector general report
under subsection (b), the head of the agency concerned shall determine whether there is
sufficient basis to conclude that the non-Federal employer has subjected the complainant to a
reprisal prohibited by subsection (a) and shall either issue an order denying relief in whole or in
part or shall take 1 or more of the following actions:
(A)
Order the employer to take affirmative action to abate the reprisal.
(B)
Order the employer to reinstate the person to the position that the person held before the
reprisal, together with the compensation (including back pay), compensatory damages,
employment benefits, and other terms and conditions of employment that would apply to the
person in that position if the reprisal had not been taken.
(C)
Order the employer to pay the complainant an amount equal to the aggregate amount of
all costs and expenses (including attorneys’ fees and expert witnesses’ fees) that were
reasonably incurred by the complainant for, or in connection with, bringing the complaint
regarding the reprisal, as determined by the head of the agency or a court of competent
jurisdiction.
(3)
CIVIL ACTION.—If the head of an agency issues an order denying relief in whole or in
part under paragraph (1), has not issued an order within 210 days after the submission of a
complaint under subsection (b), or in the case of an extension of time under subsection
(b)(2)(B)(i), within 30 days after the expiration of the extension of time, or decides under
subsection (b)(3) not to investigate or to discontinue an investigation, and there is no showing
that such delay or decision is due to the bad faith of the complainant, the complainant shall be
deemed to have exhausted all administrative remedies with respect to the complaint, and the
complainant may bring a de novo action at law or equity against the employer to seek
compensatory damages and other relief available under this section in the appropriate district
court of the United States, which shall have jurisdiction over such an action without regard to the
amount in controversy. Such an action shall, at the request of either party to the action, be tried
by the court with a jury.
(4)
JUDICIAL ENFORCEMENT OF ORDER.—Whenever a person fails to comply with an
order issued under paragraph (2), the head of the agency shall file an action for enforcement of
such order in the United States district court for a district in which the reprisal was found to have
occurred. In any action brought under this paragraph, the court may grant appropriate relief,
including injunctive relief, compensatory and exemplary damages, and attorneys’ fees and
costs.
(5)
JUDICIAL REVIEW.—Any person adversely affected or aggrieved by an order issued
under paragraph (2) may obtain review of the order’s conformance with this subsection, and any
regulations issued to carry out this section, in the United States court of appeals for a circuit in
which the reprisal is alleged in the order to have occurred. No petition seeking such review may
be filed more than 60 days after issuance of the order by the head of the agency. Review shall
conform to chapter 7 of title 5, United States Code.
ARRA Terms and Conditions (5/09)
Page 6
(d)
NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING RIGHTS AND
REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.—
(1)
WAIVER OF RIGHTS AND REMEDIES.—Except as provided under paragraph (3), the
rights and remedies provided for in this section may not be waived by any agreement, policy,
form, or condition of employment, including by any predispute arbitration agreement.
(2)
PREDISPUTE ARBITRATION AGREEMENTS.—Except as provided under paragraph
(3), no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a
dispute arising under this section.
(3)
EXCEPTION FOR COLLECTIVE BARGAINING AGREEMENTS.—
Notwithstanding paragraphs (1) and (2), an arbitration provision in a collective bargaining
agreement shall be enforceable as to disputes arising under the collective bargaining
agreement.
(e)
REQUIREMENT TO POST NOTICE OF RIGHTS AND REMEDIES.—
Any employer receiving covered funds shall post notice of the rights and remedies provided
under this section.
(f)
RULES OF CONSTRUCTION.—
(1)
NO IMPLIED AUTHORITY TO RETALIATE FOR NON-PROTECTED
DISCLOSURES.—Nothing in this section may be construed to authorize the discharge of,
demotion of, or discrimination against an employee for a disclosure other than a disclosure
protected by subsection (a) or to modify or derogate from a right or remedy otherwise available
to the employee.
(2)
RELATIONSHIP TO STATE LAWS.—Nothing in this section may be construed to
preempt, preclude, or limit the protections provided for public or private employees under State
whistleblower laws.
(g)
DEFINITIONS.—In this section:
(1)
ABUSE OF AUTHORITY.—The term ‘‘abuse of authority’’ means an arbitrary and
capricious exercise of authority by a contracting official or employee that adversely affects the
rights of any person, or that results in personal gain or advantage to the official or employee or
to preferred other persons.
(2)
COVERED FUNDS.—The term ‘‘covered funds’’ means any contract, grant, or other
payment received by any non-Federal employer if—
(A)
the Federal Government provides any portion of the money or property that is provided,
requested, or demanded; and
(B)
at least some of the funds are appropriated or otherwise made available by this Act.
ARRA Terms and Conditions (5/09)
Page 7
(3) EMPLOYEE.—The term ‘‘employee’’—
(A)
except as provided under subparagraph (B), means an individual performing services on
behalf of an employer; and
(B)
does not include any Federal employee or member of the uniformed services (as that
term is defined in section 101(a)(5) of title 10, United States Code).
(4) NON-FEDERAL
EMPLOYER.—The
term ‘‘non-Federal employer’’—
(A) means
any
employer—
(i)
with respect to covered funds—
(I)
the contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor
and (II) any professional membership organization, certification or other professional body, any
agent or licensee of the Federal government, or any person acting directly or indirectly in the
interest of an employer receiving covered funds; or (ii) with respect to covered funds received by
a State or local government, the State or local government receiving the funds and any
contractor or subcontractor of the State or local government; and (B) does not mean any
department, agency, or other entity of the Federal Government.
(5)
STATE OR LOCAL GOVERNMENT.—The term ‘‘State or local government’’ means—
(A)the government of each of the several States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, American Samoa, the Virgin Islands, the Commonwealth of the Northern
Mariana Islands, or any other territory or possession of the United States; or (B) the government
of any political subdivision of a government listed in subparagraph (A).
(6)
BOARD – The term “Board” means the Recovery Accountability and Transparency
Board, which was established in section 1521 of ARRA.
(End of award term)
Article 5.
ARRA Provision 1604 Regarding Limit on Funds
a.
Section 1604 of the Recovery Act specifies that: “None of the funds appropriated or
otherwise made available in this Act may be used by any State or local government, or any
private entity, for any casino or other gambling establishment, aquarium, zoo, golf course, or
swimming pool.”
b.
In accordance with this ARRA provision, no awards may be made using ARRA funds to
support any of these types of establishments and/or facilities. In addition, in the March 20, 2009
White House Memorandum, Subject: Ensuring Responsible Spending of Recovery Act Funds,
President Obama noted that, to the extent permitted by law, agencies "shall not approve or
otherwise support funding for projects that are similar to those described in section 1604 …"
The Memorandum did not elaborate on the types of projects that might be "similar" to those
listed in section 1604. Thus, if an awardee plans to enter into a subaward arrangement with an
establishment and/or facility that may be similar to those projects listed in section 1604, the
ARRA Terms and Conditions (5/09)
Page 8
awardee must receive written approval from the NSF Office of the General Counsel, prior to the
expenditure of funds.
(End of award term)
Article 6.
Referrals to the NSF Office of the Inspector General
The recipient (including any subrecipients of ARRA funds), shall promptly refer to the NSF
Inspector General any credible evidence that a principal, employee, agent, contractor, sub-
grantee, subcontractor, or other person has submitted a false claim under the False Claims
Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of
interest, bribery, gratuity, or similar misconduct involving those funds.
(End of award term)
ARRA Terms and Conditions (5/09)
Page 9
