Part 5 - Management Services
CHAPTER 19 - GRANTS AND COOPERATIVE
|ACRONYMS USED IN THIS CHAPTER||iii|
|AUTHORITIES AND RESPONSIBILITIES||5-19.2|
|STATUS OF PREVIOUS POLICY ISSUANCES||5-19.3|
|ETHICS AND STANDARDS OF CONDUCT||5-19.4|
|GRANTS AND COOPERATIVE AGREEMENTS -- GENERAL/OVERVIEW||5-19.5|
|CURRENT IHS GRANT PROGRAMS||5-19.6|
|PLANNING AND BUDGETING||5-19.7|
|PRE-AWARD AND AWARD PROCESSES||5-19.8|
|MANAGEMENT CONTROL ISSUES: THE SINGLE AUDIT ACT||5-19.10|
|MANAGEMENT CONTROL ISSUES; MANAGEMENT CONTROL REVIEW METHODOLOGY AND THE FEDERAL MANAGERS' FINANCIAL INTEGRITY ACT||5-19.11|
|GLOSSARY OF KEY TERMS||5-19.12|
|APPENDIX: STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXECUTIVE BRANCH||5-19.14|
|Exhibit 5-19.2A||Program Official Responsibilities in the Administration of PHS Grants|
|Exhibit 5-19.2B||Delegation of Grants Authority to the Alaska Area|
|Exhibit 5-19.3A||Summary of Selected PHS and IHS Policy Issuances|
|Exhibit 5-19.3B||Summary of Reference for Legislative Mandates and Regulatory Guidances|
|Exhibit 5-19.6A||Indian Health Service Current Grants and Cooperative Agreements|
|Exhibit 5-19.7A||Grants Program Announcement Plan|
|Exhibit 5-19.10A||Audit of State and Local Governments|
|Exhibit 5-19.10B||Audits of Institutions of Higher Learning and Other Non-Profit Institutions|
|Exhibit 5-19.11A||Management Accountability and Control|
|ACF||= Administration for Children and Families|
|ARCPR||= Agency for Health Care Policy and Research|
|ATSDR||= Agency for Toxic Substance and Disease Registry|
|CDC||= Centers for Disease Control and Prevention|
|CFR||= Code of Federal Regulations|
|CGMO||= Chief Grants Management Officer|
|CO||= Contracting Officer|
|DAGO||= Division of Acquisition and Grants Operations|
|DCGP||= Division of Contracts and Grant Policy|
|DHHS||= Department of Health and Human Services|
|DMP||= Division of Management Policy|
|FDA||= Food and Drug Administration|
|FR||= Federal Register|
|FY||= Fiscal Year|
|GAO||= General Accounting Office|
|GMB||= Grants Management Branch|
|GMO||= Grants Management Officer|
|GMSRG||= Grants Management System Review Guide|
|GPO||= Government Printing Office|
|HCFA||= Health Care Financing Administration|
|HRSA||= Health Resources and Services Administration|
|IHCIA||= Indian Health Care Improvement Act|
|IHM||= Indian Health Manual|
|IHS||= Indian Health Service|
|MOA||= Memorandums of Agreement|
|NGA||= Notice of Grant Award|
|NIH||= National Institute of Health|
|OAM||= Office of Administration and Management|
|OASH||= Office of the Assistant Secretary for Health|
|OASMB||= Office of the Assistant Secretary for Management|
|OMA||= Office of Administration and Management|
|OMB||= Office of Management and Budget|
|OPEL||= Office of Planning, Evaluation and Legislation|
|ORC||= Objective Review Committee|
|OS||= Office of the Secretary|
|PHS||= Public Health Service|
|PHSA||= Public Health Service Act|
|PMS||= Payment Management System|
|SAMSHA||= Substance Abuse and Mental Health Service Administration|
|TN||= Transmittal Notice|
|USC||= United States Code|
|VA||= Department of Veterans Affairs|
The IHS grant policies and procedures are based on specific Federal statutes and regulations, as well as Department of Health and Human Services (HHS), Public Health Service (PHS), and IHS policy directives. A more detailed discussion of the legal basis for IHS grants is included under Section 5.
The IHS grant programs discussed in this chapter are administered and managed by the Grants Management Branch within the IHS Division of Acquisition and Grants Operations (DAGO), located at the IHS Headquarters facility in Rockville, Maryland.
In some cases, however, the responsibility to administer and manage individual IHS grants may be delegated by the Director, IHS, to the respective IHS Area Office where the grant is carried out. Additionally, the Chief Grants Management Officer has oversight and training responsibilities.
The IHS uses the grant mechanism to make awards when the IHS awarding office determines that no substantial Federal programmatic involvement is anticipated with the recipient during the period of activity performance. The IHS uses the cooperative agreement mechanism in lieu of a grant when the IHS awarding office determines that substantial Federal programmatic involvement with the recipient is anticipated during the period of performance.
It is important to understand that a cooperative agreement is, essentially, a form of grant, in that all of the requirements and procedures that apply to a grant apply also to a cooperative agreement. The main difference between these two award instruments is the degree of Federal programmatic involvement, with the cooperative agreement award involving much more substantive Federal program specific involvement than a grant award. A more extensive discussion of the basic similarities and differences between grants is provided in this chapter under Section 5 -- Grants -- General/Overview.
In fiscal year (FY) 1994, the IHS administered a total of 26 grant programs ranging from urban health project grants to 3 student professional development scholarship programs. The IHS in FY 1994 made over 1,200 grant awards to recipients under these various programs, with about 60 percent of this total number generated by the scholarship program. Section 6 of this chapter contains a complete list of these grant and cooperative agreement programs.
Overall in FY 1994, the IHS outlayed approximately $1.7 billion for all health activity purposes. Of this amount, approximately 55 percent ($900 million to $1 billion) was spent in the form of direct expenditures. Another 40 percent ($650 million to $750 million) was spent through contracts, while about 5 percent (approximately $65 million) was outlayed in the form of grants.
While the proportion of IHS grant and cooperative agreement expenditures is relatively small, the special purpose activities for which these funds are awarded retain a special significance within the overall IHS budget. Both grants and cooperative agreements are used to finance a broad range of both "cutting edge" and special purpose activities that are not as effectively targeted in any other way. Such activities include the development of tribal management systems, demonstration programs for adolescent health centers, and programs for child abuse prevention.
In recent years, the IHS has moved away from the use of MOAs and towards the increased use of negotiated or fixed-price contracts for the provisions of Indian sanitation facilities and services. The Grants Management Branch does not administer any collaborative agreements, inter-agency agreements, intra-agency agreements, or MOAs. These types of agreements are administered by either the Division of Management Policy (DMP), Office of Administration and Management (OAM), or the Office of Environmental Health and Engineering.
Current information, policies, and procedures concerning the use of each of the above referenced agreement instruments is available from the IHS/DMP/OAM at (301) 443-8198. As a result, this IHS chapter does not include any further discussion of these four types of agreements.
In addition, the Chief Grants Management Officer at IHS Headquarters, Rockville, Maryland is responsible for providing oversight, training, technical assistance, and other assistance as may be required by Area Office personnel in administering grants.
Except when provisions of this chapter explicitly indicate otherwise, the maintenance and updating of this IHM chapter are to conform to the policy and procedural requirements established under the IHM, Part 1, Chapter 1 -- "Indian Health Service Manual System."
Any change, update, revision, or cancellation of any policy or procedure formalized by this chapter issuance, or its supplement, must be made using a Transmittal Notice (TN), and follow IHS/OAM/DMP requirements for review, distribution, and control.
Interim supplements to this chapter, including various IHS "memoranda" and circulars that originate at IHS Headquarters in Rockville, Maryland, may be issued and used to establish interim policies between chapter updates.
This chapter is to be revised as needed, but no less than every 2 years, to incorporate such interim policy revisions. All such revisions are to be in accordance with the requirements of the IHM, Part 1, chapter 1.
When appropriate, numbered memoranda and circulars are to be canceled using a supersession line. To cancel a number issuance, an Errata Notice is to be issued using the same format as the item being canceled.
A mailing list has been established by the IHS Directives and Delegations Control Officer to distribute this chapter, and any revisions or supplements, to all Headquarter and Area Office personnel involved in the administration and management of IHS grant and cooperative agreement programs.
This chapter of the IHM consists of a table of contents, 11 substantive sections, a glossary of key terms and an index. A list of the acronyms used in this chapter also is included immediately after the "Table of Contents."
The first four sections of this chapter discuss various introductory concepts, policies, and procedures involved in the management of IHS grant and cooperative agreement programs. Together, these four sections provide an overview for the more detailed, specific discussions in the remaining sections.
These first four sections include: "Section 1 -- Introduction," "Section 2 -- Authorities and Responsibilities," "Section 3 -- Status of Previous Policy Issuances," and "Section 4 -- Ethics and Standards of Conduct."
"Section 5 -- Grants -- General/Overview" provides a comprehensive overview of IHS policy on grants, including Public Law 93-638 grants.
"Section 6 -- Current IHS Grant Programs" provides a brief description of each of the IHS grant and cooperative agreement programs, including funding and recipient information for FY 1994.
"Section 7 -- Planning and Budgeting" focuses on the policy responsibilities associated with planning and budgeting for IHS grant programs from one fiscal year to the next.
"Section 8 -- Pre-Award and Award Processes” provides a policy overview of the management responsibilities associated with the selection and award of grant and cooperative agreement assistance.
"Section 9 -- Post-Award Administration" concerns IHS policies and procedures after a grant award is made until final close-out.
"Section 10 -- Management Control Issues: Single Audit Act" discusses IHS use of this requirement to monitor the use of grant and cooperative agreement funds.
"Section 11 -- Management Control Issues: Management Control Review Methodology and the Federal Managers' Financial Integrity Act" focuses on the policy implications of these three special concerns for the IHS grants and agreements process.
"Section 12 -- Glossary" contains a brief definition for selected key grant and cooperative agreement terms that appear in this chapter.
"Section 13 -- Index" provides a reference to topics discussed in Sections 1 through 11.
"Section 14 -- Appendix: Standards of Ethical Conduct for Employees of the Executive Branch" contains a complete copy of this Executive Branch publication.
The other eight PHS operating components are: the Agency for Health Care Policy and Research (AHCPR); the Agency for Toxic Substances and Disease Registry (ATSDR); the Centers for Disease Control and Prevention (CDC); the Food and Drug Administration (FDA); the Health Resources and Services Administration (HRSA); the National Institutes of Health (NIH); the Substance Abuse and Mental Health Services Administration (SAMHSA), and the Office of the Assistant Secretary for Health (OASH).
On May 4, 1994, the Associate Director, OAM, issued a directive delegating to the Chief Grants Management Officer, IHS, grant authority for programs authorized under the following legislation:
As the authorizing legislation for the IHS grant and cooperative agreement programs is revised and amended by the United States Congress, new legislative authorities for programs may be added and existing authorities may be deleted from this current list.
As a result of the May 4, 1994, directive:
In general, the authorities exercised under the May 4, 1994, directive are to be in accordance with the legislative, regulatory, policy, and procedural provisions, including such provisions under the HHS Grants Administration Manual, and IHS supplements or instructions.
Currently, within the IHS, the Chief Grants Management Officer heads the Grants Management Branch, which functions as a line organization under the Division of Acquisitions and Grants Operations (DAGO).
The Director, IHS, is the "Responsible Official" for all IHS grant programs. In turn, he or she has delegated responsibility for the programmatic operation of each grant program to an appropriate Associate Director or Area Director, who is known as the "Designated Official.“
The Designated Official for each grant program may chose to further delegate parts of this programmatic responsibility. If the Designated Official does elect to make such a delegation, the person to whom the responsibility is assigned is known as the "Cognizant Program Official." However, the Designated Official shall not delegate approval of the Objective Review Committee (ORC) members, or the selection of approved applicants. He/she must retain authority for these functions.
The Cognizant Program Official is the program official with responsibility for: (1) day-to-day programmatic administration; (2) program grant planning; (3) preparation of the program announcement; (4) increasing the number of applications; (5) resource guidance to the ORC; and (6) postaward program monitoring and the evaluation of program effectiveness.
Under this delegation, these authorities are to be exercised for the purpose of the reinvention laboratory at the Alaska Native Medical Center and for the implementation of an Area-wide grants program.
As a reinvention laboratory for the National Performance Review, the IHS Alaska Area is one of only two original, designated reinvention laboratories within the entire HHS.
For the purposes of this delegated grant authority, the Alaska Area Grants Office is designated as a satellite grants office of the IHS Grants Management Branch, DAGO, OAM. Under a separate delegation, the Chief Grants Management Officer is designated as the Grants Technical Manager for oversight of satellite grants offices.
The November 1, 1993, delegation of grant-making authority is limited to specific Federal laws, and contains a number of additional, specific restrictions, all of which were detailed in the November 1, 1993, directive. A copy of this directive is included in this IHM chapter as Manual Exhibit 5-19.2-B.
As of April 17, 1995, the Alaska Area remained the only IHS Area to have received delegated grant-making authority for Headquarters, IHS.
A more detailed list of these legislative mandates and regulatory guidances is provided under Section 3 of this chapter.
This Section also contains a reference list for all current legislative mandates and regulatory guidances that affect the operation of the Grants Management Branch in its management of IHS grants and cooperative agreements. This list is contained under Manual Exhibit 5-19.3-B: "Summary Reference for Legislative Mandates and Regulatory Guidances that Concern IHS Grants and Cooperative Agreements."
More specifically, these legislative mandates include not only a summary reference to the authorizing legislation, but also reference to other overarching statutes -- such as the Administrative Procedures Act, the Anti-Deficiency Act, or the Pro-Children Act of 1994 -- that affect all IHS grant and cooperative agreement programs. Under the regulatory guidance section, references are included to various applicable HHS and other regulations as codified in the CFR; to OMB and U.S. Treasury circulars; to GAO audit guidelines, and to other HHS and PHS documents, such as the Grants Administration Manuals and PHS Grants Policy Statement.
Many of these standards of conduct concern all IHS personnel, while others impose additional, special responsibilities on those individuals who hold positions or authorities involving special or sensitive areas of trust or responsibility. Thus, all IHS personnel share a number of "common" ethical responsibilities in the conduct of their Federal service. These common ethical responsibilities include those to the American people and taxpayers; to the American Indian and Alaska Native children and adults who are the beneficiaries of IHS services; to IHS grantees and others who deal with the IHS; and to other IHS personnel.
For all IHS personnel involved in grant and cooperative agreement activities, special, further ethical responsibilities are imposed. These further ethical responsibilities stem from the necessity to always conduct the business of the American people in a manner that is above reproach.
In addition, the August 1992 publication, Standards of Ethical Conduct for Employees of the Executive Branch, includes Executive Order 12674 (April 12, 1989), "Principles of Ethical Conduct for Employees of the Executive Branch." This 1992 publication was originally published in the Federal Register for August 7, 1992 (pages 35006-35067), and also is currently codified in the CFR under 5 CFR Part 2635, as well as remaining available in booklet form through the U.S. Government Printing Office.
Because of the importance of proper ethical conduct on the part of all IHS personnel involved in grant-making, a summary of the major subdivisions of 5 CFR 2635 is provided under Subsection C, which follows. In addition, a copy of this complete regulation is also included in 5-19.14 Appendix.
These regulations are all designed to ensure that the business of the Federal Government is conducted effectively, objectively, and without improper influence or the appearance of improper influence. This principle holds true for relationships involving the Government and awardees under IHS and other Federal grant and cooperative agreement programs.
Acting upon this recommendation, President Bush signed Executive Order 12674 on April 12, 1989. This Executive Order described 14 basic principles of ethical conduct for Executive Branch personnel and directed the Office of Government Ethics to establish a single clear and comprehensive set of Executive Branch standards for ethical conduct.
On August 7, 1989, those standards were published in the Federal Register. When they became effective in early 1990, for the first time all employees of the Executive Branch came under a single set of standards governing ethical conduct.
GENERAL PROVISIONS - SUBPART A
Subpart A establishes the framework for the rest of the regulation. It includes definitions, provides authority for supplementation of the regulation when necessary by individual agencies, and encourages employees to seek advice from agency ethics officials. It also:
GIFTS FROM OUTSIDE SOURCES - SUBPART B
Subpart B prohibits employees from soliciting or accepting gifts from prohibited sources, or gifts given because of their official position. The term "prohibited source" includes: (1) anyone seeking business with, or official action by, an employee's agency, and (2) anyone substantially affected by the performance of an employee's official duties. For example, a company bidding for an agency contract or a person seeking an agency grant would be a prohibited source of gifts to employees of that agency.
The term "gift" is defined to include nearly anything of monetary value. However, it does not include items that clearly are not gifts, such as publicly available discounts and commercial loans, and it does not include certain inconsequential items, such as coffee, donuts, greeting cards, and certificates.
There are several exceptions to the prohibitions against gifts from outside sources. For example, with some limitations, employees may accept:
The subpart also contains guidance on returning or paying for gifts that cannot be accepted.
GIFTS BETWEEN EMPLOYEES - SUBPART C
Subpart C prohibits employees from:
The following are among the exceptions to these prohibitions:
CONFLICTING FINANCIAL INTERESTS - SUBPART D
Subpart D contains two provisions designed to deal with financial interests that conflict with employees' official duties.
The first provision entitled "Disqualifying financial interests" prohibits an employee from participating in an official government capacity in a matter in which he or she has a financial interest, or in which his/her spouse, minor child, employer, or any one of several other specified persons has a financial interest. For example, an agency purchasing agent could not place an agency order for computer software with a company owned by his wife. The provision includes alternatives to nonparticipation, which may involve selling or giving up the conflicting interest or obtaining a statutory waiver that will permit the employee to continue to perform specific officials duties.
The second provision, entitled "Prohibited financial interests," contains authority by which agencies may prohibit employees from acquiring or retaining certain financial interests.
Employees required by Subchapter D to sell financial interests may be eligible to defer the tax consequences of that divestiture.
IMPARTIALITY IN PERFORMING OFFICIAL DUTIES - SUBPART E
There may be circumstances other than those covered by Subpart D in which employees should not perform official duties in order to avoid an appearance of loss of impartiality. Subpart E contains two disqualification provisions addressing those appearance issues.
The first provision, entitled "Personal and business relationships," states that employees should obtain specific authorization before participating in certain government matters where their impartiality is likely to be questioned. The matters specifically covered by this standard include those:
There are procedures by which employees may be authorized to participate in such matters when it serves the employing agency's interests. The process set forth in Subpart E should be used to address any matter in which an employee's impartiality is likely to be questioned.
The second provision, entitled "Extraordinary payments from former employers," restricts employees' participation in certain matters involving former employers. If a former employer gave an employee an "extraordinary payment" in excess of $10,000 prior to entering Federal service, it bars the employee from participating for 2 years in matters in which that former employer is, or represents, a party. For example, a $25,000 payment voted on an ad hoc basis by a board of directors would be an "extraordinary payment." A routine severance payment made under an established employee benefit plan would not apply to this provision.
SEEKING OTHER EMPLOYMENT - SUBPART F
Subpart F prohibits employees from participating in their official capacities in particular matters that have a direct and predictable effect on the financial interests of persons with whom they are "seeking employment" or with whom they have an arrangement concerning future employment.
The term "seeking employment" encompasses actual employment negotiations as well as more preliminary efforts to obtain employment, such as sending an unsolicited resume. It does not include:
An employee generally continues to be "seeking employment" until he or the prospective employer rejects the possibility of employment and all discussions end. However, an employee is no longer "seeking employment" with the recipient of an unsolicited resume after 2 months have passed with no response.
MISUSE OF POSITION - SUBPART G
Subpart G contains four provisions designed to ensure that employees do not misuse their official positions. These include:
OUTSIDE ACTIVITIES - SUBPART H
Subpart H contains provisions governing employees' involvement in outside activities, including outside employment. These provisions are in addition to the provisions set forth in other subparts of the regulation. The provisions in Subpart H include:
Subpart H reserves the section which, in the proposed rule, had set forth standards for participation in the activities of professional associations.
Compared to actual conflicts of interest, apparent conflicts of interest are much more difficult to define or to prove. To the general public, however, apparent conflicts are often more visible and, therefore, more difficult to disprove to the layman. Since there is no clear definition, each employee should think about their actions, and how their actions might be viewed by the public, and should guard against doing anything that might appear to give one person, group, or business an advantage over another. Employees should also be especially careful if it might appear that the beneficiary is a friend or relative.
The definition of what is a "gratuity" has been subject to different interpretations over the years. There is no question that asking for or accepting money or presents would be considered gratuities. However, food, drink, and transportation present another set of problems. Currently, food, drink, and transportation are considered gratuities except in the following situations:
Section 1342 prohibits recipients of Federal contracts, grants, loans, or cooperative agreements from using appropriated funds for lobbying the executive or legislative branches of Government in connection with specific contract, grant, loan, or cooperative agreements. It requires persons requesting or receiving a Federal contract, grant, or cooperative agreement over $100,000, or a loan over $150,000, to disclose such lobbying with other than appropriated funds.
The authorization for the various grant and cooperative agreement programs administered by the IHS is provided, in each instance, by specific authorizing legislation for the program. Examples of such authorizing legislation include the Public Health Service Act, the Indian Health Care Improvement Act, and the Indian Self-Determination and Education Assistance Act -- each of which contain specific sections that authorized IHS grant activity. PHS and IHS regulations, published in the Federal Register and codified in the Code of Federal Regulations, provide further guidance for IHS grant-making activities.
Public Law 95-224, the Federal Grant and Cooperative Agreement Act of 1977 (as codified under Chapter 63 of Title 31 -- "Money and Finance," in the United States Code [U.S.C.]) provides a description of the difference between a "contract", a "grant" and a "cooperative agreement," as well as guidance for the appropriate use of each of these award instruments.
More specifically, sections 6303, 6304, and 6305 under Title 31 of the U.S.C. provide the following direction concerning the respective use of procurement contracts, grant agreements, and cooperative agreements:
Sec. 6303. Using procurement contracts.
An executive agency shall use a procurement contract as the legal instrument reflecting a relationship between the United States Government, and a State, a local government, or other recipient when-
Sec. 6304. Using grant agreements.
An executive agency shall use a grant agreement as the legal instrument reflecting a relationship between the United States Government and a State, a local government, or other recipient when-
Sec. 6305. Using cooperative agreements.
An executive agency shall use a cooperative agreement as the legal instrument reflecting a relationship between the United States Government and a State, a local government, or other recipient when-
In general, most Federal agencies, including the IHS, use the grant award instrument much more frequently than the cooperative agreement award vehicle. This occurs because the "cooperative agreement" is essentially an alternative assistance instrument to be used in place of a grant whenever substantial Federal program involvement with the recipient is anticipated during the performance period. Thus, the key difference between grants and cooperative agreements, as Federal award instruments, is the degree of the Federal programmatic involvement, rather than the type of required administrative requirements.
In order to enact any Federal grant program or to award any single grant, the Agency must have specific legislative authority. Grant program legislation usually delineates (1) the grant as the award mechanism, (2) the purpose of the program, and (3) the types of organizations eligible to apply for the grant program. A grant shall not be awarded unless specific legislative authority exists.
Currently, within the IHS, the following four Acts provide the specific authority for the Agency to make grants:
In accordance with IHS policy, most current IHS administered grant programs are discretionary and competitive project grant programs. The IHS administers no statutorily authorized formula grant program, although several of the programs authorized under the Indian Health Care Improvement Act, Title V -- "Health Services for Urban Indians" are treated as formula grants for the purposes of the allocation of funds. For the purposes of this chapter, however, these Title V programs remain classified as project grants.
Finally, the IHS also administers a number of noncompetitive grant programs that are the result of specific legislation, congressional line-item authorizations, or specific appropriations language. Usually, such non-competitive, single source funding targets assistance to one or several specified institutions or organizations.
For each program listed in Exhibit 5-19.6-A, the common name of the program is followed by (1) a brief reference to the authorizing legislation, and (2) an estimate of the total dollars awarded in FY 1994.
An example of such an unfunded program currently authorized under the Indian Health Care Improvement Act (IHCIA), P.L. 94-437, as amended through P.L. 102-573, the Indian Health Amendments of 1992, is the American Indians into Psychology Program (IHCIA, Section 217).
In between the grant planning and the grant closeout processes, the notification and receipt of appropriated funds, the selection of grant awardees and the making of awards, and the post award administration processes will occur.
This process further should include an analysis of any changes in funding requirements due to changes in the terms of any program's authorizing legislation, and in the funding necessary to continue ongoing projects. This analysis must also take into account any new, continuing, or deleted congressionally earmarked funds, and any line-item program specific funding levels that must be adhered to.
During this planning process, special attention should also be given to the justification for the need for continued funding in the next fiscal year for each grant program. In an era of tight Federal budgets and competing service needs, this planning process also should consider relative priorities for funding among various grant programs.
This grant announcement plan remains a current requirement for all IHS offices that anticipate announcing a competitive grants program for the forthcoming fiscal year. Typically, this plan is to be completed and forwarded to the Grants Management Branch approximately six months prior to the start of the next fiscal year. For example, in the case of FY 1996, the deadline for the completed "Grant Program Announcement Plan" was April 20, 1995.
A copy of the FY 1996 cover memorandum for the "Grants Program Announcement Plan," and the current instructions and format for the plan, are included at the end of this section as Manual Exhibit 5-19.7-A.
Additional discussion of the grant selection and award process and of post award administration, are provided in the next two sections of this IHM chapter.
Currently, two PHS documents are the principal sources for such pre-award and award policies and procedures: (1) the PHS Grants Administration Manual which, became effective July 1, 1986, with periodic partial supplements and updates since then, and (2) the PHS Grants Policy Statement (Revised, April 1, 1994).
The purpose of this Section is to provide a brief overview of the pre-award and award guidance provided by these two PHS documents, including references for further followup where appropriate. This Section also describes certain grant and cooperative agreement policies that are unique to the IHS.
In brief, the IHS pre-award process begins when the IHS publishes a program announcement on the availability of financial assistance to carry out specified health-related activities. This pre-award process continues with the preparation of the application by the Indian tribe, organization, individual, or other entity that is requesting grant or cooperative agreement funding, including any external or internal IHS reviews. Finally, the pre-award process culminates with the IHS awarding office decision concerning whether or not to make a grant or cooperative agreement award.
The IHS documents that are required to be published in the Federal Register currently include:
The IHS office responsible for awarding a grant or cooperative agreement is also responsible for making program information available to the interested public, and for promoting the dissemination of program information. The IHS Grants Management Officer is responsible for providing technical assistance on business management matters and grants policy issues. Project Officers are responsible for providing assistance on the programmatic aspects of a particular program or project.
Applicants and grantees under IHS grant and cooperative agreement programs must comply with a number of public policy requirements and use the appropriate application form as prescribed by the HHS, the PHS, and/or the IHS. In general, these policies are intended to ensure fairness, equity, fiscal, and other protections in activities funded through IHS assistance.
The application form used to apply for an IHS grant is Form PHS-5161, which is prescribed and approved by Office of Management and Budget.
Competing applications, that is, those subject to independent objective review requirements generally will be considered "on time" if they are received on or before the established deadline date, or are sent on or before the deadline date specified in the program announcement or in the application kit materials. Applicants should request a legibly dated U.S. Postal Service postmark, or obtain a dated receipt from a commercial carrier or the U.S. Postal Service. Private metered postmarks shall not be acceptable as proof of timely mailing. Late competing applications not accepted for processing may either be returned to the applicant or held for the next regularly scheduled review cycle.
Applications for noncompeting continuation awards will be considered on time if they are sent by the established deadline date. The late submission or receipt of a noncompeting continuation application may result in a delay in the issuance of the continuation award, during which time no additional Federal funds will be awarded.
An applicant may withdraw an application from consideration at any time. A competing application that is withdrawn by the applicant before such application enters the formal review process will be returned to the applicant. Other applications may or may not be returned to the applicants, at the discretion of the IHS awarding office.
This review includes a thorough and consistent examination of each application by persons knowledgeable in the field for which support is requested, who have no direct relationship with the organization or individual submitting the application, and who do not have any personal or vested interest in the award of a grant to that organization or individual. Peer review, a system using reviewers who are the professional equals of the principal investigator or program director who is to be responsible for directing or conducting the proposed project, is a form of objective review.
Peer review is legislatively mandated in some programs and in other programs is administratively required.
The objective review is generally conducted by a committee or group of field readers or by a combination of those methods. Reviewers may be Federal employees or non-Federal personnel. Peer review committee membership is usually entirely non-Federal. The use of non-Federal reviewers is governed by the requirements of the Federal Advisory Committee Act and its implementing HHS regulations, 45 CFR Part 11.
Objective review of grant applications is intended to be advisory and not to replace the authority of the IHS awarding official to decide whether a grant shall be awarded. A review committee makes a recommendation for approval or disapproval, but the decision-making official has the sole authority to fund an application. Such decisions are based not only on the recommendations resulting from the IHS review process, but also on stated programmatic priorities, the availability of funds, Executive Order 12372 decisions, recommendations where applicable, and other information available to the awarding official.
The decision whether to have a review and, if so, how comprehensive it should be, is made by the responsible Grants Management Officer. That official may conduct the review or have others conduct it. The review is made against the standards for recipient financial systems in 45 CFR Part 74, Subpart H, and 45 CFR Part 92, Subpart C.
PHS and IHS policy is to make awards to organizations which are competently managed, are responsible, and are committed to achieving the objectives of the grants they receive. However, experience has shown that a few organizations either have performed inadequately with respect to the management and use of IHS grant funds, or have serious potential deficiencies in business management systems. If an award is proposed to such an organization, in order to ensure proper stewardship of Federal funds and to assist the recipient in taking corrective action as quickly as possible, the organization should be designated as an "Exceptional Organization".
An exceptional organization is defined as one that shows evidence of poor business management practices. Once an organization has been identified as exceptional, either during the review of an application, or any time during the life of the project, the IHS awarding office shall provide close monitoring and assistance as deemed appropriate by the Grants Management Officer. The Grants Management Officer may impose special grant conditions on the Notice of Grant Award as provided by 45 CFR Part 74.7, 45 CFR Part 74.72(e), and 45 CFR Part 92.12.
Within 30 days after the decision not to fund an application, a written notice must be sent to each applicant whose application has been disapproved or has been recommended for approval but is not expected to be funded during the current funding cycle. The notice must provide the reasons the application will not be funded or the name of an official to contact for more information. Notices shall also be sent to applicants whose applications have been deferred, i.e., where a final recommendation has not been made in order to obtain additional information or otherwise augment the review of an application.
An application that has been recommended for approval but is not funded in a particular review cycle may be considered for funding in subsequent review cycles. Such applications must then compete for funding with comparable applications recommended for funding in that review cycle. An applicant whose application is recommended for approval, but is not funded, will be advised whether, and for what period of time, the application will be held for reconsideration and possible funding. In no case may such an application be held for reconsideration for more than twelve months in an approved, but unfunded status, following the date of the funding decision. This policy is applicable to all IHS discretionary grant programs, both construction and non-construction.
The NGA includes, among other things, the dates of the budget period or other specified funding period, the approved budget, and the amount of Federal funds authorized for obligation by the grantee during the period indicated. If applicable, the NGA will also indicate the dates of the approved project period and the amount of IHS support recommended for each subsequent budget period of the approved project. Award notices also contain special terms and conditions binding upon the award, and refer to all general terms applicable to the award. Any action such as the award of a supplement or the noncompeting extension of a budget period resulting in a change in the amount of funds awarded, a change in the duration of support, or a change in the terms and conditions of the award, will be reflected in a revised NGA.
The award document will also identify the approved grant application or its equivalent; indicate the grantee's specific matching requirement, if any; include the name of the individual (project or program director or principal investigator) who by the terms of the application will have responsibility for the conduct of the project or program; and, as appropriate, specify the option to be exercised by the grantee concerning the disposition of general program income earned from the grant-supported activities.
The terms of the award, either contained in or referenced by the award document, will be binding on both the grantee and the IHS awarding office until such time as they are modified by a revised award notice signed by the GMO.
It should be understood that any revisions in the terms of an award are permitted only when consistent with applicable statutes and regulations, and are deemed to be in the best interest of the Government.
If the awarding office has determined that a prospective grantee is financially unstable, has a history of poor performance, or has a management system which does not meet the agency's standards, the awarding office may impose special conditions more restrictive than those prescribed by 45 CFR Part 74 (see 45 CFR Parts 74.7 and 74.72(e)) and 45 CFR Part 92 (see 45 CFR Part 92.12) and/or arrange for appropriate technical assistance to be provided to the grantee.
When a special condition requires the grantee to take specific action by a certain date, the condition will include a statement of the resulting IHS awarding office action to be taken in case of noncompliance. The IHS office responsible for imposing the special conditions shall follow up on grantee performance to determine compliance and to lift, or recommend removal of, the special condition when it has been satisfactorily complied with. Removal of special conditions will be communicated in writing to the grantee by the official authorized to sign the award notice.
Under all PHS and IHS grant awards, a grantee indicates acceptance of the terms of an award by requesting funds from the grant payment system. If the grantee cannot accept the terms, it should notify the GMO. If resolution cannot be reached, the grant will become void. The grantee does not have appeal rights with respect to the terms appearing on the NGA, or with respect to a denial by the IHS awarding office of a request to change the terms of the award, since the actions and decisions resulting in the issuance of the award document are normally considered to be preaward determinations.
When incremental funding is used, projects may be programmatically approved for support in their entirety or in part, but funded in annual increments called budget periods.
The length of an initial project period, or any subsequent extension, is determined by the IHS awarding office on the basis of statutory and regulatory requirements, the length of time requested by the applicant to complete the project, the frequency of competitive review desirable for proper management of the project, and limitations on the length of the project period recommended by the independent objective review group(s). However, except where specifically required by legislation or regulation, or approved by OASH, an initial project period or competitive continuation may not exceed 5 years, exclusive of noncompeting extensions. The total project period consists of the initial project period and any extensions (competitive or non-competitive segments).
The initial grant award provides funds for the conduct of the project during the first budget period. A budget period is normally 12 months. Shorter or longer budget periods may be established for compelling programmatic or administrative reasons, such as to arrange more advantageous anniversary dates to allow for project periods not evenly dividable into 12-month increments; to take into account an unavoidable extended absence of a principal investigator; to merge two or more grants into a consolidated grant, or to accommodate a change in the grantee's fiscal year. Budget periods of more than 12 months from a single appropriation must be approved by the agency director.
An NGA that documents the approval of a project period that extends beyond the budget period for which funds are provided, including recommended levels of future support, expresses the IHS intention of providing continued financial support to the project. However, the recommended levels of future support within a project period are not guarantees by IHS that either the project will be funded or funded at those levels, and creates no legal obligation to provide such future support. Instead, these amounts represent projections of future funding levels based on the information available at the time of the initial award.
The actual amount of subsequent awards will be determined by-
Funding of a noncompeting continuation award within a previously approved project period may be withheld for justifiable reasons.
Grant funds, including amounts awarded for the current budget period and estimated or actual unobligated Federal funds carried over from prior budget periods, are authorized for grantee use only in the current budget period, and only up to the amount specified by the IHS awarding office in an approved budget on an NGA. Carry-over funds are not automatically available to the grantee. The IHS awarding office exercises sole discretion as to the use of unobligated grant funds.
Recipients of project grant awards will receive payments through the HHS Payment Management System (PMS). This system is administered by the Federal Assistance Financing Branch, Office of the Assistant Secretary for Health. Operational guidance for recipients is contained in the "HHS Manual for Recipients Financed Under the PMS."
At present, the HHS uses several approved methods of grant payment including payment by Treasury Check and payment via a telecommunications direct deposit into a grantee's bank account (Smart Link).
Payment of individual scholarships is done by Treasury Check for stipends directly to the students or for tuitions directly to the educational institution. The Grants Management Branch (GMB) is responsible for initiating these payments.
At present, one IHS and two PHS publications are the principal sources for current IHS post-award policies and procedures. These two PHS sources are: (1) the PHS Grants Policy Statement (April 1,1994, Revision), and (2) the PHS Grants Administration Manual, which became effective July 1, 1986, with periodic partial supplements and updates since then.
In addition, the Grants Management Branch of IHS publishes and updates annually the training document, "Indian Health Service -- Post Award Grants Administration Training for Indian Health Service Grantees."
Within the PHS Grants Policy Statement, Section 8 -- "Postaward Administration" in particular should be consulted for policy guidance on a broad range of post-award issues, including project changes and accountability, reporting, records retention, appeals, audits, and grant closeout.
Postaward activities involve a particularly close coordination between program and grants management staff. Although activities listed below are presented in terms of Program Official responsibilities, there needs to be a team approach with appropriate collaboration and exchange of information between Program Officials and the Grants Management Specialists. With regard to postward responsibilities, the Program Official:
In summary, the Program Official evaluates grantee performance to, ensure that satisfactory program progress is achieved by the grantee. Program Officials are required to review and formally approve interim and final grantee program progress reports and final products, to certify that the grant was successfully completed at the end of its project period, and to establish that the closeout process can proceed.
The responsibilities of grantees under an IHS grant or cooperative agreement award are, in general, the same as those required of other PHS awardees. In particular, IHS grantees should consult the following subsections under Section 8 of the PHS Grants Policy Statement for further guidance: Changes in Expenditure/Activities; Changes in Project; Prior Approval Authorities; Requests for Approvals; Property Management and Accountability; Management Systems and Procedures; Fraud, Abuse, and Waste; Standards of Conduct for Employees; Monitoring; Reporting; Record Retention and Access; Suspension, Termination, and Withholding; Audit; and Closeout.
Grantees are responsible for knowing and carrying out the terms and conditions of any individual grant or cooperative agreement award. Any questions concerning such awards should be directed to the appropriate Grants Management Specialist or Program Official.
Effective as of the date of this IHM chapter, these PHS grant appeal procedures are supplemented by the following IHS specific grant appeal procedures:
Grants in-lieu-of contracts awarded under Section 102, P.L. 93-638, as amended, shall be processed under the appeal procedures for P.L. 93-638 "non-procurement" contracts. Such grants do not come within the appeal authority of 42 CFR Part 50, Subpart D, or 45 CFR Part 16.
The Associate Director, Office of Planning, Evaluation, and Legislation (OPEL), IHS, shall appoint a permanent Chairperson of the IHS Grant Appeals Committee. A minimum of two additional IHS employees shall be appointed by the Associate Director, OPEL, to serve on the Appeals Committee on a case-by-case basis. These additional members may be appointed from IHS Headquarters offices and/or from Area offices other than those involved in the adverse determination. The Appeals Committee shall consist of at least three members, to include the Chairperson.
All adverse determinations set forth in paragraph 3 above shall be made in writing by the awarding office to the grantee organization. The notification of such adverse determination shall be in sufficient detail to enable the grantee to respond and shall contain the following closing statement:
This determination may be appealed in accordance with the provisions of 42 CFR Part 50, Subpart D, Section 50.404, by requesting a review in writing. The request for review must be postmarked no later than 30 days after the postmark date of this letter and addressed to the Associate Director, Office of Planning, Evaluation, and Legislation, Indian Health Service, 12300 Twinbrook Parkway, Suite 450, Rockville, MD. 20852. Your request for review must clearly identify the question(s) in dispute, contain a full statement of your position with respect to such question(s), and the pertinent facts and reasons in support of such position. You must attach a copy of this determination to your submission. An extension of time may be approved by the Associate Director for good cause.
This information shall be forwarded to the Chairperson, IHS Grant Appeals committee, who will establish the official appeals record.
"This decision may be appealed in accordance with the provisions of 45 CFR Part 16 by requesting a review in writing. The request for review must be postmarked no later than 30 days after the postmark date of this letter and addressed to the Executive Secretary, Departmental Appeals Board, Department of Health and Human Services, 330 C Street, S.W., Washington, D.C. 20201. The request for review must clearly identify the question(s) in dispute and contain a full statement of your position with respect to such question(s) and the pertinent facts and reasons in support of such position."
The IHS audit requirements or grantees are determined by the provisions of the Single Audit Act, and are further described in OMB Circular No. A-128, which applies to Indian tribes, and OMB Circular No. A-133, which applies to educational and non-profit organizations.
In brief, the Single Audit Act requires State or local governments and Indian tribes that receive $100,000 or more per year in "Federal financial assistance" to have an annual audit. Such assistance includes "grants, contracts, cooperative agreements, loans, loan guarantees, property, interest subsidies, insurance or direct appropriations" provided by a Federal agency, such as the IHS.
Under the Single Audit Act, the term "State" is defined to include... "any Indian tribe."
In turn, the term "Indian tribe" is defined to mean... any Indian tribe, band, nations, or other organized group, or community, including any Alaskan Native village or regional or village corporations (as defined in, or established under, the Alaskan Native Claims Settlement Act) that is recognized by the United States as eligible for the special programs and services provided by the United States to Indians because of their status as Indians."
OMB Circular No. A-133 is included in its entirety as Manual Exhibit 5-19.10-B at the end of this Section.
These two management control issues involve: (1) the management control review methodology for IHS grants, and (2) the implications for grants management of the Federal Managers' Financial Integrity Act.
The Grants Management Systems Review Guide (GMSRG), December, 1991, is the primary tool used within HHS for the purposes of conducting certification of grants management systems, including the system used within the IHS. In addition, the GMSRG is also a resource for Agency review teams in fulfilling their oversight responsibilities for grant award and administration activities, including internal control reviews, and the identification of potential areas of material weakness, as required by the Federal Managers' Financial Integrity Act.
The GMSRG contains information on several types of grants management systems reviews, and provides a structured, and consistent, approach for each type.
Unless expressly modified in this Section of this chapter, the various procedures and guidances provided in the GMSRG are to be adhered to in reviewing, assessing, and evaluating IHS grants management procedures.
On September 8, 1982, President Ronald Reagan signed into law the Federal Managers' Financial Integrity Act of 1982, as Public Law 97-255. This legislation provided a key, new management tool to the IHS, and other Executive agencies, to aid in the task of self-regulation.
In brief, Public Law 97-255 amended the Accounting and Auditing Act of 1950 (32 U.S.C. 66a) by adding new requirements that strengthened the internal accounting and administrative controls of each Executive agency and is described in OMB Circular No. A-123 Revised, 6/21/95. In accordance with standards established by the Comptroller General of the United States, each such agency is to provide reasonable assurances--
As the management unit with designated responsibility for IHS administration of grant and cooperative agreement program funds, the Grants Management Branch has a particularly important function in ensuring IHS compliance with these and other specific provisions of the Federal Manager's Financial Integrity Act.
The text of OMB Circular No. A-123 is included as Manual Exhibit 5-19.11-A.
This chapter section provides a glossary of terms that are commonly used in administering and managing IHS grants and cooperative agreements programs. In each case, the term is followed by a definition that is derived from a Public Health Service (PHS) or other Federal Government source. In the most cases, this source is either the PHS Grants Policy Statement, or the PHS General Administration Manual, or the "definitions" section of P.L. 93-638, as amended through P.L. 103-437.
A wide variety of excessive services or program violations and improper practices not involving prosecutable fraud.
A process specified in legislation whereby grant recipients may challenge certain adverse actions specified in regulations taken by the PHS awarding component.
|APPLICATION WITH A TIME CONSTRAINT||
A grant application that cannot be held for the next applicable review cycle of competitive applications if the objectives of the project are to be achieved. Examples of this type of application are those for disaster relief and for "now-or-never" research projects.
The financial expenditure plan, including any revisions approved by the awarding party for the grant-supported project or activity. The approved budget consists of Federal (grant) funds and non-Federal participation, or Federal funds only, and will be specified on the Notice of Grant Award and on any subsequent revised or amended award notice. Any expenditures charged to an approved budget that consists of both Federal and non-Federal shares are deemed to be borne by the grantee in the same proportions as the percentage of Federal/non-Federal participation in the overall budget.
The provision of funds or direct assistance in lieu of funds based on an approved application and budget to provide general financial assistance to an organization or an individual to carry out an activity or program.
A mandatory grant that a Federal agency is required by statute to award, generally to States, if the recipient meets the compliance requirements of the statute and regulations. The IHS does not have block grant authority.
The financial expenditure plan approved by IHS to carry out the purposes of the grant-supported project. The budget is composed of both the Federal share and any non-Federal share identified on the Notice of Grant Award.
The interval of time (usually 12 months) into which the project period is divided for budgetary and funding purposes.
|COGNIZANT PROGRAM OFFICE||
A bureau, institute, center, division, or office level organization reporting directly to either a PHS agency head, Regional Health Administrator, or OASH staff office.
|COGNIZANT PROGRAM OFFICIAL||
The individual who is head of the cognizant program office or the individual to whom that official has assigned the responsibility to perform specific functions.
|COMPETING CONTINUATION APPLICATION||
A request for financial or direct assistance to extend, for one or more additional budget periods, a project period that would otherwise expire. Continuation applications compete for funds with other continuation applications, with supplemental applications, and with new applications.
The project period recommended for support (1 to 5 years) or each extension of the prior project resulting from the award of a competing continuation grant.
An organizational unit within an agency that has the delegated authority to make awards.
Support of a symposium, seminar, workshop, or any other organized and formal meeting lasting one or more days where people assemble to exchange information and views or explore or clarify a defined subject, problem or area of knowledge, whether or not a published report results from such meeting. IHS does not have authority for these.
Programs for the planning, design, construction, repair, improvement, and expansion of buildings or facilities, including, but not limited to, housing, law enforcement and detention facilities, sanitation and water systems, roads, schools, administration and health facilities, irrigation and agricultural work, and water conservation, flood control, or port facilities. (P.L. 93-638, Section 4, as amended).
Funds set aside for events that cannot be foretold with certainty as to time, intensity, or actual occurrences. Contingency funds do not include pension funds, self-insurance funds, and normal accruals. These are not allowable in an approved budget.
|CONTRACTING UNDER A GRANT||
A process whereby a grantee enters into a written agreement (the contract) with a third party (1) for the acquisition of property or services, or (2) for the conduct of prescribed activities or functions under the grant. In all instances, these agreements involve the acquisition of services or products that are designed to assist the grantee in carrying on the approved grant project.
The transfer of title to real property, by sale or otherwise, to another party.
A financial assistance mechanism to be used in lieu of a grant when substantial Federal programmatic involvement with the recipient during performance is anticipated by the PHS awarding office (see "Grant").
The standards on which the scientific or technical merit of a grant application is judged.
The individual assigned the responsibility to perform certain functions. This individual may be in the program chain of command. In the IHS the designated "program" official is normally the Associate Director or Area Director.
A financial assistance mechanism whereby goods or services are provided to recipients in lieu of cash. Direct assistance generally involves the assignment of Federal personnel or the provision of equipment or supplies, such as vaccines.
Costs that can be specifically identified with a particular project or program.
An institution eligible to receive grants from PHS agencies, as defined in the legislation or program announcement.
A written review that lists the environmental effects that are expected to occur as a result of the proposed action; defines the extent of those effects and describes the environment(s) that will be affected, both current and future. It also describes explicit requirements or safeguards that are introduced as part of the proposed action to avoid or reduce the extent of the effects.
For grantees subject to 45 CFR Part 74, an article of tangible nonexpendable personal property including exempt property, charged directly to an award and having a useful life of more than 1 year and an acquisition cost of $5,000 or more per unit. For grantees subject to 45 CFR Part 92, an article of tangible, nonexpendable, personal property having a useful life of more than 1 year and an acquisition cost of $5,000 or more per unit.
The date signifying the end of the current budget period, as indicated on the Notice of Grant Award, after which the grantee does not have authority to obligate grant funds.
|FEDERAL FINANCIAL ASSISTANCE||
Transfer of money, property, or other direct assistance (see above) to an eligible recipient to support or stimulate a public purpose authorized by statute.
A Cabinet-level department or independent agency of the Executive Branch of the Federal Government or any component organization of such a department or agency.
|FEDERALLY RECOGNIZED INDIAN TRIBAL GOVERNMENT||
See 45 CFR Part 92.3.
A process involving both a cost analysis and a determination of the adequacy of a grantee's accounting system.
The obtaining of something of value, unlawfully, through misrepresentation.
|FREEDOM OF INFORMATION OFFICER||
An officer of the Department who has been delegated authority under the provisions of the HHS Freedom of Information regulation.
Regular compensation paid to employees during periods of authorized absences from the job, such as vacation leave, sick leave and military leave; and employer contributions or expenses for social security, employee insurance, workmen's compensation insurance, pension plan costs, and the like.
An individual associated with an institution who is pursuing a course of study or training that constitutes a full-time workload in accordance with the institution's policies.
An application for a new competing continuation (renewal), noncompeting continuation, or competing supplemental grant for which a Notice of Grant Award has been issued.
A financial assistance mechanism whereby money and/or direct assistance is provided to carry out approved activities. A grant (as opposed to a cooperative agreement) is to be used whenever the PHS awarding office anticipates no substantial programmatic involvement with the recipient during performance of the financially assisted activities. Grants can be classified on the basis of type of activity(ies) supported (research, training, service, etc.); degree of discretion allowed the awarding office (mandatory or discretionary); and/or method of determining amounts of award (negotiated basis or formula).
|GRANT APPROVED PROJECT/ACTIVITIES||
Those activities specified or described in a grant application, plan, or other document that are approved by the PHS awarding office for funding or changes subsequently approved by the PHS awarding office Grants Management Officer. For purposes of this definition, it does not matter whether Federal funding constitutes all or only a portion of the financial support necessary to carry out such activities.
The individual or organizational entity to which a grant (or cooperative agreement) is awarded and which is responsible and accountable both for the use of the funds provided and for the performance of the grant-supported project or activities. The grantee is the entire legal entity even if only a particular component is designated in the award document. See 45 CFR Part 74.3 and 45 CFR Part 92.3.
|GRANTS MANAGEMENT BRANCH (GMB)||
The IHS Headquarters office responsible for the award of all Headquarters grants and cooperative agreements and for the oversight of satellite Area Offices delegated grants signatory authority.
|GRANTS MANAGEMENT OFFICER (GMO)||
The PHS official responsible for the business management aspects of particular grants or cooperative agreements. The GMO serves as the counterpart to the business officer of the grantee organization. In this capacity, the GMO is responsible for all business management matters associated with the review, negotiation, award, and administration of grants, and interprets grants administration policies and provision. He or she works closely with the program or project officer who is responsible for the scientific, technical, and programmatic aspects of the grant (see "Program/Project Officer").
|GRANTS POLICY STATEMENT||
The principal document that provides guidance on policies, procedures, and regulations applicable to the administration of PHS grants and cooperative agreements.
For the purposes of IHS grant and cooperative agreement programs, a person who is a member of an "Indian tribe," as this term is defined in this Section.
Any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
Costs that are incurred by a grantee organization for common or joint objectives and which therefore cannot be identified specifically with a particular project or program. Information on indirect costs may be obtained from the applicable Federal cost principles.
An individual who has the authority to sign for the institution, making a commitment on behalf of the institution.
Administrative requirements that place limitations on (1) the eligibility of entities or type of entities that may apply, (2) the geographic location of the project, or (3) the time available for review and award.
The use of Federal (appropriated) or non-Federal funds to influence the Executive or Legislative Branches of the Federal Government in connection with a specific grant or cooperative agreement.
See 45 CFR Part 92.3.
|MAINTENANCE OF EFFORT||
A requirement contained in certain legislation, regulations, or administrative policies that a recipient must maintain a specified level of financial effort in the health area for which Federal funds will be provided in order to receive Federal grant funds. This requirement is usually given in terms of a previous base year dollar amounts.
Those services that are an integral part of the administration of a grant project and which contribute materially to the operation of the project, including but not limited to accounting services, personnel services, procurement services, and ADP services.
The value of third-party in-kind contributions and the portion of the costs of a federally assisted project or program not borne by the Federal Government. Where matching is not required by law or regulation, matching may be administratively required by the IHS awarding office. Costs used to satisfy matching requirements are subject to the same policies governing allowability as other costs under the approved budget.
All eligible entities may apply for funds under a particular financial assistance program.
Minority group members include Black Americans, Hispanic Americans, Native Americans (American Indians, Eskimos, Aleuts, or Native Hawaiians), Asian Pacific Americans, and members of such other groups as may be designated, from time to time, by the Small Business Administration.
|MISCONDUCT IN SCIENCE||
Misconduct in science means fabrication, falsification, plagiarism, or other practices that seriously deviate from those that are commonly accepted within the scientific community for proposing, conducting, or reporting research. It does not include honest error or honest differences in interpretations or judgments of data.
A prefabricated portable unit designed to be moved to a site and assembled on a foundation to serve as a dwelling or a place of business.
A process whereby the programmatic and business management performance aspects of a grant are reviewed by assessing information gathered from various reports, audits, site visits, and other sources.
The funding of a grant project for a period of 12 months and one day, or longer, from a single annual appropriation. The term does not include a no-cost extension of an existing grant.
An action whereby the name of an organization is legally changed without otherwise affecting the rights and obligations of the parties involved.
The document that formalizes the establishment of indirect cost rates and provides information on the proper application of the rates.
A request for financial or direct assistance for a project or program not currently receiving PHS financial assistance.
|NONCOMPETING CONTINUATION APPLICATION||
A request for financial or direct assistance for a second or subsequent budget period within a previously approved project period (see "Project Period").
PHS approval of additional time for a budget period, normally not to exceed 12 months for any budget period, including the final budget period of a previously approved project period. The extension may be made with or without additional funds. Notice of extension must be made through the issuance of a revised Notice of Grant Award.
A public or private institution of higher education, a public or private hospital, an Indian tribe or an Indian tribal organization that is not a federally recognized Indian tribal government, a quasi-public or private nonprofit organization, or a commercial organization. The term does not apply to an individual, Federal agency, foreign or internal organization (such as an agency United Nations), Government-owned contractor-operated facility, or research center providing continued support for mission-oriented large-scale programs that are Government owned or controlled or are developed as federally funded. Research and Development Centers under Office of Federal Procurement Policy Letter 84-1.
|NOTICE OF GRANT AWARD||
The legally binding document that notifies the recipient and others that a grant or cooperative agreement has been made, contains or references all terms of the award, and documents the obligation of Federal funds in the HHS accounting system.
The thorough and consistent examination of applications by persons knowledgeable in the field of endeavor for which support is requested to provide advice to awarding officials based on an evaluation of the scientific or technical merit or other relevant aspects of the proposal.
An individual attending an educational institution who is pursuing a course of study or training that constitutes a part-time workload in accordance with the institution's policies. Within the policies of the IHS Scholarship Programs, part-time cannot be less than 6 semester hours or the equivalent for a quarterly system.
An applicant still in the review process for which there has not been a final funding decision.
A number computed to indicate the relative position or ranking of an application based on all of the priority scores assigned by a review committee over a period of 1 year.
Tangible personal property having a useful life of more than 2 years and an acquisition cost of $5,000 or more per unit.
|PHS AWARDING OFFICE||
The office responsible for the award, administration, and monitoring of grant-supported activities. The designated Grants Management Officer and program officer are representatives of this office. The use of this term throughout this document as a point of contact and the focal point for requesting necessary prior approvals refers specifically to the Grants Management Officer.
|PHS PRIOR APPROVAL||
In a number of policy areas, written prior approval from the PHS awarding office is required before certain activities may be undertaken, funds expended, or the cost of actions may exceed a certain dollar level. These requirements are specified in this policy statement or appear in documents included or referenced herein.
Where prior approval is needed, it must be obtained by the grantee institution in writing from the Grants Management Officer. All references in this document to PHS prior approval, therefore, mean written approval from the Grants Management Officer.
For subgrants and contracts awarded by grantees, the prior approval authority is usually the grantee. However, the grantee may not approve any action or cost that is inconsistent with the purpose or terms of the Federal grant. If an action by a subgrantee or contractor will result in a change in the overall grant project or budget requiring granting agency approval, the grantee shall obtain that approval from PHS before giving its approval to the subgrantee or contractor. In a few instances, PHS must grant prior approval for activities or actions taken by subgrantees and contractors under grants.
A summary statement of the intent of the applicant to request Federal funds. It is used by PHS to determine the applicant's eligibility, determine how well the proposed project can compete with other similar applications, and eliminate any proposals that have little or no chance of Federal funding before applicants incur significant expenditures for preparing an application. Preapplications are required for all construction projects for which the need for Federal funding exceeds $1,000,000. Preapplications may also be required for other grant programs at the option of the PHS awarding office.
The process by which those applications that are recommended for approval are assigned a value of merit by each individual committee member or field reader.
A coherent assembly of plans, project activities, and supporting resources contained within an administrative framework, the purpose of which is to implement an organization's mission or some specific program-related aspect of that mission. For purposes of this policy statement, a PHS financial assistance program refers to a program that carries out its mission by supporting activities in other organizations through the grant or cooperative agreement mechanism.
|PROGRAM DIRECTOR/PROJECT DIRECTOR/PRINCIPAL INVESTIGATOR||
An individual designated by the recipient to direct the project or program being supported by the grant. He or she is responsible and accountable to recipient organization officials for the proper conduct of the project or program. The organization is, in turn, legally responsible and accountable to PHS for the performance and financial aspects of the grant-supported activity.
All gross income earned by a grantee or subgrantee from activities, part or all of the cost of which is either borne as a direct cost by a grant or counted as a direct cost toward meeting a matching requirement of the grant.
The standards which describe the programmatic preferential ranking of activities. Program priorities are used to select which of the grant applications recommended for approval under objective review procedures are funded.
The PHS awarding office official who is responsible for the technical, scientific, or programmatic aspects of a grant. Such individuals deal with grantee organization staff to ensure programmatic progress and work closely with the PHS Grants Management Officer and grants management staff in the overall administration of grants.
Activities of a substantive nature and described in the approved grant application.
The total time for which support of a project has been programmatically approved. A project period may consist of one or more budget periods. The total project period comprises the original project period and any extensions.
|PROJECT PERIOD EXTENSION||
(1) Competing Extension - the extension of a project period, which would otherwise terminate, to provide support for one or more additional budget periods, and (2) Noncompeting Extension - the extension of a project period necessitated by an extension of a budget period.
|PUBLIC HEALTH SERVICE||
The organization primarily responsible for supporting the health-related activities of HHS. As used in this chapter, references to PHS mean the PHS awarding offices (See "PHS Awarding Office").
|RANKING OF APPLICATIONS||
The process by which the individual scores are aggregated to form a composite score that serves as the basis for an ordering of applications recommended for approval.
See 45 CFR Parts 74.132 and 92.3.
The grantee or, where subgrants are authorized by law, the subgrantee that receives PHS financial assistance in the form of grants or cooperative agreements.
|RECOMMENDED FOR APPROVAL||
An application reviewed by a review committee or group of field readers and/or a National Advisory Council that has been judged to meet specified scientific, technical, or other criteria.
|RECOMMENDED FOR APPROVAL BUT UNFUNDED||
An application reviewed and recommended for approval that does not meet the program priorities for funding in that particular review cycle but which may be considered for funding in a subsequent review cycle.
|RECOMMENDED FOR DEFERRAL||
An application reviewed by a review committee or group of field readers and/or a National Advisory Council upon which a final recommendation has been postponed to obtain additional information or otherwise augment the review of that application.
|RECOMMENDED FOR DISAPPROVAL||
An application reviewed by a review committee or group of field readers and/or a National Advisory Council that has been judged deficient in its scientific, technical, managerial, or other relevant aspects. Such a recommendation by a National Advisory Council, where a council review is legislatively mandated, is conclusive and cannot be overturned by the administering program.
The IHS or PHS agency head or OASH staff office head for centralized programs, and the Regional Health Administrator for decentralized grant programs.
|REQUEST FOR APPLICATION (PROGRAM ANNOUNCEMENT)||
A statement providing information including the eligibility, deadline date of the announcement, program title, Catalog of Federal Domestic Assistance number, program objectives for which applications are being invited, type of assistance, and other information as described in PHS GAM Section 115.2, "Information for Potential Applicants."
A contract -- or a grant or cooperative agreement utilized under section 9 of P.L. 93-638, as amended through P.L. 103-437 -- entered into under title I of P.L. 93-638 between a tribal organization and the Secretary of HHS or the Secretary of the Interior for the planning, conduct, and administration of programs or services that are otherwise provided to Indian tribes and their members pursuant to Federal law.
The eligibility for application and award is administratively limited to only one entity. Award requires approval by PHS agency head.
Consistent with PHS requirements, the term "smoke-free workplace" means office space (including private offices and other work space), laboratory space, patient clinical areas, conference or meeting rooms, corridors, stairways, lobbies, restrooms, cafeterias, and other public space.
Additional terms and conditions that are judged necessary to attain the objectives for which the grant is being made, facilitate postaward administration of the grant, conserve grant funds, or otherwise protect the interests of the Federal Government.
A single award only partially funded from one annual appropriation with the intent to supplement the award from a new fiscal year appropriation to provide the remainder of the funding originally intended. This is not allowable.
Terms and conditions that are required on each notice of grant award.
|STANDING REVIEW COMMITTEE||
A committee established under the Federal Advisory Committee Act on a continuing basis with a duration expected to exceed 1 year.
The governments of any of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or any agency or instrumentality of a State exclusive of local governments. For purposes of PHS grants, federally recognized Indian tribes are treated the same way as State governments. State institutions of higher education and State hospitals are considered nongovernmental organizations for purposes of 45 CFR Parts 74 and 92 and this policy statement (see 45 CFR Parts 74.3 and 92.3).
A payment made to an individual under a scholarship or training grant in accordance with preestablished levels to provide for the individual's living expenses during the period of training.
An award of financial assistance in the form of money or property made under a grant by a grantee to an eligible recipient called a subgrantee (see 45 CFR Parts 74.3 and 92.3).
A process whereby a grantee transfers money, property, services, or anything of value to an organization or individual, whether by grant, contract, or other mechanism, for the purpose of providing general financial assistance to that third party. Such a process is in contrast with that of the contracting process which involves the acquisition of services or products from a third party.
|SUBSTANTIAL PROGRAMMATIC INVOLVEMENT||
After award of a cooperative agreement, awarding office staff involvement to provide technical assistance and guidance to, or to coordinate or participate in, certain programmatic activities of award recipients to a degree beyond their normal stewardship responsibilities in the administration of grants.
|SUBSTANTIVE PROGRAMMATIC WORK||
The primary project activities for which grant support is provided and/or a significant portion of the activities to be conducted under the grant.
A process whereby the rights and obligations to an IHS or PHS grant or grants are acquired incidental to the transfer of all of the assets of the grantee or all of that part of the assets involved in the performance of the grant. Such transfer may result from legislative or other legal action such as a merger, divestiture, or other corporate change.
A request for an increase in support during a current budget period for the expansion of the project's scope or research protocol, or to meet increased administrative costs unforeseen at the time of the new noncompeting continuation or competing continuation application.
Temporary withdrawal of the grantee's authority to obligate grant funds pending corrective action by the grantee as specified by IHS or a decision by PHS to terminate the grant (see 45 CFR Parts 74.110 and 92.3).
The process where grants management and program officials provide advice and counsel to grantees regarding business, management, and administrative aspects of the grants to assist them in achieving program objectives.
Permanent withdrawal of a grantee's authority to obligate previously awarded grant funds before that authority would otherwise expire, including the voluntary relinquishment of that authority by the grantee (see 45 CFR Parts 74.110 and 92.3).
|TERMS OF AWARD||
All legal requirements imposed on a grant by the Federal Government, whether by statute, regulation, or terms in the grant award document. Each Notice of Grant Award may include both standard and special provisions that are considered necessary to attain the objectives of the grant, facilitate postaward administration of the grant, conserve grant funds, or otherwise protect the Federal Government's interests.
Any organization legally distinct from the grantee (whether or not affiliated with the grantee) or any individual not employed by the grantee other than a consultant or volunteer acting directly under the grantee's direction and control.
|THIRD-PARTY IN-KIND CONTRIBUTIONS||
See 45 CFR Parts 74.51 and 92.3.
|TOTAL PROJECT COSTS||
The total allowable costs incurred by the grantee institution to carry out an approved grant-supported project or activity, including costs charged to the PHS grant and costs contributed by the grantee as listed in the grant application or Notice of Grant Award and included in the Financial Status Report.
A portable vehicle built on a chassis which is designed to be hauled from one site to another by a separate means of propulsion (such as a car or a truck) and which serves, wherever parked, as a dwelling or a place of business.
The costs in a training grant that are associated with the support of a trainee and include stipends, tuition, and fees.
|TRAINING GRANT (INSTITUTIONAL AWARD)||
A grant or award made to an organization to support costs of training individuals in the particular programmatic area of concern.
|TRAINING GRANT - TRAINING RELATED (NON-TRAINEE) EXPENSES||
The costs in a training grant that relate to support services provided by the grantee to individual trainees, such as research supplies, equipment, and faculty salaries.
The recognized governing body of any Indian tribe or any legally established organization of Indians that is controlled, sanctioned, or chartered by such governing body, or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities. In any case where a grant is made to an organization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting or making of such grant.
An application that has been recommended for approval but is not ranked high enough to receive funding, or was disapproved for funding.
An applicant whose application is disapproved or is recommended for approval but unfunded during the normal grant review and funding cycle (the review associated with each meeting of a National Advisory Council or the review of applications received pursuant to a single program announcement).
Contributions that the grantee makes toward the cost of the project in excess of what is required.
The incurring of unnecessary costs as a result of deficient practices, systems, or controls.
|WITHHOLDING OF SUPPORT||
A decision by the awarding office not to make a noncompeting continuation award within a previously approved project period.
8-1 to 8-2
8-2 to 8-4
2-3 to 2-4
6-1 to 6-2
8-4 to 8-8
8-10 to 8-13
7-1 to 7-2
1-1 to 1-2;
4-1 to 4-11
1-2 to 1-3
|Federal Managers' Financial Integrity Act||
11-1 to 11-2
8-6 to 8-7
9-3 to 9-9
|Grant Program Officials||
9-1 to 9-3
|Grants and Cooperative Agreements (Terms)||
|Grants Legislative Authorities||
|Grants Management Delegation||
2-1 to 2-2
|Grants Program Delegation||
2-2 to 2-3
Legislative Mandates/Regulatory Guidances
8-5 to 8-6
|Management Control Review||
11-1 to 11-2
7-1 to 7-2
9-1 to 9-9
|Pre-Award Process||8-1 to 8-4|
|Single Audit Act||
10-1 to 10-2
|Tribal Self-Governance Compacts||
PART 2635 - STANDARDS OF ETHICAL, CONDUCT FOR EMPLOYEES OF THE EXECUTIVE BRANCH (Eff. 2-3-93)
Authority: 5 U.S.C. 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
Source: 57 FR 35042, Aug. 7, 1992, unless otherwise noted.
Effective Date Note: At 57 FR 35042, Aug. 7, 1992, part 2635 was revised, effective February 3, 1993. For the convenience of the reader, part 2635 remaining in effect until February 3, 1993 follows the text of this new part.
Subpart A - General Provisions
§ 2635.101 Basic obligation of public service.
§ 2635.102 Definitions.
The definitions listed below are used throughout this part. Additional definitions appear in the subparts or sections of subparts to which they apply. For purposes of this part:
§ 2635.103 Applicability to members of the uniformed services.
The provisions of this part, except this section, are not applicable to enlisted members of the uniformed services. Each agency with jurisdiction over enlisted members of the uniformed services shall issue regulations defining the ethical conduct obligations of enlisted members under its jurisdiction. Those regulations shall be consistent with Executive Order 12674, April 12, 1989, as modified, and may prescribe the full range of statutory and regulatory sanctions, including those available under the Uniform Code of Military Justice, for failure to comply with such regulations.
§ 2635.104 Applicability to employees on detail.
§ 2635.105 Supplemental agency regulations.
In addition to the regulations set forth in this part, an employee shall comply with any supplemental agency regulations issued by his employing agency under this section.
§ 2635.106 Disciplinary and corrective action.
§ 2635.107 Ethics advice.
Subpart B-Gifts From Outside Sources
§ 2635.201 Overview.
This subpart contains standards that prohibit an employee from soliciting or accepting any gift from a prohibited source or given because of the employee's official position unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart.
§ 2635.202 General standards.
Example 1: A purchasing agent for a Veterans Administration hospital routinely deals with representatives of pharmaceutical manufacturers who provide information about new company products. Because of his crowded calendar, the purchasing agent has offered to meet with manufacturer representatives during his lunch hours Tuesdays through Thursdays and the representatives routinely arrive at the employee's office bringing a sandwich and a soft drink for the employee. Even though the market value of each of the lunches is less than $6 and the aggregate value from any one manufacturer does not exceed the $50 aggregate limitation in § 2635.204(a) on de minimis gifts of $20 or less, the practice of accepting even these modest gifts on a recurring basis is improper.
[57 FR 35041, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992]
§ 2635.203 Definitions
For purposes of this subpart, the following definitions shall apply:
Note: Some airlines encourage those purchasing tickets to join programs that award free flights and other benefits to frequent fliers. Any such benefit earned on the basis of Government-financed travel belongs to the agency rather than to the employee and may be accepted only insofar as provided under 41 CFR 301-1.6(b).
Example 1: An employee who has been given an acrylic paperweight embedded with the corporate logo of a prohibited source may determine its market value based on her observation that a comparable acrylic paperweight, not embedded with a logo, generally sells for about $20.
Example 2: A prohibited source has offered an employee a ticket to a charitable event consisting of a cocktail reception to be followed by an evening of chamber music. Even though the food, refreshments, and entertainment provided at the event may be worth only $20, the market value of the ticket is its $250 face value.
Note: Gifts between employees are subject to the limitations set forth in subpart C of this part.
Example 1: Where free season tickets are offered by an opera guild to all members of the Cabinet, the gift is offered because of their official positions.
Example 1: An employee who must decline a gift of a personal computer pursuant to this subpart may not suggest that the gift be given instead to one of five charitable organizations whose names are provided by the employee.
§ 2635.204 Exceptions.
The prohibitions set forth in § 2635.202(a) do not apply to a gift accepted under the circumstances described in paragraphs (a) through (1) of this section and a gift accepted in accordance with one of those paragraphs will not be deemed to violate the principles set forth in § 2635.101(b). Even though acceptance of a gift may be permitted by one of the exceptions contained in paragraphs (a) through (1) of this section, it is never inappropriate and frequently prudent for an employee to decline a gift offered by a prohibited source or because of his official position.
Example 1: An employee of the Securities and Exchange Commission and his spouse have been invited by a representative of a regulated entity to a Broadway play, tickets to which have a face value of $30 each. The aggregate market value of the gifts offered on this single occasion is $60, $40 more than the $20 amount that may be accepted for a single event or presentation. The employee may not accept the gift of the evening of entertainment. He and his spouse may attend the play only if he pays the full $60 value of the two tickets.
Example 2: An employee of the Defense Mapping Agency has been invited by an association of cartographers to speak about his agency's role in the evolution of missile technology. At the conclusion of his speech, the association presents the employee a framed map with a market value of $18 and a book about the history of cartography with a market value of $15. The employee may accept the map or the book, but not both, since the aggregate value of these two tangible items exceeds $20.
Example 3: On four occasions during the calendar year, an employee of the Defense Logistics Agency was given gifts worth $10 each by four employees of a corporation that is a DLA contractor. For purposes of applying the yearly $50 limitation on gifts of $20 or less from any one person, the four gifts must be aggregated because a person is defined at § 2635.102(k) to mean not only the corporate entity, but its officers and employees as well. However, for purposes of applying the $50 aggregate limitation, the employee would not have to include the value of a birthday present received from his cousin, who is employed by the same corporation, if he can accept the birthday present under the exception at § 2635.204(b) for gifts based on a personal relationship.
Example 4: Under the authority of 31 U.S.C. 1353 for agencies to accept payments from non-Federal sources in connection with attendance at certain meetings or similar functions, the Environmental Protection Agency has accepted an association's gift of travel expenses and conference fees for an employee of its Office of Radiation Programs to attend an international conference on "The Chernobyl Experience." While at the conference, the employee may accept a gift of $20 or less from the association or from another person attending the conference even though it was not approved in advance by the EPA. Although 31 U.S.C. 1353 is the only authority under which an agency may accept gifts from certain non-Federal sources in connection with its employees’ attendance at such functions, a gift of $20 or less accepted under § 2635.204(a) is a gift to the employee rather than to his employing agency.
Example 5: A Navy contracting officer is participating in a procurement for environmental cleanup services at a Navy installation that has recently been closed. She is presently involved in negotiations with three competing contractors, one of whom has offered her a fancy ballpoint pen embossed with its corporate logo. Even though the pen has a market value of $18 and could be accepted under the $20 de minimis exception at § 2635.204(a), the contracting officer cannot accept the competing contractor's gift. Under the procurement integrity provisions at 41 U.S.C. 423, she is a "procurement official" for that contract and, except as specifically permitted by the regulations implementing that statute, she is prohibited prior to award from accepting a gift from a competing contractor for that contract. The Federal Acquisition Regulation at 48 CFR 3.104 contains an exception for gifts with a market value of $10 or less.
Example 1: An employee of the Federal Deposit Insurance Corporation has been dating a secretary employed by a member bank. For Secretary's Week, the bank has given each secretary 2 tickets to an off-Broadway musical review and has urged each to invite a family member or friend to share the evening of entertainment. Under the circumstances, the FDIC employee may accept his girlfriend's invitation to the theater. Even though the tickets were initially purchased by the member bank, they were given without reservation to the secretary to use as she wished, and her invitation to the employee was motivated by their personal friendship.
Example 2: Three partners in a law firm that handles corporate mergers have invited an employee of the Federal Trade Commission to join them in a golf tournament at a private club at the firm's expense. The entry fee is $500 per foursome. The employee cannot accept the gift of one-quarter of the entry fee even though he and the three partners have developed an amicable relationship as a result of the firm's dealings with the FTC. As evidenced in part by the fact that the fees are to be paid by the firm, it is not a personal friendship but a business relationship that is the motivation behind the partners' gift.
Example 1: An employee of the Consumer Product Safety Commission may accept a discount of $50 on a microwave oven offered by the manufacturer to all members of the CPSC employees' association. Even though the CPSC is currently conducting studies on the safety of microwave ovens, the $50 discount is a standard offer that the manufacturer has made broadly available through a number of similar organizations to large segments of the public.
Example 2: An Assistant Secretary may not accept a local country club's offer of membership to all members of Department Secretariats which includes a waiver of its $5,000 membership initiation fee. Even though the country club is not a prohibited source, the offer discriminates in favor of higher ranking officials.
Example 3: The administrative officer for a district office of the Immigration and Naturalization Service has signed an INS order to purchase 50 boxes of photocopy paper from a supplier whose literature advertises that it will give a free briefcase to anyone who purchases 50 or more boxes. Because the paper was purchased with INS funds, the administrative officer cannot keep the briefcase which, if claimed and received, is Government property.
Example 1: Based on a determination by an agency ethics official that the prize meets the criteria set forth in § 2635.204 (d)(1), an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.
Example 2: Prestigious University wishes to give an honorary degree to the Secretary of Labor. The Secretary may accept the honorary degree only if an agency ethics official determines in writing that the timing of the award of the degree would not cause a reasonable person to question the Secretary's impartiality in a matter affecting the university.
Example 3: An ambassador selected by a nonprofit organization as recipient of its annual award for distinguished service in the interest of world peace may, together with his wife, and children, attend the awards ceremony dinner and accept a crystal bowl worth $200 presented during the ceremony. However, where the organization has also offered airline tickets for the ambassador and his family to travel to the city where the awards ceremony is to be held, the aggregate value of the tickets and the crystal bowl exceeds $200 and he may accept only upon a written determination by the agency ethics official that the award is made as part of an established program of recognition.
Example 1: A Department of Agriculture employee whose husband is a computer programmer employed by an Agriculture Department contractor may attend the company's annual retreat for all of its employees and their families held at a resort facility. However, under § 2635.502, the employee may be disqualified from performing official duties affecting her husband's employer.
Example 2: Where the spouses of other clerical personnel have not been invited, an employee of the Defense Contract Audit Agency whose wife is a clerical worker at a defense contractor may not attend the contractor's annual retreat in Hawaii for corporate officers and members of the board of directors, even though his wife received a special invitation for herself and her spouse.
Example 1: The members of an Army Corps of Engineers environmental advisory committee that meets 6 times per year are special Government employees. A member who has a consulting business may accept an invitation to a $50 dinner from her corporate client, an Army construction contractor, unless, for example, the invitation was extended in order to discuss the activities of the committee.
Example 1: An employee of the Federal Communications Commission with responsibility for drafting regulations affecting all cable television companies wishes to apply for a job opening with a cable television holding company. Once she has properly disqualified herself from further work on the regulations as required by subpart F of this part, she may enter into employment discussions with the company and may accept the company's offer to pay for her airfare, hotel and meals in connection with an interview trip.
Example 1: The Secretary of the Department of Health and Human Services is exempt from the noted Hatch Act restrictions. He may accept an airline ticket and hotel accommodations furnished by the campaign committee of a candidate for the United States Senate in order to give a speech in support of the candidate.
Note: There are statutory authorities implemented other than by part 2635 under which an agency or an employee may be able to accept free attendance or other items not included in the definition of free attendance, such as travel expenses.
Example 1: An aerospace industry association that is a prohibited source sponsors a seminar for which it charges a fee of $100. An Air Force contractor pays $500 to the association so that the association can extend free invitations to five Air Force officials designated by the contractor. The Air Force officials may not accept the gifts of free attendance. Because the contractor specified the invitees and bore the cost of their attendance, the gift of free attendance is considered to be provided by the company and not by the sponsoring association. Had the contractor paid $500 to the association in order that it might invite any five Federal employees, an Air Force official to whom the sponsoring association extended one of the five invitations could attend if his participation were determined to be in the interest of the agency.
Example 2: An employee of the Department of the Treasury authorized to participate in a panel discussion of economic issues as part of a one-day conference may accept the sponsor's waiver of the conference fee. Under the separate authority of § 2635.204 (a), he may accept a token of appreciation for his speech having a market value of $20 or less.
Example 3: An Assistant U.S. Attorney is invited to attend a luncheon meeting of a local bar association to hear a distinguished judge lecture on cross-examining expert witnesses. Although members of the bar association are assessed a $15 fee for the meeting, the Assistant U.S. Attorney may accept the bar association's offer to attend for free, even without a determination of agency interest. The gift can be accepted under the $20 de minimis exception at § 2635.204 (a).
Example 4: An employee of the Department of the Interior authorized to speak on the first day of a four-day conference on endangered species may accept the sponsor's waiver of the conference fee for the first day of the conference. If the conference is widely attended, he may be authorized, based on a determination that his attendance is in the agency's interest, to accept the sponsor's offer to waive the attendance fee for the remainder of the conference.
Example 1: Along with several other Government officials and a number of individuals from the private sector, the Administrator of the Environmental Protection Agency has been invited to the premier showing of a new adventure movie about industrial espionage. The producer is paying all costs of the showing. The Administrator may accept the invitation since the producer is not a prohibited source and no attendance fee is being charged to anyone who has been invited.
Example 2: An employee of the White House Press Office has been invited to a cocktail party given by a noted Washington hostess who is not a prohibited source. The employee may attend even though he has only recently been introduced to the hostess and suspects that he may have been invited because of his official position.
Example 1: A number of local businessmen in a developing country are anxious for a U.S. company to locate a manufacturing facility in their province. An official of the Overseas Private Investment Corporation may accompany the visiting vice president of the U.S. company to a dinner meeting hosted by the businessmen at a province restaurant where the market value of the food and refreshments does not exceed the per diem rate for that country.
Note: 26 U.S.C. 501(c)(3) is authority for tax-exempt treatment of a limited class of nonprofit organizations, including those organized and operated for charitable, religious or educational purposes. Many nonprofit organizations are not exempt from taxation under this section.
[57 FR 35041, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992]
§ 2635.205 Proper disposition of prohibited gifts.
Example 1: To avoid public embarrassment to the seminar sponsor, an employee of the National Park Service did not decline a barometer worth $200 given at the conclusion of his speech on Federal lands policy. The employee must either return the barometer or promptly reimburse the sponsor $200.
Example 1: With approval by the recipient's supervisor, a floral arrangement sent by a disability claimant to a helpful employee of the Social Security Administration may be placed in the office's reception area.
Example 1: A Department of Defense employee wishes to attend a charitable event to which he has been offered a $300 ticket by a prohibited source. Although his attendance is not in the interest of the agency under § 2635.204(g), he may attend if he reimburses the donor the $300 face value of the ticket.
Subpart C-Gifts Between Employees
§ 2635.301 Overview.
This subpart contains standards that prohibit an employee from giving, donating to, or soliciting contributions for, a gift to an official superior and from accepting a gift from an employee receiving less pay than himself, unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart.
§ 2635.302 General standards.
§ 2635.303 Definitions.
For purposes of this subpart, the following definitions shall apply:
Example 1: A supervisory employee of the Agency for International Development has just been reassigned from Washington, DC to Kabul, Afghanistan. As a farewell party, 12 of her subordinates have decided to take her out to lunch at the Khyber Repast. It is understood that each will pay for his own meal and that the cost of the supervisor's lunch will be divided equally among the twelve. Even though the amount they will contribute is not determined until the supervisor orders lunch, the contribution made by those who choose to participate in the farewell lunch is voluntary.
§ 2635.304 Exceptions.
The prohibitions set forth in § 2635.302(a) and (b) do not apply to a gift given or accepted under the circumstances described in paragraph (a) or (b) of this section. A contribution or the solicitation of a contribution that would otherwise violate the prohibitions set forth in § 2635.302(a) and (b) may only be made in accordance with paragraph (c) of this section.
Example 1: Upon returning to work following a vacation at the beach, a claims examiner with the Department of Veterans Affairs may give his supervisor, and his supervisor may accept, a bag of saltwater taffy purchased on the boardwalk for $8.
Example 2: An employee of the Federal Deposit Insurance Corporation whose bank examination responsibilities require frequent travel may not bring her supervisor, and her supervisor may not accept, souvenir coffee mugs from each of the cities she visits in the course of performing her duties, even though each of the mugs costs less than $5. Gifts given on this basis are not occasional.
Example 3: The Secretary of Labor has invited the agency's General Counsel to a dinner party at his home. The General Counsel may bring a $15 bottle of wine to the dinner party and the Secretary may accept this customary hostess gift from his subordinate, even though its cost is in excess of $10.
Example 4: For Christmas, a secretary may give his supervisor, and the supervisor may accept, a poinsettia plant purchased for $10 or less. The secretary may also invite his supervisor to a Christmas party in his home and the supervisor may attend.
Example 1: The administrative assistant to the personnel director of the Tennessee Valley Authority may send a $30 floral arrangement to the personnel director who is in the hospital recovering from surgery. The personnel director may accept the gift.
Example 2: A chemist employed by the Food and Drug Administration has been invited to the wedding of the lab director who is his official superior. He may give the lab director and his bride, and they may accept, a place setting in the couple's selected china pattern purchased for $70.
Example 3: Upon the occasion of the supervisor's retirement from Federal service, an employee of the Fish and Wildlife Service may give her supervisor a book of wildlife photographs which she purchased for $19. The retiring supervisor may accept the book.
An employee may accept such gifts to which a subordinate or other employee receiving less pay than himself has contributed.
Example 1: To mark the occasion of his retirement, members of the immediate staff of the Under Secretary of the Army would like to give him a party and provide him with a gift certificate. They may distribute an announcement of the party and include a nominal amount for a retirement gift in the fee for the party.
Example 2: The General Counsel of the National Endowment for the Arts may not collect contributions for a Christmas gift for the Chairman. Christmas occurs annually and is not an occasion of personal significance.
Example 3: Subordinates may not take up a collection for a gift to an official superior on the occasion of the superior's swearing in or promotion to a higher grade position within the supervisory chain of that organization. These are not events that mark the termination of the subordinate-official superior relationship, nor are they events of personal significance within the meaning of § 2635.304(b). However, subordinates may take up a collection and employees may contribute $3 each to buy refreshments to be consumed by everyone in the immediate office to mark either such occasion.
Example 4: Subordinates may each contribute a nominal amount to a fund to give a gift to an official superior upon the occasion of that superior's transfer or promotion to a position outside the organization.
Example 5: An Assistant Secretary at the Department of the Interior is getting married. His secretary has decided that a microwave oven would be a nice gift from his staff and has informed each of the Assistant Secretary's subordinates that they should contribute $5 for the gift. Her method of collection is improper. Although she may recommend a $5 contribution, the recommendation must be coupled with a statement that the employee whose contribution is solicited is free to contribute less or nothing at all.
Subpart D-Conflicting Financial Interests
§ 2635.401 Overview.
This subpart contains two provisions relating to financial interests. One is a disqualification requirement and the other is a prohibition on acquiring or continuing to hold specific financial interests. An employee may acquire or hold any financial interest not prohibited by § 2635.403. Notwithstanding that his acquisition or holding of a particular interest is proper, an employee is prohibited in accordance with § 2635.402 of this subpart from participating in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him has a financial interest, if the particular matter will have a direct and predictable effect on that interest.
§ 2635.402 Disqualifying financial interests.
Note: Standards applicable when seeking non-Federal employment are contained in subpart F of this part and, if followed, will ensure that an employee does not violate 18 U.S.C. 208(a) or this section when he is negotiating for or has an arrangement concerning future employment. In all other cases where the employee's participation would violate 18 U.S.C. 208(a), an employee shall disqualify himself from participation in the matter in accordance with paragraph (c) of this section or obtain a waiver, as described in paragraph (d) of this section.
Note: If a particular matter involves a specific party or parties, generally the matter will at most only have a direct and predictable effect, for purposes of this subpart, on a financial interest of the employee in or with a party, such as the employee's interest by virtue of owning stock. There may, however, be some situations in which, under the above standards, a particular matter will have a direct and predictable effect on an employee's financial interests in or with a nonparty. For example, if a party is a corporation, a particular matter may also have a direct and predictable effect on an employee's financial interests through ownership of stock in an affiliate, parent, or subsidiary of that party. Similarly, the disposition of a protest against the award of a contract to a particular company may also have a direct and predictable effect on an employee's financial interest in another company listed as a subcontractor in the proposal of one of the competing offerors.
Example 1: An employee of the National Library of Medicine at the National Institutes of Health has just been asked to serve on the technical evaluation panel to review proposals for a new library computer search system. DEF Computer Corporation, a closely held company in which he and his wife own a majority of the stock, has submitted a proposal. Because award of the systems contract to DEF or to any other offeror will have a direct and predictable effect on both his and his wife's financial interests, the employee cannot participate on the technical evaluation team unless his disqualification has been waived.
Example 2: Upon assignment to the technical evaluation panel, the employee in the preceding example finds that DEF Computer Corporation has not submitted a proposal. Rather, LMN Corp., with which DEF competes for private sector business, is one of the six offerors. The employee is not disqualified from serving on the technical evaluation panel. Any effect on the employee's financial interests as a result of the agency's decision to award or not award the systems contract to LMN would be at most indirect and speculative.
Example 1: An employee of the Department of Education serves without compensation on the board of directors of Kinder World, Inc., a nonprofit corporation that engages in good works. Even though her personal financial interests will not be affected, the employee must disqualify herself from participating in the review of a grant application submitted by Kinder World. Award or denial of the grant will affect the financial interests of Kinder World and its financial interests are imputed to her as a member of its board of directors.
Example 2: The spouse of an employee of the Food and Drug Administration has obtained a position with a well established biomedical research company. The company has developed an artificial limb for which it is seeking FDA approval and the employee would ordinarily be asked to participate in the FDA's review and approval process. The spouse is a salaried employee of the company and has no direct ownership interest in the company. Nor does she have an indirect ownership interest, as would be the case, for example, if she were participating in a pension plan that held stock in the company. Her position with the company is such that the granting or withholding of FDA approval will not have a direct and predictable effect on her salary or on her continued employment with the company. Since the FDA approval process will not affect his spouse's financial interests, the employee is not disqualified under § 2635.402 from participating in that process. Nevertheless, the financial interests of the spouse's employer may be disqualifying under the impartiality principle, as implemented at § 2635.502.
Example 1: The Internal Revenue Service's amendment of its regulations to change the manner in which depreciation is calculated is not a particular matter, nor is the Social Security Administration's consideration of changes to its appeal procedures for disability claimants.
Example 2: Consideration by the Interstate Commerce Commission of regulations establishing safety standards for trucks on interstate highways involves a particular matter.
Example 1: An Assistant Secretary of the Department of the Interior owns recreational property that borders on land which is being considered for annexation to a national park. Annexation would directly and predictably increase the value of her vacation property and, thus, she is disqualified from participating in any way in the Department's deliberations or decisions regarding the annexation. Because she is responsible for determining which matters she will work on, she may accomplish her disqualification merely by ensuring that she does not participate in the matter. Because of the level of her position, however, the Assistant Secretary might be wise to establish a record that she has acted properly by providing a written disqualification statement to an official superior and by providing written notification of the disqualification to subordinates to ensure that they do not raise or discuss with her any issues related to the annexation.