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NIH Grants Policy Statement (12/03) Part II: Terms and Conditions of NIH Grant Awards Subpart B: Terms and Conditions for Specific Types of Grants, Grantees, and Activities -- File 1 of 5
Subpart B: Terms and Conditions for Specific Types of Grants, Grantees, and Activities This subpart includes terms and conditions that vary from, are in addition to, elaborate on, or highlight the standard requirements and terms and conditions in Subpart A of this part because of the type of grant, grantee, or grant-supported activity. Each section of this subpart specifies how the coverage relates to that in Subpart A and must be used in conjunction with Subpart A to determine all of the applicable terms and conditions of a covered type of activity, grantee, or award. Cross-references in this subpart to other sections within this subpart are specifically noted; otherwise the cross-reference is to the cited section in Subpart A. This subpart contains the following sections: l Construction grants, including major A&R activities under grants with specific statutory authority for construction or modernization activities (this section also includes requirements for specified A&R activities under nonconstruction grants) l Individual fellowships and institutional research training grants (also termed “fellowships” and “training grants”) under the Kirschstein-NRSA program l Modular applications and awards l Conference grants l Consortium agreements l Grants to foreign institutions, international organizations, and domestic grants with a foreign component l Grants to Federal institutions and payments to (or on behalf of) Federal employees under grants l Grants to for-profit organizations l Research patient care costs. CONSTRUCTION GRANTSGeneralThe following requirements apply to NIH construction grants and major A&R activities under grants with statutory construction or modernization authority (hereafter, “construction grants”) and, as specified, to A&R projects under nonconstruction grants. Construction grants are awarded under the C06 activity code or support mechanism. Except as indicated in this section, these requirements apply to construction grants in lieu of the requirements in Subpart A of this part. Applicants and grantees also should refer to the construction grant program regulations (42 CFR Part 52b), 45 CFR Part 74 or 92, and any applicable IC guidance. Any questions concerning the applicability of particular requirements or policies should be directed to the GMO or other official designated on the NGA. This section uses the following definitions: l Construction. Construction of new buildings or the modernization of, or completion of shell space in, existing buildings (including the installation of fixed equipment, but excluding the cost of land and off-site improvements). l Modernization. Alteration, renovation, remodeling, improvement, expansion, and repair of existing buildings and the provision of equipment necessary to make a building suitable for use by a particular program. EligibilityIn addition to any program-specific eligibility criteria, eligible applicants for construction grants must be public or private non-profit entities and must be located in the United States or in U.S. territories or possessions. For-profit organizations and foreign organizations are not eligible to receive construction grants. Review and ApprovalConstruction grant applications are subject to peer review. Review criteria and NIH selection factors are as follows: l Scientific merit of the research program activities that will be carried out in the proposed facility l NIH programmatic relevance l Research and financial need for the project l Scientific or professional standing or reputation of the applicant and of its existing or proposed officers and research staff l Relationship to the applicant’s overall research programs and impact on relevant research programs and facilities in the geographic area and nationwide l Availability, by affiliation or other association, of other scientific or health personnel and facilities for carrying out the proposed research program, including, when warranted, the adequacy of a biohazard control and containment program l Project cost and design. Public Policy Requirements and ObjectivesIn addition to the public policy requirements and objectives specified in Subpart A, construction grants are subject to the following public policy requirements. Questions about whether a particular requirement applies to A&R activities under nonconstruction grants should be directed to the GMO. Grantees receiving construction grants also must require contractors and subcontractors providing construction services to comply with certain Federal labor standards. These labor standards are discussed in “Equal Employment Opportunity, Labor Standards, and Other Contract Requirements” in this section. The National Environmental Policy Act of 1969NEPA, as amended (Public Law 91-190), establishes national policy goals and procedures to protect and enhance the environment, including protection against natural disasters. NEPA requires all Federal agencies to consider the probable environmental consequences of any major Federal activity, including grant-supported activities. To comply with NEPA for its grant-supported activities, NIH requires the environmental aspects of construction grants (and certain nonconstruction projects as specified by NIH) to be reviewed and evaluated by NIH technical staff before final action on the application. With respect to earthquakes, structures will be evaluated in accordance with the lateral forces provisions of the Uniform Building Code. If NEPA applies, the application must be accompanied by the applicant’s own separately bound environmental analysis to facilitate review and evaluation for environmental concerns before approval or other action on the application. An environmental analysis means a written review that indicates the expected environmental effects resulting from the proposed action, defines the current and future implications of those effects, and lists any proposed actions or safeguards to avoid or reduce any negative environmental effects. If NIH has not indicated in the RFA that NEPA applies, no environmental analysis is necessary, unless, in an unusual situation, the applicant anticipates a significant environmental consequence or, following receipt of an application, an official of the NIH awarding office indicates the need for an environmental analysis. In those cases, an environmental analysis shall be provided with the application or as requested by NIH. Public DisclosureSection 102 of NEPA and EO 11514 (March 5, 1970) provide for public comment and participation in the environmental impact review process. Applicants are required to publicly disclose the project in a newspaper or other publicly available medium and to describe its environmental impact concurrent with notification to the SPOC (see “Intergovernmental Review under Executive Order 12372” in this section). An example of a suitable disclosure statement follows: Notice is hereby given that the Uptown Medical School proposes to construct additional space, partially utilizing Federal funds. The proposed construction project is the addition of 2,700 square feet connected to the existing Allen Building, which is located at 5333 Main Street, Downtown, Ohio. The Medical School has evaluated the environmental and community impact of the proposed construction. There will be construction noise and increased construction traffic during the construction period. No significant permanent environmental impacts are foreseen. All building permits and zoning approvals have been obtained. In accordance with Executive Order 11514 (March 5, 1970), which implements the National Environmental Policy Act of 1969, as amended, any individual or group may comment on, or request information concerning, the environmental implications of the proposed project. Communications should be addressed to the Office of Planning, Uptown Medical School, and must be received by (date). The Federal grant application may be reviewed at the Office of the Dean, School of Medicine, 5333 Main Street, during normal working hours. Flood InsuranceThe Flood Disaster Protection Act of 1973, as amended (Public Law 93-234), provides that no Federal financial assistance to acquire, modernize, or construct property may be provided in identified flood-prone communities in the United States, unless the community participates in the National Flood Insurance Program and flood insurance is purchased within 1 year of the identification. The flood insurance purchase requirement applies to both public and private applicants for NIH support. Lists of flood-prone areas that are eligible for flood insurance are published in the Federal Register by FEMA. Historic Properties and Archeological SitesUnder the provisions of the National Historic Preservation Act, as amended, and the Archeological and Historical Preservation Act of 1960, as amended, the Secretary of the Interior has compiled a National Register of Historic Places—sites and buildings of significant importance to U.S. history.[15] The statutes require that, before approval of a construction grant application (or other applications as specified by NIH), NIH take into account the effect on these sites of the proposed construction (or other) project. The applicant must determine whether activities using NIH financial assistance will affect a property listed in the National Register. If a designated historic property will be affected, the applicant must obtain clearance from the appropriate State Historic Preservation Office before submitting the application. Failure to obtain this clearance will delay NIH action on an application. The State Historic Preservation Liaison Officer or the National Trust for Historic Preservation may be contacted for additional details. Intergovernmental Review under Executive Order 12372EO 12372, Intergovernmental Review of Federal Programs (July 14, 1982), as amended, requires consultation with State and local officials on certain proposed Federal assistance. NIH construction grants are subject to these requirements, as implemented by 45 CFR Part 100, Intergovernmental Review of Department of Health and Human Services Programs and Activities. Applicants (other than federally recognized Indian tribal governments) should contact their SPOC as early as possible to alert the SPOC to the forthcoming application and to obtain necessary instructions on the State process (see http://www.whitehouse.gov/omb/grants/spoc.html for a list of SPOCs). The SPOC is given 60 days to review the application. To accommodate this time frame and the NIH review process, an applicant must provide a copy of the application to the SPOC no later than the time the application is submitted to NIH. SPOC comments must be submitted to NIH with the application, or the application must indicate the date on which the application was provided to the SPOC for review. If SPOC comments are not submitted with the application, the applicant must provide them upon receipt and may include its reaction to the comments, or it must notify NIH that it did not receive any SPOC response. Metric SystemConsistent with EO 12770 (July 25, 1991), Metric Usage in Federal Government Programs, all construction projects supported by NIH grant funds shall be designed using the metric system. Relocation Assistance and Real Property AcquisitionThe Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the Uniform Relocation Act), 42 U.S.C. 4601 et seq., applies to all programs or projects undertaken by Federal agencies or with Federal financial assistance that cause the displacement of any person. The HHS requirements for complying with the Uniform Relocation Act are set forth in 49 CFR Part 24. Those regulations provide uniform policies and procedures for the acquisition of real property, including acquisition by grantees, and require that displaced people be treated fairly and equitably. They encourage acquiring entities to negotiate promptly and amicably with property owners so property owners’ interests are protected and litigation can be avoided. Other Public Policy RequirementsRecipients of NIH construction grants must comply with, or require their contractors to comply with, the requirements set forth in the following: l Conservation of petroleum and natural gas—EO 12185 (December 17, 1979) Design Requirements for NIH-Assisted Construction[16]Grantees may not advertise for bids or negotiate a contract for construction or A&R activities exceeding $500,000 in direct costs until working drawings and specifications have been approved by the designated NIH official. One purpose of the NIH review is to apply program-specific design standards to the working drawings and specifications to ensure that program needs are met and the facility will suitably accommodate the activities to be carried out there. In addition, NIH will determine whether the final plans and specifications conform to the minimum standards of construction and equipment specified in 42 CFR Part 52b, in the NIH Design Policy and Guidelines issued by NIH’s DES, and in the documents cited in this subsection. (The NIH Design Policy and Guidelines are available at http://des.od.nih.gov/eWeb/planning/html/nihpol.htm.) These standards may be modified by DES. The grantee will be subject to the standards in effect at the time of design or construction, as appropriate. NIH will monitor compliance during the project’s design phase. Where State or local codes are proposed as a basis for facility design in lieu of the NIH design requirements, a prior determination must be made by NIH that the specific State or local code is equivalent to, or exceeds, NIH requirements. If State and local codes or requirements exceed the design requirements set forth in NIH regulations or incorporated in policy guidance, the more stringent requirements will apply. Elimination of Architectural Barriers to the Physically HandicappedThe Architectural Barriers Act of 1968, as amended, the Federal Property Management Regulations 101-19.6 (41 CFR 101-19.6), and the Uniform Federal Accessibility Standards issued by the General Services Administration (41 CFR 101-19.6, Appendix A) set forth requirements to make facilities accessible to, and usable by, the physically handicapped and include minimum design standards. All new facilities constructed with NIH grant support must comply with these requirements. These minimum standards must be included in the specifications for any NIH-funded new construction unless the grantee proposes to substitute standards that meet or exceed these standards. Where NIH assistance is provided for alteration or renovation (including modernization and expansion) of existing facilities, the altered facility (or part of the facility) must comply, including use of the minimum standards in the specifications. The grantee will be responsible for conducting inspections to ensure compliance with these standards by any contractor performing construction services under the grant. Also see “Public Policy Requirements and Objectives—Civil Rights—Rehabilitation Act of 1973.” Seismic Safety for Federally Assisted ConstructionThe Earthquake Hazards Reduction Act of 1977, as amended (Public Law 95-124), and EO 12699, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction (January 5, 1990) apply to NIH-assisted construction. The EO requires that new federally assisted or regulated buildings be designed and constructed using appropriate seismic standards. Where necessary, special structural and other features to protect life and minimize damage to facilities from tornadoes also may be required. The model codes listed in Exhibit 7 provide a level of seismic safety considered appropriate for implementing EO 12699 and apply to all federally assisted construction in the applicable geographic location. Also acceptable are State, county, or local jurisdictional building ordinances that adopt and enforce these model codes in their entirety or without material revisions that would reduce the level of seismic safety. Additional Design RequirementsExhibit 7 lists additional NIH design requirements and their sources.
FundingConstruction grants usually involve a single award, covering more than 1 year, made on the basis of an application for the entire construction project. The project period system of funding normally is not used for construction grants. MatchingNIH construction grants generally require the grantee to share in the costs of the project. This requirement, if applicable, is stated as a matching percentage; the grantee’s match is usually at least 50 percent of the total allowable project costs. Any required non-Federal participation may be in the form of allowable costs incurred by the grantee or a contractor under the grant. Unless required by statute or regulation, NIH generally does not allow grantees to use the value of third-party in-kind contributions as a source of matching. Matching costs and in-kind contributions (if authorized) must meet the allowability and documentation requirements of 45 CFR 74.23 or 92.24, as applicable. Costs claimed as matching also are subject to the requirements of the NIHGPS which apply to the expenditure of NIH funds. The source and amount of funds proposed by an applicant to meet a matching requirement must be identified in the application. The applicant will be required to demonstrate that the funds are committed or available before award. This may take the form of an assurance as specified by the NIH awarding office. The amount of NIH (Federal) funds awarded, combined with the non-Federal share, will constitute the total approved budget as shown in the NGA. The prior-approval and other dollar thresholds contained in this section are determined on the basis of the total approved budget unless otherwise specified. Allowable and Unallowable Costs and ActivitiesConstruction activity is allowable only when program legislation includes specific authority for construction, modernization, or major alteration and renovation of facilities and when NIH specifically authorizes such costs. The following lists indicate types of costs and activities generally allowable and unallowable under NIH construction grants. The lists are not all-inclusive. Program guidelines and other terms and conditions of the award should be consulted for the specific costs allowable under a particular program or grant. Allowable costs and activities include the following: l Acquisition and installation of fixed equipment. l A&R. Under programs that have statutory A&R, modernization, or construction grant authority, the costs of adapting any of the following interior building features to the needs of the grant-supported activity are allowable: Ø Physical characteristics of space, such as interior dimensions, surfaces, and finishes Ø Internal environment, such as heating, ventilation, humidity, and acoustics Ø Utility services, such as plumbing, electricity, gas, vacuum, or other laboratory piping Ø Completion of unfinished shell space to make it suitable for purposes other than human occupancy, such as the storage of pharmaceuticals Ø Fixed equipment, such as casework, fume hoods, large autoclaves, or biological safety cabinets. A&R costs of this type associated with a building under construction or an otherwise incomplete structure may be allowed if Ø the space is to be adapted to particular program needs, Ø it is cost-effective to perform the work while the building is being constructed or the structure is being completed, and Ø A&R costs are limited to the difference between the cost of completing the interior space for general use and the cost of adapting the space and utilities to meet specific program requirements. When the grantee’s own construction and maintenance staffs are used in carrying out the A&R (i.e., force account), the associated costs are allowable provided the grantee can document that force account is less expensive than if the project were competitively bid and can substantiate all costs with appropriate receipts for the purchase of materials and certified pay records for the labor involved. This requires prior approval by the NIH awarding office. l Architectural and engineering services. Also see “Pre-Award Costs” in this subsection. l Bid advertising. l Bid guarantees and performance and payment bonds. Bid guarantees and performance and payment bonds are allowable as provided in 45 CFR 74.48 or 92.36(h). l Contingency fund. Applicants for construction grants may include a project contingency fund in initial cost estimates to provide for unanticipated charges. These funds will be limited to 5 percent of construction and equipment costs before bids are received and must be reduced to 2 percent after a construction contract has been awarded. l Filing fees for recording the NFI. See “Real Property Management Standards—Notice of Federal Interest” in this section. l Inspection fees. l Insurance. Costs of title insurance, physical destruction insurance, and liability insurance are generally allowable. Physical destruction and liability insurance are usually treated as F&A costs but may be treated as direct costs in accordance with the established policy of the grantee, consistently applied regardless of the source of funds. Title insurance, if required, may be charged to the grant in proportion to the amount of NIH participation in the property (see “Real Property Management Standards—Insurance Requirements” in this section). l Legal fees. Legal fees related to obtaining a legal opinion regarding title to a site. l Pre-award costs. Costs incurred before an award for architect’s fees and consultant’s fees necessary to the planning and design of the project are allowable if the project is subsequently approved and funded. l Project management. l Relocation expenses. l Sidewalks necessary for use of facility. l Site survey and soil investigation. l Site clearance. Site clearance costs are allowable as long as they are reflected in the bid. Unallowable costs and activities include the following: l Bonus payments to contractors. Bonus payments to contractors, including those to guaranteed maximum price contractors, are unallowable. l Construction of shell space designed for completion at a future date. l Consultant fees not related to actual construction. l Damage judgment suits. l Equipment purchased through a conditional sales contract. l F&A costs. l Fund-raising expenses. l Land acquisition. l Legal services not related to site acquisition. l Movable equipment. l Off-site improvements. Off-site improvements such as parking lots are not allowable. Procurement Requirements for
Construction Services
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Exhibit 8. Sample Format for A&R Cost Estimate |
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Estimate the costs in which the Federal government is requested to participate: |
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Cost category |
Amount |
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A&R costs (to Federal government) |
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Demolition |
$ |
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General alteration and renovation (carpentry, masonry, painting) |
$ |
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Plumbing |
$ |
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Heating, ventilation, and air conditioning |
$ |
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Electrical |
$ |
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Architect’s and engineer’s fees |
$ |
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Other costs (specify) |
$ |
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Total A&R costs |
$ |
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Fixed equipment costs |
$ |
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List sources and amounts of funds for total A&R project |
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NIH sources and amounts |
Sources and amounts other than NIH |
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Other Information |
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Total gross square meters/feet of floor area in A&R proposal |
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Estimated cost per gross square meter/foot excluding fixed equipment |
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Total net square meters/feet of floor area in A&R proposal |
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Estimated cost per net square meter/foot, excluding fixed equipment |
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Real property constructed under an NIH grant-supported project is subject to the requirements of 42 CFR Part 52b and the provisions of 45 CFR 74.30 through 74.32 and 74.37 or 92.31, as applicable, regarding use, transfer of title, and disposition, unless alternate requirements are specified in the governing statute. Statutory provisions may specify alternate requirements for the length of the grantee’s accountability obligations, the Federal right of recovery, or waivers. For example, the governing statute for a construction grant program may contain usage and disposition requirements that are in addition to or different from the usage and disposition requirements of the governing regulations. To the extent statutory provisions differ from the requirements of 42 CFR Part 52b and/or 45 CFR Part 74 or 92, including those described in this subsection, the statutory provisions, as reflected in the terms and conditions of the award, apply.
Real property constructed or renovated with NIH grant support may not be conveyed, transferred, assigned, mortgaged, leased, or in any other manner encumbered by the grantee, except as expressly authorized in writing by NIH. If the grantee defaults in any way on a mortgage, the grantee shall immediately notify the GMO by telephone and in writing. If the mortgagor intends to foreclose, the grantee must notify the GMO in writing at least 30 days before the foreclosure action is initiated.
The mortgage agreement must specifically allow, in the case of default, that NIH or its designee may assume the role of mortgagor and continue to make payments. If NIH (or its designee) chooses not to assume the role of mortgagor in the case of default, the grantee shall pay NIH an amount equal to the share of the sales proceeds otherwise due the grantee multiplied by the NIH share of the property.
Any NIH assignment of the property and mortgage responsibilities to any party other than NIH shall be subject to prior approval of the mortgagor.
NIH construction awards generally require that a facility be used for biomedical or behavioral research as long as needed for that purpose. NIH defines this period as 20 years from the date of beneficial occupancy unless another period is prescribed by statute. During that time, the grantee shall comply with applicable disposition requirements. If, during the required usage period, the facility is no longer used for the original intended purpose and NIH did not provide prior approval for an alternate use, NIH may recover its share. NIH will monitor grantee compliance with these requirements for the duration of the required usage period. After the required usage period, the grantee has no further accountability to NIH concerning the use of the property or any sales proceeds.
For disposition of property acquired on an amortized acquisition basis, the formulas in 45 CFR 74.32 and 92.31 do not apply in determining the Federal share. In cases of amortized acquisition, the Federal share will be determined by multiplying the amount of mortgage principal already repaid at the time of disposition by the average Federal participation (taken from the FSR) plus the increase in value over the purchase price multiplied by the average Federal participation plus the Federal participation in the down payment. The computation of the Federal share of real property acquired with long-term debt financing must be computed for each year of grant support in which Federal funds are used to meet all or a portion of the down payment and/or principal on the mortgage.
If a real estate transaction funded in whole or in part by NIH requires the use of a real estate appraisal (including, but not limited, to appraisals to determine the Federal share of real property and appraisals to determine required insurance levels), the appraisal must be performed by appraisers certified or licensed by the applicable State in accordance with the requirements established by Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (Public Law 101-73).
To protect the Federal interest in real property that has been constructed or has undergone major renovation with NIH grant funds, grantees shall record a NFI in the appropriate official records of the jurisdiction in which the property is located. The time of recordation shall be when construction or renovation begins. Fees charged for recording the NFI may be charged to the grant (see “Allowable and Unallowable Costs and Activities” in this section).
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