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Policy for Competition in Assistance Agreements: 5700.5
Classification No.: 5700.5Approval Date: 09/12/2002
Policy for Competition in Assistance Agreements
1. PURPOSE.
This Order establishes Environmental Protection Agency (EPA) policy for competition in the award of EPA assistance agreements.
2. AUTHORITY.
The authority for this Order is the Federal Grant and Cooperative Agreement Act of 1977, as amended, 31 U.S.C. 6301(3).
3. EFFECTIVE DATE.
This Order is effective for new assistance agreements and monetary amendments awarded after September 30, 2002.
4. POLICY.
It is EPA policy to promote competition in the award of assistance agreements to the maximum extent practicable. When assistance agreements are awarded competitively, it is EPA policy that the competitive process be fair and open and that no applicant receive an unfair competitive advantage.
5. DEFINITIONS.
a. For purposes of this policy, the term "assistance program" means a group of two or more assistance agreements developed by a Headquarters or Regional Program Office to address common environmental objectives. Examples which illustrate the meaning of the term "common environmental objectives" include air pollution control modeling or monitoring; non-point source water pollution studies; and hazardous waste control surveys or evaluations.
b. The term "funds available for award(s)" refers to the total amount of money that a Program Office has allocated to carry out: (1) an assistance program; or (2) an individual project that is not part of an assistance program. If a project is incrementally funded, "funds available for award" refers to the total amount for which the award is approved.c. The term "Requests for Applications" (RFA) means an announcement that informs the public or appropriate potential applicants of an assistance agreement competition and invites the submission of applications by either a set date or on an ongoing basis.
d. The term "Requests for Initial Proposals" (RFIP) means an announcement that informs the public or appropriate potential applicants of an assistance agreement competition consisting of: (1) the submission of brief initial proposals; (2) selection by the Agency of applicants whose initial proposals merit further consideration; (3) submission of detailed final proposals by the selected applicants; and (4) final selection of applicants to receive awards.
e. The term "Competition Threshold" means the dollar level above which competition is required. For FY 2003 and 2004 the competition threshold is $75,000. Based on an assessment of the impact of this Order on the Agency, the Assistant Administrator for Administration and Resources Management (OARM) will determine the competition threshold for subsequent fiscal years. When the funds available for award are less than the competition threshold, competition is encouraged, but not required (see Section 10.b.)
f. The term "Lead Agency Program Official" means the Assistant Administrator, Regional Administrator, or for purposes of the Office of the Administrator, the Deputy Chief of Staff, responsible for an assistance program or individual award.
g. The term "Grants Competition Advocate" means the official responsible for overseeing implementation of and compliance with the requirements of this Order (see section 13.)
h. The term "Notice of Availability" means an announcement summarizing an RFA or RFIP and explaining to prospective applicants where or how to obtain a complete RFA or RFIP.
6. APPLICABILITY.
a. Except as provided in paragraph b., the competition requirements of this Order apply to all EPA assistance programs and each assistance agreement where the funds available for award(s) exceed the competition threshold. This includes awards for the following activities:
(1) Surveys;
(2) Studies;
(3) Investigations;
(4) Demonstrations;
(5) Research;
(6) Training;
(7) Fellowships;
(8) Environmental Education;
(9) Special Projects;
(10) Technical Assistance; and
(11) Environmental Programs.b. The competition requirements of this Order do not apply to:
(1) Assistance awards to State, interstate, and local agencies and, if applicable, Tribes and Intertribal consortia under the following programs: Programs subject to 40 CFR Part 35, including direct assistance awards from the State Revolving Funds for the District of Columbia, the Territories, excluding Puerto Rico; Wastewater Operator Training grants under section 104(g)(1), Chesapeake Bay Agreement management mechanism implementation and ecosystem monitoring under section 117(e), and BEACH grants under Section 406 of the Clean Water Act; Expense Reimbursement grants under Section 300g-8 (d) of the Safe Drinking Water Act; Leaking Underground Storage Tank Trust Fund Cooperative Agreements; Oil Spill Trust Fund grants; Clean Air Act Section 103 Grants for PM2.5 Monitoring Network grants, National Air Toxins Monitoring Pilots, and Regional Haze Programs; Interstate Commission grants under Section 106 of the Clean Air Act; and State and Tribal response program grants under Section 128(a) of the Comprehensive Environmental Response, Compensation, and Liability Act.
(2) Other programs available only to Indian Tribes and Intertribal Consortia.
(3) Technical Assistance Grants under 40 CFR Part 35, Subpart M, and any other programs that have standards and procedures for competition established by regulation or rule.
(4) Congressional earmarks to identified recipients (assistance agreements awarded in response to an action from Congress or a Congressional Committee as reflected in appropriation or authorizing legislation or applicable legislative history).
(5) Senior Environmental Employment Program Cooperative Agreements.
(6) Assistance awards to Foreign Governments and to United Nations agencies and similar International Organizations, such as the Organization of American States and Organization for Economic Cooperation and Development (OECD).
(7) Other assistance programs, if approved by the Assistant Administrator for OARM. The Lead Agency Program Official must submit the request for an exemption in writing to the Grants Competition Advocate who will forward a recommended decision to the Assistant Administrator for OARM. Final decisions of the Assistant Administrator for OARM will be in writing and the Grants Competition Advocate will post them on the grant competition web site.c. If a Headquarters or Regional Program Office conducts competitions for programs that are exempt under paragraph b., it must do so in a manner consistent with this Order.
7. NON-COMPETITIVE JUSTIFICATION FOR ASSISTANCE PROGRAMS.
a. A Headquarters or Regional Program Office may request that an assistance program otherwise covered by this Order be exempted on one or more of the following grounds:
(1) unusual and compelling urgency;
(2) the interests of national security; or
(3) competition is not in the public interest.
b. The Lead Agency Program Official must submit the request in writing to the Grants Competition Advocate, who will forward a recommended decision to the Assistant Administrator for OARM. The Grants Competition Advocate will post final decisions by the AA for OARM on the grants competition web site. Approved exemptions must be referenced in the decision memoranda for all awards under the program.
8. NON-COMPETITIVE JUSTIFICATION FOR INDIVIDUAL AWARDS.
a. For an individual award that is not part of an assistance program (see section 5.a.), a Headquarters or Regional Program Office may award an assistance agreement non-competitively only if one or more of the following criteria are met:
(1) The EPA funds available for the award are less than or equal to the competition threshold and the scope of work for the project can be completed with the amount of funds awarded. This exception may not be used to justify two or more non-competitive awards of less than or equal to the competition threshold to the same applicant to carry out activities that are part of the same or a larger project.
(2) The Program Office has determined through research, contacting organizations, pre-solicitation conferences, meetings or notices, or similar means, that there is only one responsible source that can adequately perform the work to fulfill project objectives. This determination must be approved by the Program Office director, or equivalent, and this approval may not be redelegated.
(3) The award cannot be delayed due to unusual and compelling urgency or the interests of national security.
(4) The award is required by a Federal statute, executive order, or international agreement to identified recipients.
(5) The award is to an organization that represents the interests of co-regulators or co-implementors (State, Tribal or Local governments) in the execution of national environmental programs. (The membership of such organizations is generally composed of officials of the co-regulator or co-implementor entities, e.g., State or Tribal program directors or commissioners.)
(6) The award is to fund an unsolicited proposal that is unique or innovative and does not resemble the substance of a pending or contemplated competitive solicitation. No EPA employee may take action to directly or indirectly encourage the submission of unsolicited proposals in order to avoid competition under this policy.
(7) The Lead Agency Program Official, with the concurrence of the Grants Competition Advocate, determines that competition is not in the public interest.
b. If a Headquarters or Regional Program Office determines it is appropriate to award an assistance agreement non-competitively based on the criteria in paragraph a., it must provide a detailed justification in the award decision memorandum explaining why competition is inappropriate.
9. AMENDMENTS.
a. General. Headquarters or Regional Program Offices may not use funding amendments to avoid compliance with this policy.
b. Incremental funding amendments. Headquarters or Regional Program Offices may award incremental funding amendments to incrementally-funded assistance agreements without competition, provided the original assistance agreement was awarded competitively or qualified for one or more competition exemptions under sections 8.a.(2) through (7) of this Order. An incremental amendment adds funds to an award when the original application request was partially funded. The amendment must not increase the scope of the project as described in the original award.c. Initial funding amendments of less than or equal to the competition threshold to competitive awards. Headquarters or Regional Program Offices may award a single non-competitive funding amendment of less than or equal to the competition threshold (for other than incremental-funding) to an award if the recipient was selected through a competition process consistent with this policy, provided the amendment is for activities consistent with the original scope of work.
d. Other funding amendments. Appendix A summarizes requirements for all funding amendments.
10. ANNOUNCEMENT OF FUNDING OPPORTUNITIES AND REQUESTS FOR APPLICATIONS AND REQUESTS FOR INITIAL PROPOSALS.
a. EPA's funding opportunities for assistance agreements are identified for the public in the Catalog of Federal Domestic Assistance (CFDA). Each year, EPA Program Offices work with the Grants Administration Division to update existing CFDA descriptions and provide descriptions for new programs. CFDA descriptions include a list of eligible applicants, an explanation of the activities that may be funded, a list of annual funding priorities, an estimate of fiscal year funding availability, an average range of funding for each award, and an estimated number of awards to be made for each fiscal year.
b. Simplified Competition. Headquarters or Regional Program Offices are encouraged to use a competitive process when funds available for award(s) are less than or equal to the competition threshold. If a Program Offices decides to do so, it may:
(1) Informally solicit applications or initial proposals from eligible organizations that can adequately perform the work to fulfill the program or project objectives.
A. Such organizations can be contacted through written correspondence or e-mails that describe the nature of the project(s) that EPA is interested in supporting, the amount of funds available for each award, the factors that the Agency will use in evaluating applications or initial and final proposals, and the due date for applications or initial proposals.
B. Generally, for one award, the Program Office should contact at least three eligible organizations. For multiple awards, the Program Office should contact twice as many organizations as are expected to receive awards.
(2) As an alternative to simplified competition, the Program Office may chose to follow the formal procedures described in paragraph c. of this Section.
c. Open Competition. When funds available for award(s) exceed the competition threshold and except as provided in paragraph d. of this section, the Headquarters or Regional Program Office must publish in the Federal Register or on an EPA web-site, a RFA; a RFIP; or a notice of availability of the RFA or RFIP, generally at least 60 days before the application deadline. The office must also notify the Grants Competition Advocate of the location of the RFA or RFIP (see Section 13.b.). In addition, Program Offices may supplement Federal Register or web-site publication through:
(1) Posting RFAs or RFIPs at www.FedBizOpps.gov/. (Posting at FedBizOps.gov may be required by OMB in the future as the primary method of solicitation. If so, the Competition Advocate will issue implementing guidance.)
(2) Publishing RFAs or RFIPs in newsletters, trade journals, general circulation newspapers, or other written media or by mass mailing.
(3) Providing RFAs or RFIPs using electronic means other than web sites such as through list servers or facsimile mailing lists that are periodically updated. Updates should be made through a process that allows new potential applicants, upon request, to be added to the lists.
(4) Mailing copies of RFAs or RFIPs to eligible organizations on EPA mailing lists that are periodically updated. Updates should be made through a process that allows new potential applicants, upon request, to be added to the lists.
(5) Using other methods as approved by the Grants Competition Advocate that are reasonably calculated to ensure that likely interested parties will be notified.
d. Managed Competition. In cases where a Headquarters or Regional Program Office, with the approval of the Senior Resource Official or higher Agency official and the concurrence of the Grants Competition Advocate, determines that the methods in paragraph (c) are not practicable, the Program Office may provide RFAs or RFIPs directly, through electronic or written media, to a subset of the potential applicants which have demonstrated expertise in the subject matter area. Generally, for one award, Program Offices should notify at least five potential applicants, and for more than one award, at least three times as many potential applicants as the number of expected awards. In conducting managed competitions, Program Offices should vary the subset of organizations that are contacted. The SRO approval and Grants Competition Advocate concurrence must be documented in the award decision memorandum.
11. CONTENTS OF REQUESTS FOR APPLICATIONS OR REQUESTS FOR INITIAL PROPOSALS.
a. RFAs and RFIPs must, as applicable, include the information required in paragraphs a.(1) through (27) of this section. (If OMB establishes government-wide requirements for solicitations, the Competition Advocate will issue implementing guidance.)
(1) The Catalog of Federal Domestic Assistance (CFDA) number and title for the program or project to be funded, where available. (If the request for assignment of a CFDA number is pending, the announcement should indicate this.)
(2) An estimate of: the amount of Federal funds that may be available for award; the number of individual awards; the amounts or range of individual awards; the amount of funding per award; and the project periods for the awards. Whether applications for supplemental awards of existing projects are eligible to compete with applications for new awards should be addressed as well.
(3) Applicant eligibility requirements.
(4) Background information on the types of projects the Agency is interested in supporting, including any limitations on the scope of the statutory authority for the planned award. The Agency's funding priorities or the technical or focus areas in which the Agency intends to provide assistance must be described.
(5) Matching or cost sharing requirements, if any.
(6) Subjects that the applicant must address in the application, or initial proposal including related content and forms and formats. (The list or description of subjects must be consistent with the evaluation factors.)
(7) Process, procedures, due dates, and local time for submitting applications or initial proposals.
(8) The availability of pre-application assistance, if any, to ensure that all applicants have the same opportunity to obtain assistance.
(9) Whether a grant or cooperative agreement will be used, if known, and for a cooperative agreement competition, the anticipated substantial involvement between the Federal government and the recipient.
(10) Any threshold "pass/fail" criteria that an applicant must meet to be considered for an award, such as the need for certain legal authorities to carry out a project.
(11) The evaluation criteria that will be applied to the review of applications or initial and final proposals and the relative importance of each criterion.
(12) Other factors that will be considered in making award decisions after applications are initially evaluated, such as the geographic distribution of funds.
(13) The process that will be used to evaluate applications or initial and final proposals.
(14) The dispute resolution process in accordance with 40 CFR 30.63 and Part 31, subpart F.
(15) Applicable regulations and cost principles, and other administrative requirements.
(16) A statement that applicants should clearly mark information they consider confidential, and that EPA will make final confidentiality decisions in accordance with Agency regulations at 40 CFR. Part 2, Subpart B.
(17) A statement indicating the applicability of Executive Order 12372, Intergovernmental Review of Federal Programs.
(18) A statement that EPA reserves the right to reject all proposals or applications and make no awards.
(19) For RFIPs, a clear explanation that EPA will invite only applicants whose initial proposals are selected to submit detailed final proposals.
(20) Title of RFA or RFIP if different from CFDA title.
(21) RFA or RFIP number or other information which identifies the announcement, if available.
(22) The Program Office name and mailing address with zip code.
(23) The name of the Program Office contacts including telephone number, if appropriate, fax number, and e-mail address.
(24) The address to request application forms (Standard Form 424) and related information or Internet address where materials are accessible. For RFIPs, application forms (SF 424) generally are required only with final proposals.
(26) Information regarding funding restrictions in order to allow the applicant to develop an application and budget consistent with program requirements (e.g., allowable activities, limitations on direct costs such as foreign travel or equipment purchases, and limitations on indirect costs).
(27) Other information which may be required in guidance issued by the Competition Advocate.
b. If a Headquarters or Regional Program Office changes the requirements of a RFA or RFIP before the application deadline, it must notify potential applicants in the same manner that it publicized the original announcement.
c. Generally, to be considered timely, applications and initial proposals must be postmarked by the U.S. Postal Service, hand-delivered, or electronically delivered to the Agency, or include official delivery service documentation indicating EPA acceptance from a delivery service, on or before the deadline date published in the RFA or RFIP.
d. Headquarters or Regional Program Offices may authorize an application deadline extension when justified by appropriate circumstances. The Program Office must notify potential applicants of the extension, in the same manner that it publicized the original notice, or such other manner as to assure all potential applicants are notified.
12. REVIEW, EVALUATION AND APPROVAL PROCEDURES.
a. When funds available for award exceed the competition threshold, Headquarters or Regional Program Offices must establish, through formal written procedures and in accordance with guidance issued by the Grants Competition Advocate, an objective and unbiased process for reviewing and evaluating applications or initial or final proposals based on the RFA or RFIP published evaluation criteria. Funding decisions may not be made on the basis of undisclosed threshold or evaluation criteria. The process must ensure that individual reviewers do not have a conflict of interest with regard to a particular applicant, application or initial or final proposals. While non-federal personnel may participate in the review process, final decisions on the relevance of a proposal to program needs and the selection of recipients must be made by EPA personnel. At a minimum, the process should provide that:
(1) For RFIPs, the Headquarters or Regional Program Office may establish a panel to review and select initial proposals of applicants which will be invited to submit final proposals and to review and rank or list final proposals. An approval official must determine, from the qualified final applications, which to approve.
(2) If a Headquarters or Regional Program Office issues an RFA, a panel may review and rank or list qualified applications. An approval official must review the ranked list or list of qualified applications and determine which to approve.
b. Headquarters or Regional Program Offices may evaluate applications or initial and final proposals based on: points; low, medium and high rating systems; narrative systems; or similar methods.
c. Headquarters or Regional Program Offices may structure the review and evaluation process to lead to rankings of applications or initial and final proposals or to a list of qualified applications. The ranking or final list will be forwarded to the approval official who will select the applications or final proposals which will be funded. If the approval official disagrees with the recommendations of reviewers and selects an application out of rank order or a proposal that is not on the list of qualified proposals, the approval official must document in the decision memorandum the basis for that selection. A departure from the recommendations of reviewers cannot be based on undisclosed evaluation criteria.
d. Headquarters or Regional Program Offices must maintain complete records on the process used to select recipients, including the names of reviewers, score sheets, ranked lists or lists of qualified applications or initial and final proposals, written evaluations, and funding recommendations and decisions.
e. Headquarters or Regional Program Offices must notify unsuccessful applicants in writing, generally within 60 days of selection, that they will not be receiving awards. If requested by the applicant, the Program Office must provide a written explanation as to why the applicant did not receive an award, including a summary of the strengths and weaknesses of the application or initial proposal or final proposal.
f. Headquarters or Regional Program Offices that solicit applications for awards of less than or equal to the competition threshold as provided in paragraph 10.b.(1) may establish an informal process for reviewing and selecting applications, provided the process is unbiased, objective, does not rely on undisclosed evaluation criteria, and reflects guidance issued by the Grants Competition Advocate
13. GRANTS COMPETITION ADVOCATE.
Located in the Office of Grants and Debarment, the Grants Competition Advocate will be responsible for overseeing the implementation of this Order. The Grants Competition Advocate will:
a. Develop guidance concerning implementation of this Order, including guidance on exemptions under this Order, solicitation procedures, post award public disclosure, and evaluation and review procedures.
b. Carry out the specific responsibilities identified in this Order, including those under: sections 6.b.(7); 7.b.; 8.a.(7); 10.c., c.(1) and c.(5); 10.d.; 11.a. and a.(27); 12.a. and f.; 14.a. and b.; and 15.c.
c. Coordinate the development and presentation of training, as necessary, to assure effective implementation of this Order.d. Evaluate the effectiveness of this Order toward providing effective grants competition based on relevant performance measures and reports.
e. Conduct the study required in section 5.e. and recommend to Assistant Administrator for OARM what the competition threshold should be for fiscal years after 2004.
14. PROGRAM OFFICE PROCEDURES.
a. Headquarters Program Offices may develop program-specific procedures to implement this Order. These procedures must be approved by the Grants Competition Advocate who will assure they are posted on the GAD or other web-site, as appropriate.
b. Regional Program Offices may, in consultation with the relevant Regional Grants Management Office, develop program-specific procedures to implement this Order. These procedures must be approved by the Grants Competition Advocate who will assure they are posted on a GAD or other web site, as appropriate.
c. In developing program-specific procedures, headquarters and Regional Program Offices may propose innovative competition processes that better fit the needs and objectives of their particular programs.
15. RESPONSIBILITIES.
a. Headquarters or Regional Program Offices must promote competition and conduct competitions in accordance with this Order. Decision memoranda must document the actions taken to comply with this Order. Further, decision memoranda must provide, if required, the documentation specified in sections 7, 8, 10, and 12 and Appendix A.
b. The Grants Competition Advocate will perform the activities listed in section 13 of this Order.
c. Grants Management Offices (GMO) must review funding packages to ensure that the decision memorandum requirements of this Order are satisfied. If the GMO and the Program Office disagree concerning compliance with the Order, the matter will be resolved by the Grants Competition Advocate.
d. The Office of General Counsel and Office of Regional Counsel will provide legal advice to Headquarters and Regional Program offices conducting competitions.
f. Lead Agency Program Officials must carry out the responsibilities under under sections 6.b.(7) and 7.b. Lead Agency Program Officials, with the concurrence of the Grants Competition Advocate, must also carry out the responsibility under section 8.a.(7).
g. Senior Resource Officials, with the concurrence of the Grants Competition Advocate, must carry out the responsibilities under Section 10.d.
h. The Assistant Administrator for OARM determines the competition threshold for fiscal years after 2004 (see section 5.e.) and carries out responsibilities under sections 6.b.(7) and 7.b of the Order.
APPENDIX A - FUNDING AMENDMENTS
A. INCREMENTAL AMENDMENTS:
An incremental amendment adds funds to an award when the original application request was partially funded. The amendment must not increase the scope of the project as described in the original award.
(1) Competition is not required.
B. INITIAL AMENDMENT OF LESS THAN OR EQUAL TO THE COMPETITION THRESHOLD TO COMPETITIVE AWARDS:
(1) Competition is not required, provided the additional activities are consistent with the scope of work.
C. INITIAL AMENDMENT EXCEEDING THE COMPETITION THRESHOLD TO COMPETITIVE AWARDS:
(1) If the Program Office demonstrates in the decision memorandum that the need for additional funding is based on unusual circumstances that could not have been anticipated at the time of the original award, it may award a non-competitive amendment. Funding can be added for discrete activities necessary to enhance the results or complete the project. Funding cannot be added to expand the original scope of work.
(2) A non-competitive amendment can also be awarded if the Program Office demonstrates in the decision memorandum that the award of additional funding meets one or more of the exception criteria in Section 8.a.(2) through (7) of the Order.
(3) Otherwise, the work must be competed in accordance with the requirements of the Order.
D. SUBSEQUENT AMENDMENTS OF LESS THAN OR EQUAL TO THE COMPETITION THRESHOLD TO COMPETITIVE AWARDS:
(1) Follow the requirements of Paragraph C.
E. SUBSEQUENT AMENDMENTS EXCEEDING THE COMPETITION THRESHOLD TO COMPETITIVE AWARDS:
(1) Follow the requirements of Paragraph C.(2) and (3).
F. INITIAL AMENDMENTS OF LESS THAN OR EQUAL TO THE COMPETITION THRESHOLD TO NON-COMPETITIVE AWARDS:
(1) Follow the requirements of Paragraph C.
G. INITIAL AMENDMENTS EXCEEDING THE COMPETITION THRESHOLD TO NON-COMPETITIVE AWARDS:
(1) Follow the requirements of Paragraph C.(2) and (3).
H. SUBSEQUENT AMENDMENTS OF LESS THAN THE COMPETITION THRESHOLD TO NON-COMPETITIVE AWARDS:
(1) Follow the requirements of Paragraph C.(2) and (3).
I. SUBSEQUENT AMENDMENTS EXCEEDING THE COMPETITION THRESHOLD TO NON-COMPETITIVE AWARDS:
(1) Follow the requirements of Paragraph C.(2) and (3).