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.
The 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.
In 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.
Construction 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
Objectives
In 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.
NEPA, 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.
Section 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.
The 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.
Under 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 12372
EO 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.
Consistent 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.
The 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.
Recipients of NIH
construction grants must comply with, or require their contractors to comply
with, the requirements set forth in the following:
l
Clean Air Act, 42 U.S.C. 7401 et seq., and Federal Water
Pollution Control Act (Clean Water Act), as amended, 33 U.S.C. 1251 et seq.,
for contracts exceeding $100,000
l
Uneconomical, hazardous, or unnecessary use of flood plains for
construction—EO 11988 (May 24, 1977)
l
Provisions for potable water supply—Safe Drinking Water Act
(Title XIV of the Public Health Service Act, as amended)
l
Conservation of petroleum and natural gas—EO 12185
(December 17, 1979)
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.
The 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.”
The 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.
Exhibit 7 lists additional NIH design
requirements and their sources.
Exhibit 7. Design Requirements for NIH-Assisted
Construction
|
Requirement
|
Notes (if appropriate) and source
|
Model Codes for
Seismic Safety
|
Uniform Building Code
|
International Conference of Building Officials
5360 Workman Mill Road
Whittier, CA 90601-2298
Telephone: 562-699-0541 or 800-284-4406
Website: http://www.iccsafe.org/e/category.html
(Online Product Store)
|
National Building Code (1999) and National Fire Prevention
Code (1999)
|
Building Officials and Code Administrators Intl., Inc.
4051 West Fossmoor Road
Country Club Hills, IL 60478
Telephone: 800-214-4321, ext. 371
Website: http://www.bocai.org/boca-es/
|
Southern Building Code Congress Standard Building Code
(1999),
|
Southern Building Code Congress International
900 Montclair Road
Birmingham, AL 35213-1206
Telephone: 205-591-1853
Website: www.sbcci.org (Order & Price List)
|
Recommended Lateral Force Requirements/Commentary (1999),
Structural Engineers Association of California
|
International Conference of Building Officials
5360 Workman Mill Road
Whittier, CA 90601-2298
Telephone: 562-699-0541 or 800-284-4406
Website: http://www.iccsafe.org/e/category.html
(Online Product Store)
|
Other Design Requirements
|
Guidelines for Design and
Construction of Hospital and Healthcare Facilities (2001)
|
AIA, Academy of Architecture
for Health
Telephone: 202-626-7541 or
800-242-3837 (press 4)
Website: http://www.aia.org/publications/
|
American Society of
Heating, Refrigeration, and Air Conditioning Engineers Handbook—HVAC Applications
(1999)
|
ASHRAE
Website: http://www.ashrae.org.
|
Life Safety Code (NFPA Publication 101 and supplements)
|
NFPA
1 Batterymarch Park
Quincy, MA 02269-9101
Telephone: 617-770-3000 or 800-344-3555
Website: http://www.nfpa.org/Codes/index.asp.
|
Standard on Fire Protection for Laboratories Using
Chemicals (NFPA Publication 45)
|
NFPA
1 Batterymarch Park
Quincy, MA 02269-9101
Telephone: 617-770-3000 or 800-344-3555
Website: http://www.nfpa.org/Codes/index.asp
|
Prudent Practices for Safety in Laboratories (1995)
|
National Research Council, National Academy Press
ISBN 0-309-05229-7
Website: http://books.nap.edu/catalog/4911.html.
|
National Sanitation Foundation Standard 49 for Class II
(Laminar Flow) Biohazard Cabinetry (2002)
|
National Sanitation Foundation
327 Jones Drive
Ann Arbor, MI 48105
Telephone: 800-699-9277
Website: http://www.techstreet.com/nsfgate.html
|
Standard Plumbing Code (2000)
|
Southern Building Code Congress International
900 Montclair Road
Birmingham, AL 35213-1206
Telephone: 205-591-1853
Website: http://www.sbcci.org (Order & Price List)
|
Industrial Ventilation: A Manual of Recommended Practice
(2001)
|
American Conference of Government Industrial Hygienists
1330 Kemper Meadow Drive
Cincinnati, OH 45240-1634
Telephone: 513-742-2020
Website: http://www.acgih.org/Products/
|
Health Care Facilities Handbook (2002)
|
NFPA
1 Batterymarch Park
Quincy, MA 02269-9101
Telephone: 617-770-3000 or 800-344-3555
Website: http://www.nfpa.org/Codes/index.asp
|
Standard for Healthcare Facilities (NFPA Publication 99).
|
NFPA
1 Batterymarch Park
Quincy, MA 02269-9101
Telephone: 617-770-3000 or 800-344-3555
Website: http://www.nfpa.org/Codes/index.asp
|
National Electric Code (NFPA
Publication 70)
|
NFPA
1 Batterymarch Park
Quincy, MA 02269-9101
Telephone: 617-770-3000 or 800-344-3555
Website: http://www.nfpa.org/Codes/index.asp
|
Laboratory Ventilation Codes
|
American Industrial Hygiene Association
2700 Prosperity Avenue, Suite 250
Fairfax, VA 22031
Telephone: 703-849-8888
Fax: 703-207-3561
Website: http://www.aiha.org/PublicationsAdvertising/
html/pubadhome.htm
|
Construction 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.
Matching
NIH 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
Activities
Construction 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.
Construction activity usually is carried out through one or
more contracts under the grant. Therefore, the circumstances of the procurement
are critical to the successful completion of the grant-supported project. All
construction work must be procured by the methods described in 45 CFR
74.40 through 74.48 or in 92.36, as applicable. Normally, this means a prime
construction contract is awarded following a competitive sealed bidding process
(previously “formal advertising” in Federal contracting) resulting in a
lump-sum, fixed-price contract. NIH may authorize other procurement methods and
other types of contracts when sealed bidding or a fully competitive negotiated
process is impractical. The specific requirements for contracting for
construction management services and design-build services are described below.
In general, grantees must do
the following:
l Ensure
that all qualified contractors are given an opportunity to bid and have their
bids fairly considered.
l Guarantee,
insofar as possible, that the contract(s) will result in the completion of a
facility (ready for occupancy) that conforms to the design and specifications
approved by the NIH awarding office (or any appropriate modification thereof
with NIH awarding office approval, as required) at a cost within the grantee’s
ability to pay. (NIH expects that the applicant holds (or will hold) title to
the property on which the grant-supported construction is performed.)
l Obtain
NIH awarding office approval of plans and specifications both before soliciting
bids or proposals and before awarding a prime construction contract. The
procurement methods to be employed must be reviewed and approved by the NIH
awarding office. The grantee is responsible for ensuring that the project is
constructed to completion in accordance with the approved plans or
specifications and for obtaining necessary approvals for changes as specified
in this section.
l Take
adequate steps to ensure that the total cost of construction—i.e., the total
cost of all contracts awarded under a project—will be within the amount of
funds available for the project. This can be accomplished by accurate price
estimating and/or the use of bid alternates. A precise description of the scope
of work, specifications, materials, and construction techniques in the
invitation for bids will facilitate accurate cost estimating by both the bidder
and the grantee’s professional representatives. The description of work becomes
especially important when multiple contracts will be let in support of the same
project, because each contractor must know exactly what is involved in the
portion(s) of the job on which it is bidding.
l In
invitations for bids, stipulate a time for completion of the project, expressed
either in calendar days or as a fixed date, for each prime contract to be
awarded under the project.
Where more than one NIH or
HHS program will support a construction project, or where the NIH-supported
project is less than the entire facility or construction to be bid, the grantee
must obtain bids that provide, to the maximum extent possible, the costs for
that portion of the total job that will be financed by NIH funds and any
required grantee matching. This may be done by
l showing
the cost for each building or site in the project, if it consists of more than
one building or construction site and can be divided for bidding and
construction purposes, or
l identifying,
to the extent possible, or prorating the applicable costs when the project is a
single site or contains common space and cannot be divided for bidding and
construction purposes.
Where practical, the grantee may request, in the invitation
for bids, alternates to the base bid that are keyed to specified and explicitly
stated changes in the project scope, materials, or construction techniques.
Alternates may be used when it is anticipated that the amount of the low bid
will exceed the amount of funds available to the grantee to award a contract,
and the grantee must make adjustments to the project to reduce costs in order
to award a contract within the funds available. “Add” alternates will make it
possible to incorporate necessary features that otherwise would not have been
included in the project. Alternates that are selected may be included in
determining the low aggregate bid. The grantee must identify, in its bid
schedule, whether the low bid will be determined inclusive or exclusive of
alternates. If inclusive, then alternates must be awarded in order, up to the amount
of funds available. For example, Alternate 1 will be awarded first, Alternate 2
second, Alternate 3 third, etc. No alternate may be awarded out of sequence. If
all bids exceed the funds available even after the steps described above have
been taken, the grantee may do the following:
l Decline
to award a contract and instead issue a revised invitation for bids containing
changes in specifications or other factors affecting price that have been
approved by the NIH awarding office.
l Negotiate
with the low bidder (this is an exception to sealed bidding) or, if that bidder
should refuse, in writing, to negotiate, negotiate with the next lowest bidder.
Any changes in design and specifications resulting from such negotiations must
be approved by the NIH awarding office. If efforts to negotiate are
unsuccessful, all bids must be canceled, and the project rebid.
l Obtain
approval from the NIH awarding office to authorize a construction management
firm already employed by the grantee to perform the construction work. The
price for the work involved must not exceed the line-item prices (GMP)
stipulated in the construction management contract as approved by the NIH
awarding office (see “Construction
Management Services” in this section for requirements for a construction
management agreement).
l Enter
into a design-build contract (see “Design-Build
Services” in this section) for a functionally equivalent facility.
Construction Management Services
Construction management services are management services
generally procured through negotiation rather than by sealed bidding. These
services include technical consultation during the design stage of a project
and, during the construction phase, organization and direction of construction
activities. In the negotiated procurement process, the RFP must address both
the technical qualifications of the offeror (possibly 75 percent of the
evaluated score) and the business (cost) aspects of the proposal (possibly 25
percent of the evaluated score). The award must be based on a combination of
both the technical and business evaluations. The basis of the award, i.e.,
whether cost or technical qualifications will weigh more heavily in the award decision,
must be stated in the RFP. The services of construction managers may be
procured by sealed bidding if State or local governments prohibit the
procurement of construction management services through negotiation.
Contracting for construction
work on a project covered by a construction management agreement is subject to
all of the requirements otherwise applicable to the solicitation and award of
contracts, except that bids may be obtained by prequalification and selective
solicitation. When prequalification and selective solicitation are used, the
construction manager must
l prequalify
all firms that respond to the announcement and are determined to meet the
prequalification standards;
l establish
bidders lists for each of the invitations for bids, including, at least, all
prequalified firms, and possibly including other known qualified firms;
l solicit,
in writing, bids from all firms on the bidders list;
l consider
bids from any contractor who requests permission to bid and who is determined
by the grantee to meet the prequalification standards; and
l prepare
a bid abstract.
The GMP method may not be
used to acquire construction management services under NIH grants unless the
grantee obtains NIH prior written approval. If this method is used, the grantee
must comply with the following requirements:
l
The construction management contract must place total financial
responsibility on the construction manager to complete construction of the
project at or below the GMP. If the contract exceeds $100,000, the construction
manager will be required to comply with bid guarantee and bonding requirements
as specified in 45 CFR 74.48(c) or 92.36(h).
l The
GMP must be obtained from the construction manager before NIH will authorize
the solicitation and award of the first construction contract. This requirement
applies whether or not phased construction techniques are employed. Each
portion of the work for which a separate contract is expected to be let shall
be separately priced as an individual line item in the GMP contract.
The grantee must transmit all GMP bids to the GMO, with its
recommendation for award to the lowest responsive, responsible bidder.
After the
award of a GMP contract, the following applies:
l All
GMP subcontracts must be bid on the open market, and there must be at least
three bidders to allow for an award. If three bids cannot be obtained, the
grantee must submit, in writing, to the GMO or other designated official, a
detailed explanation of why the GMP contractor is unable to comply, along with
supporting documentation for NIH consideration and approval or other action.
l All
GMP bids must be completely itemized, by trade, to include a separation of
labor and materials, all markups, and no contingency other than that which will
cover change orders as approved by the grantee.
l All
costs lower than the GMP line item bid as approved by the NIH awarding office
shall be refunded or credited to the grantee by the contractor and by the
grantee to NIH. All costs in excess of the GMP after all items have been bid
are the responsibility of the GMP contractor.
l All
subcontract prices must be approved by the NIH awarding office before making
individual awards. The awards shall be made to the lowest-priced responsible,
responsive bidders.
If a contract with a GMP clause was awarded to a
construction management firm before the NIH grant award, the firm’s
subcontractors must compete in an open competition for the subcontract work
under the GMP contract. The GMP contractor must make available to the public
all pertinent information that could influence bids and interpretation of the
design intent.
Design-Build Services
In design-build contracting,
construction firms respond to an RFP by submitting building designs to meet the
grantee’s performance requirements within a GMP (see GMP requirements under “Construction Management Services”
in this section) that covers all required architectural, engineering, and
construction services. The design-build firm must be selected in a manner that
allows maximum feasible competition. The selection process must include public
announcement of the RFP, provided that at least one form of the announcement
receives nationwide distribution; consideration of all proposals from firms
that are determined to be qualified; and selection based on the firms’
qualifications, responsiveness to the criteria in the RFP, and cost.
Because of the nature of
design-build contracting, the following departures from sealed bidding are
authorized:
l Technical
considerations and cost may be treated as competitive factors.
l The
grantee may negotiate cost or design with one or more firms.
On all design-build projects, the grantee must ensure a firm
total cost by including in the contract a provision that extra costs resulting
from errors or omissions in the drawings or estimates will be the design-build
firm’s responsibility.
Equal Employment Opportunity, Labor
Standards,
and Other Contract Requirements
Labor standards and equal employment opportunity
requirements for federally assisted construction must be specified in the
information provided to bidders on construction contracts under NIH grants and
must be included in the resulting contract documents (see 45 CFR Part 74,
Appendix A, and 45 CFR 92.36(i)). NIH construction grants are not subject
to the requirements of the Davis-Bacon Act or the Copeland “Anti-Kickback” Act.
Construction contracts (and subcontracts) awarded under NIH
grants are subject to the requirements of EO 11246 (September 24, 1965),
as amended, as implemented in
41 CFR Part 60-1 by OFCCP, DoL. The grantee is required to include the
“Equal Opportunity Clause” at 41 CFR 60-1.4(b) in any construction
contract under the grant. The contractor must be directed to include this
clause in any applicable subcontracts.
In addition, grantees and construction contractors under NIH
grants are required to comply with the solicitation and contract requirements
for affirmative action specified in 41 CFR Part 60-4 for contracts in
specified geographical areas that will exceed $10,000. These requirements are
specified in the “Notice of Requirement for Affirmative Action to Ensure Equal
Employment Opportunity (EO 11246)” and the “Standard Federal Equal
Employment Opportunity Construction Contract Specifications (EO 11246).”
The OFCCP regulations also require that the grantee notify
the applicable OFCCP regional, area, or field office when it expects to award a
construction contract that will exceed $10,000.
Further information about these requirements and the full
text of these regulations are available at http://www.dol.gov/esa/ofcp_org.htm.
EO 13202, Preservation
of Open Competition and Government Neutrality Towards Government Contractors’
Labor Relations on Federal and Federally Funded Construction Projects (February
17, 2001), as amended by EO 13208 (April 6, 2001), requires executive
agencies issuing grants, providing Federal assistance, or entering into
cooperative agreements for construction projects (including major and minor
A&R) to ensure that bid specifications, project agreements, or other controlling
documents for construction contracts awarded by recipients of grants,
cooperative agreements, or other financial assistance do not do the following:
l Require
bidders, offerors, contractors, or subcontractors, or prohibit them, from
entering into or adhering to agreements with one or more labor organizations,
on the same or other related construction projects.
l Otherwise
discriminate against bidders, offerors, contractors, or subcontractors for
becoming, refusing to become, or remaining signatories, or otherwise adhering
to agreements with one or more labor organizations, on the same or other
related construction projects.
Pursuant to 41 CFR
60-1.8, for any contract that will exceed $10,000, the grantee must require
each prospective construction contractor to submit a certification that the
contractor
l does
not, and will not, maintain any facilities it provides for its employees in a
segregated manner;
l does
not or will not permit its employees to perform their services at any location,
under the contractor’s control, where segregated facilities are maintained; and
l will
obtain a similar certification before awarding any covered subcontract.
Construction contractors and subcontractors under NIH grants
with contracts or subcontracts exceeding $100,000 are subject to the
requirements of the Contract Work Hours and Safety Standards Act, 40 U.S.C.
327-333, concerning the payment of overtime and the maintenance of healthful and
safe working conditions.
Wages paid any laborer or mechanic employed by the
contractor or subcontractor must be computed on the basis of a standard
workweek of 40 hours. For all work in excess of the standard workweek,
mechanics and laborers shall be compensated at a rate not less than
one-and-a-half times the basic rate of pay. If this requirement is violated,
the contractor or subcontractor is liable to the employee for the unpaid wages
and may be liable to the Federal government for liquidated damages. NIH or the
grantee may withhold otherwise payable funds to satisfy any such liability. The
statute also specifies penalties for intentional violation of these
requirements.
Further, pursuant to standards issued by the Secretary of
Labor, no contractor or subcontractor under an NIH grant shall require any
laborer or mechanic employed in the performance of the contract to work in
surroundings or under working conditions that are unsanitary, hazardous, or
dangerous to an individual’s health or safety. Violation of these requirements
may be cause for debarment from future Federal contracts or financial
assistance.
Invitations for bids must stipulate a time for completion of
the project, expressed either in calendar days or as a fixed date, for each
prime contract to be awarded under the project.
At the option of the grantee, a liquidated damages provision
may be included in the construction contract, allowing for assessment of
damages when the contractor has not completed construction by the date
specified in the contract. Liquidated damages must be real and justified and
must be approved by NIH before solicitation. Where damages are assessed, any
amounts paid belong to the grantee.
During or after the period of performance of an NIH-assisted
construction contract, if it is discovered that an employee is entitled to
wages but cannot be located for the purposes of payment (or for some reason
refuses to accept payment), the grantee may eventually have to repay the Federal
government. Therefore, NIH suggests that the contractor be required to turn
over any unclaimed wages to the grantee.
The grantee should notify the GMO that an escrow account has
been established in the affected employee’s name and should maintain the account
for 2 years, or longer if required by State or local law, following the
completion of the contract. Upon the expiration of this period, any amounts
still unclaimed will be disbursed by refunding to NIH either the entire amount,
if the construction project was 100 percent funded by NIH, or an amount
representing the percentage of NIH participation in the project. If the project
was funded by more than one NIH or HHS program at differing rates, the refund
should be based on an average percentage calculated by weighting each program’s
rate of participation by the dollar amount of that program’s contribution.
If the contractor has made a reasonable effort to locate the
employee by having mail forwarded and contacting the employee’s union, the
grantee need not repeat such attempts. If there is reason to believe that the
contractor’s efforts to locate employees that are due wages were not thorough,
the grantee should attempt to locate the employees. Doing so will reduce the
likelihood of future claims against the grantee.
If any wages held in escrow are paid to an employee or an
employee’s legal representative while the account is maintained, a complete
report must be made to the GMO when the account is closed.
Grantees must obtain written
prior approval from the GMO for grantee-initiated project or budget changes
under the following circumstances:
l A
revision that would result in a change in scope of the project, including
proposed modifications that would materially alter the costs of the project,
space utilization, or financial layout, and associated changes in the
previously approved solicitation or contract
l A
revision that would increase the amount of Federal funds needed to complete the
project
l Any
other applicable change as specified in “Administrative
Requirements—Changes in Project and Budget.”
The request for approval must include sufficient information
to allow NIH review of the circumstances and need for the proposed change.
After receipt of written prior approval from the GMO, the grantee may make or
authorize the approved modifications of the construction contract. Other less
substantive modifications to construction contracts may be made without the
prior approval of the NIH awarding office. However, copies of all change orders
to construction contracts must be retained as grant-related records (see “Administrative Requirements—Monitoring—Record
Retention and Access”).
Alteration and Renovation Projects under
Nonconstruction Grants
Two copies of each of the
following documents must be submitted with each request for approval of minor
A&R costs greater than $300,000, but not more than $500,000 (whether
proposed in the application or as a post-award rebudgeting request):
l Single-line
drawing of the existing space and proposed alterations.
l Narrative
description of the proposed functional utilization of the space and equipment
requirements prepared by the program and administrative managers who will use
and be responsible for the working space and, when appropriate, with input from
architectural and engineering advisors. Final drawings and specifications will
be based on this description.
The description
must include a detailed explanation of the need, character, and extent of the
functions to be housed in the space proposed for A&R, using the following
headings, as appropriate:
Ø General
information
Ø Description
of the functions to be performed in the space
Ø
Space schedule (detailed description of floor space)
Ø
List of fixed equipment proposed for the facility
Ø
Cost estimate (see sample format in Exhibit 8)
Ø
Special design problems
Ø
Description of the existing and proposed utility systems for the
modified space
Ø
Description of plans to provide accessibility for the physically
handicapped
Ø
Provisions for meeting the requirements of the Life Safety Code
Ø
Length of the property lease if the space is rented
Ø
Other information required by program legislation or regulations.
When the proposed alteration
is to occur in a building that is under construction or in an incomplete
structure, two copies of the following documentation also must be provided:
l Detailed
justification for the need to perform the work before the building is completed
l Cost
comparison between doing the work before and after the building is completed
l Description
of other specific benefits to be gained by doing the work before the building
is completed.
Applicants/grantees undertaking A&R projects that will
require NIH funding of more than $500,000 are subject to the review, approval,
and documentation requirements included or referenced in this section for
construction grants.
Exhibit 8. Sample Format for A&R Cost Estimate
|
Estimate the costs in which the Federal
government is requested to participate:
|
Cost category
|
Amount
|
A&R costs (to Federal
government)
|
|
Demolition
|
$
|
General alteration and
renovation (carpentry, masonry, painting)
|
$
|
Plumbing
|
$
|
Heating, ventilation, and
air conditioning
|
$
|
Electrical
|
$
|
Architect’s and engineer’s
fees
|
$
|
Other costs (specify)
|
$
|
Total A&R costs
|
$
|
Fixed equipment costs
|
$
|
List sources and amounts of funds for total
A&R project
|
NIH sources and amounts
|
Sources and amounts other
than NIH
|
Other Information
|
Total gross square
meters/feet of floor area in A&R proposal
|
|
Estimated cost per gross
square meter/foot excluding fixed equipment
|
|
Total net square
meters/feet of floor area in A&R proposal
|
|
Estimated cost per net square meter/foot, excluding fixed
equipment
|
|
|
|
|
Real Property Management Standards
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.
Use and Disposition
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).
Notice of Federal Interest
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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