10 CFR Appendix A to Part 603, Applicable Federal Statutes, Executive Orders, and Government-wide Regulations
Whether the TIA is a cooperative agreement or a type of assistance transaction other than a cooperative agreement, the terms and conditions of the agreement must provide for recipients' compliance with applicable Federal statutes, Executive Orders and Government-wide regulations. This appendix lists some of the more common requirements to aid in identifying ones that apply to a specific TIA. The list is not intended to be all-inclusive, however; the contracting officer may need to consult legal counsel to verify whether there are others that apply (e.g., due to a provision in the appropriations act for the specific funds in use or due to a statute or rule that applies to a particular program or type of activity).
All financial assistance applicants, including applicants requesting a TIA must comply with the prohibitions concerning lobbying in a Government-wide common rule that the DOE has codified at 10 CFR part 601. The “List of Certifications and Assurances for SF 424(R&R)” on the DOE Applicant and Recipient page at http://grants.pr.doe.gov includes the Government-wide certification that must be provided with a proposal for a financial assistance award, including a TIA.
Currently the DOE approach to communicating Federal statutes, Executive Orders and Government-wide regulations is to provide potential applicants a list of “National Policies Assurances to be Incorporated as Award Terms” in the program announcement (This list is available on the Applicant and Recipient Page at http://grants.pr.doe.gov under Award Terms). The contracting officer should follow this approach for announcements that allow for the award of a TIA. The contracting officer should normally incorporate by reference or attach the list of national policy assurances to a TIA award. Of these requirements, the following four assurances apply to all TIA:
1. Prohibitions on discrimination on the basis of race, color, or national origin in Title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d, et seq.) as implemented by DOE regulations at 10 CFR part 1040. These apply to all financial assistance. They require recipients to flow down the prohibitions to any subrecipients performing a part of the substantive RD&D program (as opposed to suppliers from whom recipients purchase goods or services).
2. Prohibitions on discrimination on the basis of age, in the Age Discrimination Act of 1975 ( 42 U.S.C. 6101, et seq.) as implemented by DOE regulations at 10 CFR part 1040. They apply to all financial assistance and require flow down to subrecipients.
3. Prohibitions on discrimination on the basis of handicap, in section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. 794) as implemented by DOE regulations at 10 CFR part 1041. They apply to all financial assistance and require flow down to subrecipients.
4. Preferences for use of U.S.-flag air carriers in the International Air Transportation Fair Competitive Practices Act of 1974 ( 49 U.S.C. 40118), which apply to uses of U.S. Government funds.
Additional assurance requirements may apply in certain circumstances, as follows:
1. If construction work is to be done under a TIA or its subawards, it is subject to the prohibitions in Executive Order 11246 on discrimination on the basis of race, color, religion, sex, or national origin.
2. If the RD&D involves human subjects or animals, it is subject to the requirements codified by the Department of Health and Human Services at 45 CFR part 46 and implemented by DOE at 10 CFR part 745 and rules on animal acquisition, transport, care, handling and use in 9 CFR parts 1 through 4, Department of Agriculture rules and rules of the Department of Interior at 50 CFR parts 10 through 24 and Commerce at 50 CFR parts 217 through 277, respectively. See item a. or b., respectively, under the heading “Live organisms” included on the DOE “National Policy Assurances To Be Incorporated As Award Terms” on the Applicant and Recipient Page.
3. If the RD&D involves actions that may affect the environment, it is subject to the National Environmental Policy Act, and may also be subject to national policy requirements for flood-prone areas, coastal zones, coastal barriers, wild and scenic rivers, and underground sources of drinking water.
4. If the project may impact a historic property, it is subject to the National Historic Preservation Act of 1966 ( 16 U.S.C. 470, et seq.).