11. Assurances, Representations, and Certifications
An institutional official normally is required to provide certain assurances, representations, and certification to a potential sponsor when the award contemplates the use of federal funds. This is usually provided at the proposal submission stage.
The assurances, representations and certifications may be incorporated by reference in signing the proposal or are incorporated specifically of by reference in the award document.
In general, it is believed that certifications have higher legal requirements than assurances and representations.
Assurance - An assurance is a written guarantee or pledge that one will operate in a certain way or comply with certain terms and conditions of an award.
Representation - A representation is an account or statement of fact concerning an offeror and its capabilities and abilities to perform. It is viewed legally as an inducement to parties to enter into a contract. It may introduce terms into a contract and affect performance. Representations may be a vital part of a contract, a "condition" of an award and an untruth may be the basis for an award being withdrawn. A "warranty" or an independent subsidiary promise, may allow the sponsor to claim damages, but normally will not provide grounds to invalidate the entire contract.
Certification - A certification is the submission of documents that serve as guarantees that the award applicant meets certain standards or will comply with certain governmental acts.
Generally, the government views a certification as an attestation for which false certification may make the individual subject to criminal sanctions.
Although all the certifications carry the same force, many institutions approach the certification requirements by separating then into three categories:
- Those that need special monitoring (e.g. fraud, waste, abuse, research subjects and costs)
- Those that need routine monitoring (e.g. access to records, labor standards, nondiscrimination/affirmative action, and environmental issues)
- Those that need minimal monitoring (e.g. place of performance, patents & copyrights, and other items requiring merely that certain information be provided to the sponsoring agency at certain times)
Certifications are provided in writing either within the application guidelines or at the time of the award and normally are signed by the authorized signatory of the institution.
Some certifications and assurances may require submission of a separate document (e.g., human subjects assurance, IRB certification, civil rights assurance).
The individual institution is responsible for establishing and maintaining the necessary processes to monitor its compliance and that of its employees, consortium participants, and contractors with these requirements; taking appropriate action to meet the stated objectives; and informing the sponsor of any problems or concerns.
Certification categories normally represented are:
- Debarment and Suspension (specific certification language included in application instructions)
- Drug-Free Workplace
- Lobbying (specific certification language included in application instructions)
- Financial Conflict of Interest
- Research Misconduct
- Non delinquency on Federal Debt
- Human Embryonic Stem Cell Research
- Human Subjects
- Research on Transplantation of Fetal Tissue
- Recombinant DNA Molecules and Human Gene Transfer Research
- Vertebrate Animals
- Women and Minority Inclusion Policy
- Inclusion of Children Policy
- Age Discrimination
- Civil Rights
- Sex Discrimination
- Handicapped Individuals
- National Historic Preservation Act of 1966
- Protection and Enhancement of the Cultural Environment
- Archaeological and Historic Preservation Act of 1974
- Flood Disaster Protection Act of 1973
- Notification of Violating Facilities
- Protection of Wetlands
- Evaluation of Flood Hazards in Flood Plains
- Safe Drinking Water Act of 1974
- Lead-Based Paint Poisoning Prevention Act
- Paperwork Reduction Act
To help determine which public policy requirements and objectives apply to the institution and whether a requirement should be included in a consortium agreement or contract for routine goods or services under the grant, review the chart on the following link (scroll down the page to Exhibit 2): NIH Grants Policy Statement, Part II: Terms and Conditions of NIH Grant Awards, Subpart A, Exhibit 2.
Note: Even if the exhibit indicates that a requirement is not applicable, the public policy requirement could be applicable in a specific situation, e.g., if a contract under a grant involves research activity. Therefore, this exhibit should be used as general guidance only.
The grantee should consult the terms and conditions of its award and should contact the GMO if it has any question concerning the applicability of a particular public policy requirement or objective.
The exhibit also indicates where, in the NIHGPS, the individual public policy requirements and objectives are covered in more detail. The grantee should consult the governing statute, regulations, or other cited policies or documents for complete information.
Refer to: USC CHAPTER 10 - DRUG-FREE WORKPLACE
The Drug-Free Workplace Act of 1988 requires that all organizations receiving grants from any Federal agency agree to maintain a drug-free workplace.
DHHS regulations implementing the Drug-Free Workplace Act of 1988 (Public Law 100-690, Title V, Subtitle D) are now provided in 45 CFR 82, "Government-wide Requirements for Drug-Free Workplace (Financial Assistance)." Changes in this Government-wide requirement (adopted in the November 26, 2003 Federal Register Notice) now implement this as a term and condition of an award.
Non-Procurement, Debarment, and Suspension
Effective October 1, 1988, colleges and universities, along with other recipients of federal funds, must participate in a government-wide certification system for non-procurement debarment and suspension. In so doing, a university must certify on each proposal it submits that its principals (a principal is defined as an officer, director, owner, partner, key employee or other person with primary management or supervisory responsibilities):
- are not presently debarred, suspended proposed for debarment, declared ineligible or voluntary excluded from covered transactions by any federal department or agency;
- have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract under a public transaction;
- violation of federal or state anti-trust statutes, or commission of embezzlement, forgery, bribery, falsification or destruction of records, making these false statements, or receiving stolen property;
- are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (civil, state or local) with commission of any of the offenses enumerated in paragraph two (2) of this certification;
- have not within a three-year period preceding this application/proposal has one or more public transactions terminated for causes of default.
Refer to the NSF Grants Proposal, Exhibit II-4, Debarment and Suspension Certification for further information.
Misconduct in Research
The U.S. Office of Research Integrity (ORI) defines Research Misconduct as fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.
- Fabrication is making up data or results and recording or reporting them.
- Falsification is manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research method or result is not accurately represented in the research record.
- Plagiarism is the appropriation of another person's ideas, processes, results, or words without giving appropriate credit. Plagiarism does not encompass disagreements over order of authorship, rights to publish, or the use of ideas among collaborators.
Honest error or differences of opinion are not considered research misconduct.
The Research Integrity & Compliance, Research Misconduct Program provides information on research misconduct, reporting possible research misconduct, or the investigation process to researchers at USF.
Authorship disputes are not included within the university's policies for research misconduct. Helpful information is available on the USF Health Web Page for Determination and Responsibilities of Authorship.
USF's procedures are consistent with Federal regulation 42 CFR Part 93 and are to be followed in cases of allegations of Research Misconduct at the University. Their purpose is to protect the safety, welfare, and rights of the University's faculty, staff, and students, and the integrity of the University itself, so that public confidence in the University's research activities is assured. They provide a guide for investigating allegations of Research Misconduct and for reporting results to federal agencies and Research Sponsors that is prompt, impartial, and confidential. These procedures describe protections from malicious or unsupported claims, but do not create any substantive or procedural rights or benefits enforceable as law by a party against the University, its agencies, officers, or employees.
Title 31, United States Code, Section 1352, entitled "Limitation on Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions," generally prohibits recipients of Federal grants and cooperative agreements from using Federal (appropriated) funds for lobbying the Executive or Legislative Branches of the Federal Government in connection with a specific grant or cooperative agreement.
Section 1352 also requires that each person who requests or receives a Federal grant or cooperative agreement must file a certification that the person has not made, and will not make, any prohibited payment and requires a disclosure form for each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative agreement if such person has made or has agreed to make any payment using nonappropriated funds (to include profits from any covered Federal action). These requirements apply to grants and cooperative agreements exceeding $100,000 and/or Federal loans or commitments providing for the United States to insure or guarantee a loan exceeding $150,000 in total costs. DHHS regulations implementing Section 1352 are provided in 45 CFR Part 93, "New Restrictions on Lobbying."
The required certification statement is included in Appendix A to Part 93 and the Disclosure Form is included in Appendix B.
OMB provides a "fillable" Disclosure Form: Standard Form LLL
The federal government regulates the export of certain goods and technologies and restricts exports to certain countries, companies, organizations, or individuals to promote national security interests and foreign policy objectives. These interests and objectives include:
- Providing for national security by limiting access to the most sensitive U.S. technology and weapons;
- Promoting regional stability
- Taking into account human rights considerations
- Preventing proliferation of weapons and technologies, including of weapons of mass destruction, to problem end-users and supporters of international terrorism
- Complying with international commitments, i.e. nonproliferation regimes and UN Security Council sanctions and UNSC resolution 1540
- Restricting exports of goods and technology that could contribute to the military potential of adversaries
- Protecting economy and complying with trade agreements
- Advancing U.S. foreign policy goals
The above restrictions are enforced primarily by the Department of State through its International Traffic in Arms Regulations (ITAR), 22 CFR 120-130; the Department of Commerce through its Export Administration Regulations (EAR), 15 CFR 730-774; and the Department of Treasury through its Office of Foreign Assets Control (OFAC), 31 CFR 500-598.
Although EAR, ITAR and OFAC regulations are the most commonly referenced regulations, they are only part of a very a complex and ever-changing area of the law. Due to the complexities of manual searches throughout the government's constantly-changing regulations and lists, USF has joined with the other Florida SUS Universities to license and use eCustoms, Visual Compliance for Export Control review of sponsored projects.
Universities are not exempt from these regulations, although in certain circumstances universities may fall within important exemptions and exclusions to the regulations.
Export Control Guidelines for sponsored research projects at the University of South Florida are a joint effort between the Office of the General Counsel and Sponsored Research.
Sponsored Research will assist the PI in reviewing and in assessing the applicability of the export control regulations in his or her research project; however, primary compliance responsibility rests with the PI of the contract or grant. The PI must continually reevaluate this determination to assess for addition of new research staff and/or change of scope of work.
Sponsored Research Export Control Procedures:
Review ALL proposals/awards using the Export Control Review Form
Complete Part A: Award/Proposal Review
Note: A positive response to:
- questions 1-5 indicate risks toward claiming export control exemption/exceptions
- questions 1-3 will not allow this project to claim the Fundamental Research Exclusion (FRE)
- question 5 may risk the claim for FRE.
- questions 4, 6 and 7 are triggers indicating the possibility that this project will need an export control license.
If the answer to any of the questions (1-7) is "yes", the Sponsored Research Administrator (SRA) should assist the PI in completing the Technical Review, (Part B) of the Export Control Review Form and consult the USF Office of General Counsel, as appropriate.
To perform the Technical Review, the SRA should logon to eCustoms, Visual Compliance to search the export-relevant regulations and lists to obtain the necessary category name and section information.
If the review indicates that the research falls into one of the categories designated as export controlled, Sponsored Research will notify the Vice President for Research & Innovation and the appropriate dean and department chair or research center director of such determination.
These parties will then collaborate, along with the PI, and as necessary with the Office of the General Counsel, to implement a response to this determination that satisfies the requirements of the export control regulations. Such response may include a decision to forego the research opportunity in view of the possible burdens or restrictions associated with compliance with the regulations.
No work under a contract or grant, or proposed contract or grant, can begin until this process has been completed.
PI Export Control Procedures:
If Sponsored Research determines that the sponsored research award document for the project contains provisions that may require University compliance with export control laws and regulations. The PI will be required to certify the completion of the Technical Review (Part B) of the Export Control Review Form as a final determination.
With the Sponsored Research Administrator (SRA), the PI should review the descriptions of controlled goods and technologies, as well as export restrictions and restricted or denied party lists using the eCustoms, Visual Compliance searchable databases.
Principal Investigators reviewing NASA-funded projects are encouraged to use the NASA Export Processing Template (NASA/EPT) , which is also used by your NASA technical counterpart.
If the review indicates that the research falls into one of the categories designated as export controlled, the PI should collaborate with his or her dean, department chair or research center director, Vice President for Research & Innovation and as necessary, the Office of the General Counsel, to implement a response to this determination that satisfies the requirements of the export control regulations. Such response may include a decision to forego the research opportunity in view of the possible burdens or restrictions associated with compliance with the regulations.
No work under a contract or grant, or proposed contract or grant can begin until this process is complete.
Violations of these export control regulations can result in the loss of research contracts and monetary fines to USF and individual fines and incarceration for researchers.
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