CONTRACT PROVISIONS TEMPLATE
FEMA Office of Chief Counsel
Procurement Disaster Assistance Team
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 2 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
INTRODUCTION
If a non-Federal entity (state or non-state) wants to use federal funds to pay or reimburse their
expenses for equipment or services under a contract, that contract must contain the applicable
clauses described in Appendix II to the Uniform Rules (Contract Provisions for Non-Federal
Entity Contracts Under Federal Awards) under 2 C.F.R. § 200.326. In addition, there are certain
contract clauses which are recommended by FEMA.
This document outlines the federally required contract provisions in addition to FEMA-
recommended provisions.
• For some of the required clauses, sample language or references to find sample
language are provided.
• Sample language for certain required clauses (remedies, termination for cause and
convenience, changes) is not provided since these must be drafted in accordance with
the non-Federal entity’s applicable local laws and procedures.
• For the clauses which require that exact language be included, the required language is
provided. Those clauses are specifically identified below.
Please note that the non-Federal entity alone is responsible for ensuring that all language
included in their contracts meets the requirements of 2 C.F.R. § 200.326 and 2 C.F.R. Part 200,
Appendix II.
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 3 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
TABLE OF CONTENTS
I. TOOLS
1. CONTRACT PROVISIONS QUICK REFERENCE GUIDE ............................................... 4
II. REQUIRED CONTRACT PROVISIONS
1. REMEDIES ................................................................................................................ 6
2. TERMINATION FOR CAUSE AND CONVENIENCE ..................................................... 6
3. EQUAL EMPLOYMENT OPPORTUNITY .................................................................... 6
4. DAVIS BACON ACT ................................................................................................. 10
5. COPELAND ANTI-KICKBACK ACT ........................................................................... 11
6. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT .................................... 13
7. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT… ............ 14
8. CLEAN AIR ACT AND THE FEDERAL WATER POLLUTION CONTROL ACT… ........... 15
9. DEBARMENT AND SUSPENSION .......................................................................... 16
10. BYRD ANTI-LOBBYING AMENDMENT ................................................................... 18
11. PROCUREMENT OF RECOVERED MATERIALS ...................................................... 21
III. FEMA-RECOMMENDED CONTRACT PROVISIONS
1. ACCESS TO RECORDS ............................................................................................ 22
2. CHANGES/MODIFICATIONS ................................................................................. 23
3. NON-USE OF DHS SEAL, LOGO, AND FLAGS ......................................................... 23
4. COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND EXECUTIVE ORDERS ... 24
5. NO OBLIGATION BY THE FEDERAL GOVERNMENT .............................................. 24
6. PROGRAM FRAUD AND FALSE/FRADULENT STATEMENTS OR RELATED ACTS .... 25
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 4 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
Required Contract Provisions: Quick Reference Guide
KEY
Required/Recommended Provision
Required/Recommended Provision and Required Exact Language
Not Required for PA Awards (Grants)
Contract Criteria
Sample Language?
1.
> Simplified Acquisition
Threshold ($250k)
No. It is based on applicant’s
procedures.
2.
> $10k
No. It is based on applicant’s
procedures.
3.
Construction work
Yes. 41 CFR Part 60-1.4(b)
4.
Construction work
Not applicable to PA grants
5.
Construction work > $2k
Not applicable to PA grants
6.
> $100k + mechanics or
laborers
Yes. 29 CFR 5.5(b)
7.
Funding agreement
Not applicable to PA grants
8.
>$150k
Yes
9.
All
Yes
10.
All
(>$100k: Certification)
Yes. Clause and certification
11.
Applicant is a state or
political subdivision of a
state. Work involves the use
of materials.
Yes
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 5 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
Recommended Contract Provisions: Quick Reference Guide
Recommended Provision
Contract Criteria
Sample Language?
1.
Access to Records
All
Yes
2.
Contract Changes or
Modifications
All
No. It depends on nature of contract
and end-item procured.
3.
DHS Seal, Logo, and Flags
All
Yes
4.
Compliance with Federal Law,
Regulations and Executive Orders
All
Yes
5.
No Obligation by Federal
Government
All
Yes
6.
Program Fraud and False or
Fraudulent Statements or Related
Acts
All
Yes
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 6 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
REQUIRED CONTRACT PROVISIONS
1. REMEDIES
a. Standard. Contracts for more than the simplified acquisition threshold,
currently set at $250,000, must address administrative, contractual, or legal
remedies in instances where contractors violate or breach contract terms, and
provide for such sanctions and penalties as appropriate. See 2 C.F.R. Part 200,
Appendix II(A).
b. Applicability. This requirement applies to all FEMA grant and cooperative
agreement programs.
2. TERMINATION FOR CAUSE AND CONVENIENCE
a. Standard. All contracts in excess of $10,000 must address termination for cause
and for convenience by the non-Federal entity, including the manner by which it
will be effected and the basis for settlement. See 2 C.F.R. Part 200, Appendix
II(B).
b. Applicability. This requirement applies to all FEMA grant and cooperative
agreement programs.
3. EQUAL EMPLOYMENT OPPORTUNITY
If applicable, exact language below in subsection 3.d is required.
a. Standard. Except as otherwise provided under 41 C.F.R. Part 60, all contracts
that meet the definition of “federally assisted construction contract” in 41 C.F.R.
§ 60-1.3 must include the equal opportunity clause provided under 41 C.F.R. §
60- 1.4(b), in accordance with Executive Order 11246, Equal Employment
Opportunity (30 Fed. Reg. 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p.
339), as amended by Executive Order 11375, Amending Executive Order 11246
Relating to Equal Employment Opportunity, and implementing regulations at 41
C.F.R. Part 60 (Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor). See 2 C.F.R. Part 200,
Appendix II(C).
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 7 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
b. Key Definitions.
i. Federally Assisted Construction Contract. The regulation at 41 C.F.R. § 60-
1.3 defines a “federally assisted construction contract” as any agreement
or modification thereof between any applicant and a person for
construction work which is paid for in whole or in part with funds
obtained from the Government or borrowed on the credit of the
Government pursuant to any Federal program involving a grant, contract,
loan, insurance, or guarantee, or undertaken pursuant to any Federal
program involving such grant, contract, loan, insurance, or guarantee, or
any application or modification thereof approved by the Government for
a grant, contract, loan, insurance, or guarantee under which the applicant
itself participates in the construction work.
ii. Construction Work. The regulation at 41 C.F.R. § 60-1.3 defines
“construction work” as the construction, rehabilitation, alteration,
conversion, extension, demolition or repair of buildings, highways, or
other changes or improvements to real property, including facilities
providing utility services. The term also includes the supervision,
inspection, and other onsite functions incidental to the actual
construction.
c. Applicability. This requirement applies to all FEMA grant and cooperative
agreement programs.
d. Required Language. The regulation at 41 C.F.R. Part 60-1.4(b) requires the
insertion of the following contract clause.
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, gender
identity, or national origin. The contractor will take affirmative action to ensure
that applicants are employed, and that employees are treated during
employment without regard to their race, color, religion, sex, sexual
orientation, gender identity, or national origin. Such action shall include, but
not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. The contractor agrees to
post in conspicuous places, available to employees and applicants for
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 8 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
employment, notices to be provided setting forth the provisions of this
nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees
placed by or on behalf of the contractor, state that all qualified applicants will
receive consideration for employment without regard to race, color, religion,
sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate
against any employee or applicant for employment because such employee or
applicant has inquired about, discussed, or disclosed the compensation of the
employee or applicant or another employee or applicant. This provision shall
not apply to instances in which an employee who has access to the
compensation information of other employees or applicants as a part of such
employee's essential job functions discloses the compensation of such other
employees or applicants to individuals who do not otherwise have access to
such information, unless such disclosure is in response to a formal complaint or
charge, in furtherance of an investigation, proceeding, hearing, or action,
including an investigation conducted by the employer, or is consistent with the
contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers
with which he has a collective bargaining agreement or other contract or
understanding, a notice to be provided advising the said labor union or
workers' representatives of the contractor's commitments under this section,
and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the
Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive
Order 11246 of September 24, 1965, and by rules, regulations, and orders of
the Secretary of Labor, or pursuant thereto, and will permit access to his books,
records, and accounts by the administering agency and the Secretary of Labor
for purposes of investigation to ascertain compliance with such rules,
regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination
clauses of this contract or with any of the said rules, regulations, or orders, this
contract may be canceled, terminated, or suspended in whole or in part and
the contractor may be declared ineligible for further Government contracts or
federally assisted construction contracts in accordance with procedures
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 9 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
authorized in Executive Order 11246 of September 24, 1965, and such other
sanctions may be imposed and remedies invoked as provided in Executive
Order 11246 of September 24, 1965, or by rule, regulation, or order of the
Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately
preceding paragraph (1) and the provisions of paragraphs (1) through (8) in
every subcontract or purchase order unless exempted by rules, regulations, or
orders of the Secretary of Labor issued pursuant to section 204 of Executive
Order 11246 of September 24, 1965, so that such provisions will be binding
upon each subcontractor or vendor. The contractor will take such action with
respect to any subcontract or purchase order as the administering agency may
direct as a means of enforcing such provisions, including sanctions for
noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such
direction by the administering agency, the contractor may request the United
States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal
opportunity clause with respect to its own employment practices when it
participates in federally assisted construction work: Provided, That if the
applicant so participating is a State or local government, the above equal
opportunity clause is not applicable to any agency, instrumentality or
subdivision of such government which does not participate in work on or under
the contract.
The applicant agrees that it will assist and cooperate actively with the
administering agency and the Secretary of Labor in obtaining the compliance of
contractors and subcontractors with the equal opportunity clause and the
rules, regulations, and relevant orders of the Secretary of Labor, that it will
furnish the administering agency and the Secretary of Labor such information
as they may require for the supervision of such compliance, and that it will
otherwise assist the administering agency in the discharge of the agency's
primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract
or contract modification subject to Executive Order 11246 of September 24,
1965, with a contractor debarred from, or who has not demonstrated eligibility
for, Government contracts and federally assisted construction contracts
pursuant to the Executive Order and will carry out such sanctions and penalties
for violation of the equal opportunity clause as may be imposed upon
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 10 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
contractors and subcontractors by the administering agency or the Secretary of
Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the
applicant agrees that if it fails or refuses to comply with these undertakings, the
administering agency may take any or all of the following actions: Cancel,
terminate, or suspend in whole or in part this grant (contract, loan, insurance,
guarantee); refrain from extending any further assistance to the applicant
under the program with respect to which the failure or refund occurred until
satisfactory assurance of future compliance has been received from such
applicant; and refer the case to the Department of Justice for appropriate legal
proceedings.
4. DAVIS-BACON ACT
a. Standard. All prime construction contracts in excess of $2,000 awarded by non-
Federal entities must include a provision for compliance with the Davis-Bacon Act
(40 U.S.C. §§ 3141-3144 and 3146-3148) as supplemented by Department of Labor
regulations at 29 C.F.R. Part 5 (Labor Standards Provisions Applicable to Contracts
Covering Federally Financed and Assisted Construction). See 2 C.F.R. Part 200,
Appendix II(D). In accordance with the statute, contractors must be required to
pay wages to laborers and mechanics at a rate not less than the prevailing wages
specified in a wage determination made by the Secretary of Labor. In addition,
contractors must be required to pay wages not less than once a week.
b. Applicability. The Davis-Bacon Act only applies to the Emergency Management
Preparedness Grant Program, Homeland Security Grant Program, Nonprofit Security
Grant Program, Tribal Homeland Security Grant Program, Port Security Grant
Program, and Transit Security Grant Program. It DOES NOT apply to other FEMA
grant and cooperative agreement programs, including the Public Assistance
Program.
c. Requirements. If applicable, the non-federal entity must do the following:
i. The non-Federal entity must place a copy of the current prevailing wage
determination issued by the Department of Labor in each solicitation.
The decision to award a contract or subcontract must be conditioned
upon the acceptance of the wage determination. The non-Federal entity
must report all suspected or reported violations to the Federal awarding
agency.
ii. Additionally, pursuant 2 C.F.R. Part 200, Appendix II(D), contracts subject
to the Davis-Bacon Act, must also include a provision for compliance with
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 11 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by
Department of Labor regulations at 29 C.F.R. Part 3 (Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in
Part by Loans or Grants from the United States). The Copeland Anti-
Kickback Act provides that each contractor or subrecipient must be
prohibited from inducing, by any means, any person employed in the
construction, completion, or repair of public work, to give up any part of
the compensation to which he or she is otherwise entitled. The non-
Federal entity must report all suspected or reported violations to FEMA.
iii. Include a provision for compliance with the Davis-Bacon Act (40 U.S.C.
3141-3144, and 3146-3148) as supplemented by Department of Labor
regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to
Contracts Covering Federally Financed and Assisted Construction”).
Suggested Language. The following provides a sample contract clause:
Compliance with the Davis-Bacon Act.
a. All transactions regarding this contract shall be done in
compliance with the Davis-Bacon Act (40 U.S.C. 3141-
3144, and 3146-3148) and the requirements of 29 C.F.R.
pt. 5 as may be applicable. The contractor shall comply
with 40 U.S.C. 3141-3144, and 3146-3148 and the
requirements of 29 C.F.R. pt. 5 as applicable.
b. Contractors are required to pay wages to laborers and
mechanics at a rate not less than the prevailing wages
specified in a wage determination made by the
Secretary of Labor.
c. Additionally, contractors are required to pay wages not
less than once a week.
5. COPELAND ANTI-KICKBACK ACT
a. Standard. Recipient and subrecipient contracts must include a provision for
compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as
supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in Part by
Loans or Grants from the United States”).
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 12 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
b. Applicability. This requirement applies to all contracts for construction or repair
work above $2,000 in situations where the Davis-Bacon Act also applies. It DOES
NOT apply to the FEMA Public Assistance Program.
c. Requirements. If applicable, the non-federal entity must include a provision for
compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as
supplemented by Department of Labor regulations at 29 C.F.R. Part 3 (Contractors
and Subcontractors on Public Building or Public Work Financed in Whole or in Part
by Loans or Grants from the United States). Each contractor or subrecipient must be
prohibited from inducing, by any means, any person employed in the construction,
completion, or repair of public work, to give up any part of the compensation to
which he or she is otherwise entitled. The non-Federal entity must report all
suspected or reported violations to FEMA. Additionally, in accordance with the
regulation, each contractor and subcontractor must furnish each week a statement
with respect to the wages paid each of its employees engaged in work covered by
the Copeland Anti-Kickback Act and the Davis Bacon Act during the preceding
weekly payroll period. The report shall be delivered by the contractor or
subcontractor, within seven days after the regular payment date of the payroll
period, to a representative of a Federal or State agency in charge at the site of the
building or work.
Sample Language. The following provides a sample contract clause:
Compliance with the Copeland “Anti-Kickback” Act.
a. Contractor. The contractor shall comply with 18 U.S.C. § 874,
40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as
may be applicable, which are incorporated by reference into
this contract.
b. Subcontracts. The contractor or subcontractor shall insert in
any subcontracts the clause above and such other clauses as
FEMA may by appropriate instructions require, and also a
clause requiring the subcontractors to include these clauses
in any lower tier subcontracts. The prime contractor shall be
responsible for the compliance by any subcontractor or lower
tier subcontractor with all of these contract clauses.
c. Breach. A breach of the contract clauses above may be
grounds for termination of the contract, and for debarment
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 13 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
as a contractor and subcontractor as provided in 29 C.F.R. §
5.12.”
6. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
a. Standard. Where applicable (see 40 U.S.C. §§ 3701-3708), all contracts awarded
by the non-Federal entity in excess of $100,000 that involve the employment of
mechanics or laborers must include a provision for compliance with 40 U.S.C. §§
3702 and 3704, as supplemented by Department of Labor regulations at 29
C.F.R. Part 5. See 2 C.F.R. Part 200, Appendix II(E). Under 40 U.S.C. § 3702, each
contractor must be required to compute the wages of every mechanic and
laborer on the basis of a standard work week of 40 hours. Work in excess of the
standard work week is permissible provided that the worker is compensated at
a rate of not less than one and a half times the basic rate of pay for all hours
worked in excess of 40 hours in the work week. Further, no laborer or mechanic
must be required to work in surroundings or under working conditions which
are unsanitary, hazardous, or dangerous.
b. Applicability. This requirement applies to all FEMA contracts awarded by the non-
federal entity in excess of $100,000 under grant and cooperative agreement
programs that involve the employment of mechanics or laborers. It is
applicable to construction work. These requirements do not apply to the
purchase of supplies or materials or articles ordinarily available on the open
market, or contracts for transportation or transmission of intelligence.
c. Suggested Language. The regulation at 29 C.F.R. § 5.5(b) provides contract
clause language concerning compliance with the Contract Work Hours and
Safety Standards Act. FEMA suggests including the following contract clause:
Compliance with the Contract Work Hours and Safety Standards Act.
(1) Overtime requirements. No contractor or subcontractor contracting for any
part of the contract work which may require or involve the employment of
laborers or mechanics shall require or permit any such laborer or mechanic in
any workweek in which he or she is employed on such work to work in excess
of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of
pay for all hours worked in excess of forty hours in such workweek.
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 14 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any
violation of the clause set forth in paragraph (b)(1) of this section the
contractor and any subcontractor responsible therefor shall be liable for the
unpaid wages. In addition, such contractor and subcontractor shall be liable to
the United States (in the case of work done under contract for the District of
Columbia or a territory, to such District or to such territory), for liquidated
damages. Such liquidated damages shall be computed with respect to each
individual laborer or mechanic, including watchmen and guards, employed in
violation of the clause set forth in paragraph (b)(1) of this section, in the sum of
$27 for each calendar day on which such individual was required or permitted
to work in excess of the standard workweek of forty hours without payment of
the overtime wages required by the clause set forth in paragraph (b)(1) of this
section.
(3) Withholding for unpaid wages and liquidated damages. The (write in the
name of the Federal agency or the loan or grant recipient) shall upon its own
action or upon written request of an authorized representative of the
Department of Labor withhold or cause to be withheld, from any moneys
payable on account of work performed by the contractor or subcontractor
under any such contract or any other Federal contract with the same prime
contractor, or any other federally-assisted contract subject to the Contract
Work Hours and Safety Standards Act, which is held by the same prime
contractor, such sums as may be determined to be necessary to satisfy any
liabilities of such contractor or subcontractor for unpaid wages and liquidated
damages as provided in the clause set forth in paragraph (b)(2) of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any
subcontracts the clauses set forth in paragraph (b)(1) through (4) of this section
and also a clause requiring the subcontractors to include these clauses in any
lower tier subcontracts. The prime contractor shall be responsible for
compliance by any subcontractor or lower tier subcontractor with the clauses
set forth in paragraphs (b)(1) through (4) of this section.
7. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT
a. Standard. If the FEMA award meets the definition of “funding agreement”
under 37C.F.R. § 401.2(a) and the non-Federal entity wishes to enter into a
contract with a small business firm or nonprofit organization regarding the
substitution of parties, assignment or performance of experimental,
developmental, or research work under that “funding agreement,” the non-
Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights
to Inventions Made by Nonprofit Organizations and Small Business Firms Under
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 15 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
Government Grants, Contracts and Cooperative Agreements), and any
implementing regulations issued by FEMA. See 2 C.F.R. Part 200, Appendix
II(F).
b. Applicability. This requirement applies to “funding agreements,” but it DOES
NOT apply to the Public Assistance, Hazard Mitigation Grant Program, Fire
Management Assistance Grant Program, Crisis Counseling Assistance and
Training Grant Program, Disaster Case Management Grant Program, and Federal
Assistance to Individuals and Households – Other Needs Assistance Grant
Program, as FEMA awards under these programs do not meet the definition of
“fundingagreement.”
c. Funding Agreements Definition. The regulation at 37 C.F.R. § 401.2(a) defines
“funding agreement” as any contract, grant, or cooperative agreement entered
into between any Federal agency, other than the Tennessee Valley Authority,
and any contractor for the performance of experimental, developmental, or
research work funded in whole or in part by the Federal government. This term
also includes any assignment, substitution of parties, or subcontract of any type
entered into for the performance of experimental, developmental, or research
work under a funding agreement as defined in the first sentence of this
paragraph.
8. CLEAN AIR ACT AND THE FEDERAL WATER POLLUTION CONTROL ACT
a. Standard. If applicable, contracts must contain a provision that requires the
contractor to agree to comply with all applicable standards, orders, or
regulations issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401-7671q.) and
the Federal Water Pollution Control Act as amended (33 U.S.C. §§ 1251-1387).
Violations must be reported to FEMA and the Regional Office of the
Environmental Protection Agency. See 2 C.F.R. Part 200, Appendix II(G).
b. Applicability. This requirement applies to contracts awarded by a non-federal
entity of amounts in excess of $150,000 under a federal grant.
c. Suggested Language. The following provides a sample contract clause.
Clean Air Act
1. The contractor agrees to comply with all applicable standards,
orders or regulations issued pursuant to the Clean Air Act, as
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 16 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
amended, 42 U.S.C. § 7401 et seq.
2. The contractor agrees to report each violation to the (name of
applicant entering into the contract) and understands and
agrees that the (name of the applicant entering into the
contract) will, in turn, report each violation as required to
assure notification to the Federal Emergency Management
Agency, and the appropriate Environmental Protection Agency
Regional Office.
3. The contractor agrees to include these requirements in each
subcontract exceeding $150,000 financed in whole or in part
with Federal assistance provided by FEMA.
Federal Water Pollution Control Act
1. The contractor agrees to comply with all applicable standards,
orders, or regulations issued pursuant to the Federal Water
Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.
2. The contractor agrees to report each violation to the (name of
the applicant entering into the contract) and understands and
agrees that the (name of the applicant entering into the
contract) will, in turn, report each violation as required to
assure notification to the Federal Emergency Management
Agency, and the appropriate Environmental Protection Agency
Regional Office.
3. The contractor agrees to include these requirements in each
subcontract exceeding $150,000 financed in whole or in part
with Federal assistance provided by FEMA.
9. DEBARMENT AND SUSPENSION
a. Standard. Non-Federal entities and contractors are subject to the debarment
and suspension regulations implementing Executive Order 12549, Debarment
and Suspension (1986) and Executive Order 12689, Debarment and Suspension
(1989) at 2 C.F.R. Part 180 and the Department of Homeland Security’s
regulations at 2 C.F.R. Part 3000 (Nonprocurement Debarment and Suspension).
b. Applicability. This requirement applies to all FEMA grant and cooperative
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 17 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
agreement programs.
c. Requirements.
i. These regulations restrict awards, subawards, and contracts with certain
parties that are debarred, suspended, or otherwise excluded from or
ineligible for participation in Federal assistance programs and activities.
See 2 C.F.R. Part 200, Appendix II(H); and 2 C.F.R. § 200.213. A contract
award must not be made to parties listed in the SAM Exclusions. SAM
Exclusions is the list maintained by the General Services Administration
that contains the names of parties debarred, suspended, or otherwise
excluded by agencies, as well as parties declared ineligible under
statutory or regulatory authority other than Executive Order 12549. SAM
exclusions can be accessed at www.sam.gov. See 2 C.F.R. § 180.530.
ii. In general, an “excluded” party cannot receive a Federal grant award or a
contract within the meaning of a “covered transaction,” to include
subawards and subcontracts. This includes parties that receive Federal
funding indirectly, such as contractors to recipients and subrecipients.
The key to the exclusion is whether there is a “covered transaction,”
which is any nonprocurement transaction (unless excepted) at either a
“primary” or “secondary” tier. Although“covered transactions” do not
include contracts awarded by the Federal Government for purposes of
the nonprocurement common rule and DHS’s implementing regulations,
it does include some contracts awarded by recipients and subrecipients.
iii. Specifically, a covered transaction includes the following contracts for
goods or services:
1. The contract is awarded by a recipient or subrecipient in the
amount of at least $25,000.
2. The contract requires the approval of FEMA, regardless of
amount.
3. The contract is for federally-required audit services.
4. A subcontract is also a covered transaction if it is awarded by
the contractor of a recipient or subrecipient and requires either
the approval of FEMA or is in excess of $25,000.
d. Suggested Language. The following provides a debarment and suspension
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 18 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
clause. It incorporates an optional method of verifying that contractors are not
excluded or disqualified.
Suspension and Debarment
(1)
This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and
2 C.F.R. pt. 3000. As such, the contractor is required to verify that none of
the contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates
(defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940)
or disqualified (defined at 2 C.F.R. § 180.935).
(2)
The contractor must comply with 2 C.F.R. pt. 180, subpart C and2 C.F.R.
pt. 3000, subpart C, and must include a requirement to comply with these
regulations in any lower tier covered transaction it enters into.
(3)
This certification is a material representation of fact relied upon by (insert
name of recipient/subrecipient/applicant). If it is later determined that
the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R.
pt. 3000, subpart C, in addition to remedies available to (insert name of
recipient/subrecipient/applicant), the Federal Government may pursue
available remedies, including but not limited to suspension and/or
debarment.
(4)
The bidder or proposer agrees to comply with the requirements of2 C.F.R.
pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid
and throughout the period of any contract that may arise from this offer.
The bidder or proposer further agrees to include a provision requiring
such compliance in its lower tier covered transactions.
10. BYRD ANTI-LOBBYING AMENDMENT
a. Standard. Each tier certifies to the tier above that it will not and has not used
Federal appropriated funds to pay any person or organization for influencing or
attempting to influence an officer or employee of any agency, a Member of
Congress, officer or employee of Congress, or an employee of a Member of
Congress in connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. § 1352. FEMA’s regulation at 44 C.F.R. Part 18
implements the requirements of 31 U.S.C. § 1352 and provides, in Appendix A
to Part 18, a copy of the certification that is required to be completed by each
entity as described in 31 U.S.C. § 1352. Each tier must also disclose any lobbying
with non-Federal funds that takes place in connection with obtaining any
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 19 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
Federal award. Such disclosures are forwarded from tier to tier up to the
Federal awarding agency.
b. Applicability. This requirement applies to all FEMA grant and cooperative
agreement programs. Contractors that apply or bid for a contract of $100,000
or more under a federal grant must file the required certification. See 2 C.F.R.
Part 200, Appendix II(I); 31 U.S.C. § 1352; and 44 C.F.R. Part 18.
c. Suggested Language.
Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended)
Contractors who apply or bid for an award of $100,000 or more shall file the
required certification. Each tier certifies to the tier above that it will not and
has not used Federal appropriated funds to pay any person or organization for
influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, officer or employee of Congress, or an employee of a
Member of Congress in connection with obtaining any Federal contract, grant,
or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose
any lobbying with non-Federal funds that takes place in connection with
obtaining any Federal award. Such disclosures are forwarded from tier to tier
up to the recipient who in turn will forward the certification(s) to the awarding
agency.
d. Required Certification. If applicable, contractors must sign and submit to the
non-federal entity the following certification.
APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of an agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal contract, the making of any
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 20 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or
cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer
or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with
this Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form-LLL, “Disclosure
Form to Report Lobbying,” in accordance with its instructions.
3. The undersigned shall require that the language of this certification be
included in the award documents for all subawards at all tiers (including
subcontracts, subgrants, and contracts under grants, loans, and cooperative
agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction
imposed by section 1352, title 31, U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than $10,000
and not more than $100,000 for each such failure.
The Contractor, , certifies or affirms the truthfulness and
accuracyof each statement of its certification and disclosure, if any. In addition,
the Contractor understands and agrees that the provisions of 31 U.S.C. Chap.
38, Administrative Remedies for False Claims and Statements, apply to this
certification and disclosure, if any.
Signature of Contractor’s Authorized Official
Name and Title of Contractor’s Authorized Official
Date
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 21 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
11. PROCUREMENT OF RECOVERED MATERIALS
a. Standard. A non-Federal entity that is a state agency or agency of a political
subdivision of a state and its contractors must comply with Section 6002 of the
Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act. See 2 C.F.R. Part 200, Appendix II(J); and 2 C.F.R. § 200.322.
b. Applicability. This requirement applies to all contracts awarded by a non-
federal entity under FEMA grant and cooperative agreement programs.
c. Requirements. The requirements of Section 6002 include procuring only items
designated in guidelines of the EPA at 40 C.F.R. Part 247 that contain the highest
percentage of recovered materials practicable, consistent with maintaining a
satisfactory level of competition, where the purchase price of the item exceeds
$10,000 or the value of the quantity acquired by the preceding fiscal year
exceeded $10,000; procuring solid waste management services in a manner that
maximizes energy and resource recovery; and establishing an affirmative
procurement program for procurement of recovered materials identified in the
EPA guidelines.
d. Suggested Language.
i. In the performance of this contract, the Contractor shall make maximum
use of products containing recovered materials that are EPA-designated
items unless the product cannot be acquired—
1. Competitively within a timeframe providing forcompliance
with the contract performance schedule;
2. Meeting contract performance requirements; or
3. At a reasonable price.
ii. Information about this requirement, along with the list of EPA-
designated items, is available at EPA’s Comprehensive Procurement
Guidelines web site, https://www.epa.gov/smm/comprehensive-
procurement-guideline-cpg-program.
iii. The Contractor also agrees to comply with all other applicable
requirements of Section 6002 of the Solid Waste Disposal Act.”
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 22 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
RECOMMENDED CONTRACT PROVISIONS
The Uniform Rules authorize FEMA to require additional provisions for non-Federal entity
contracts. Although FEMA does not currently require additional provisions, FEMA recommends
the following:
1.
ACCESS TO RECORDS
a. Standard. All recipients, subrecipients, successors, transferees, and assignees
must acknowledge and agree to comply with applicable provisions governing
DHS access to records, accounts, documents, information, facilities, and staff.
Recipients must give DHS/FEMA access to, and the right to examine and copy,
records, accounts, and other documents and sources of information related to
the federal financial assistance award and permit access to facilities, personnel,
and other individuals and information as may be necessary, as required by DHS
regulations and other applicable laws or program guidance. See DHS Standard
Terms and Conditions: Version 8.1 (2018). Additionally, Section 1225 of the
Disaster Recovery Reform Act of 2018 prohibits FEMA from providing
reimbursement to any state, local, tribal, or territorial government, or private
non-profit for activities made pursuant to a contract that purports to prohibit
audits or internal reviews by the FEMA administrator or Comptroller General.
b. Suggested Language.
Access to Records. The following access to records requirements apply to this
contract:
(1)
The Contractor agrees to provide (insert name of state agency or
local or Indian tribal government), (insert name of recipient), the
FEMA Administrator, the Comptroller General of the United States,
or any of their authorized representatives access to any books,
documents, papers, and records of the Contractor which are directly
pertinent to this contract for the purposes of making audits,
examinations, excerpts, and transcriptions.
(2)
The Contractor agrees to permit any of the foregoing parties to
reproduce by any means whatsoever or to copy excerpts and
transcriptions as reasonably needed.
(3)
The Contractor agrees to provide the FEMA Administrator or
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 23 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
his authorized representatives access to construction or other
work sites pertaining to the work being completed under the
contract.
(4)
In compliance with the Disaster Recovery Act of 2018, the
(write in name of the non-federal entity) and the Contractor
acknowledge and agree that no language in this contract is
intended to prohibit audits or internal reviews by the FEMA
Administrator or the Comptroller General of the United States.
2.
CHANGES
a. Standard. To be eligible for FEMA assistance under the non-Federal entity’s
FEMA grant or cooperative agreement, the cost of the change, modification,
change order, or constructive change must be allowable, allocable, within the
scope of its grant or cooperative agreement, and reasonable for the completion
of project scope.
b. Applicability. FEMA recommends, therefore, that a non-Federal entity include a
changes clause in its contract that describes how, if at all, changes can be made
by either party to alter the method, price, or schedule of the work without
breaching the contract. The language of the clause may differ depending on the
nature of the contract and the end-item procured.
3.
DHS SEAL, LOGO, AND FLAGS
a. Standard. Recipients must obtain permission prior to using the DHS seal(s),
logos, crests, or reproductions of flags or likenesses of DHS agency officials. See
DHS Standard Terms and Conditions: Version 8.1 (2018).
b. Applicability. FEMA recommends that all non-Federal entities place in their
contracts a provision that a contractor shall not use the DHS seal(s), logos,
crests, or reproductions of flags or likenesses of DHS agency officials without
specific FEMA pre-approval.
c. Suggested Language.
“The contractor shall not use the DHS seal(s), logos, crests, or reproductions of
flags or likenesses of DHS agency officials without specific FEMA pre-approval.”
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 24 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
4.
COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND EXECUTIVE ORDERS
a. Standard. The recipient and its contractors are required to comply with all
Federal laws, regulations, and executive orders.
b. Applicability. FEMA recommends that all non-Federal entities place into their
contracts an acknowledgement that FEMA financial assistance will be used to
fund the contract along with the requirement that the contractor will comply
with all applicable Federal law, regulations, executive orders, and FEMA
policies, procedures, anddirectives.
c. Suggested Language.
“This is an acknowledgement that FEMA financial assistance will be used to
fund all or a portion of the contract. The contractor will comply with all
applicable Federal law, regulations, executive orders, FEMA policies,
procedures, and directives.”
5.
NO OBLIGATION BY FEDERAL GOVERNMENT
a. Standard. FEMA is not a party to any transaction between the recipient and its
contractor. FEMA is not subject to any obligations or liable to any party for any
matter relating to the contract.
b. Applicability. FEMA recommends that the non-Federal entity include a provision
in its contract that states that the Federal Government is not a party to the
contract and is not subject to any obligations or liabilities to the non-Federal
entity, contractor, or any other party pertaining to any matter resulting from
the contract.
c. Suggested Language.
“The Federal Government is not a party to this contract and is not subject to
any obligations or liabilities to the non-Federal entity, contractor, orany other
party pertaining to any matter resulting from thecontract.”
6.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS
a. Standard. Recipients must comply with the requirements of The False Claims
Act (31 U.S.C. §§ 3729-3733) which prohibits the submission of false or
U. S. Department of Homeland Security
Headquarters
500 C St SW
Washington, D.C. 20042
Page 25 of 25
www.fema.gov/procurement-disaster-assistance-team
To Table of Contents
fraudulent claims for payment to the federal government. See DHS Standard
Terms and Conditions: Version 8.1 (2018); and 31 U.S.C. §§ 3801-3812, which
details the administrative remedies for false claims and statements made. The
non-Federal entity must include a provision in its contract that the contractor
acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims
and Statements) applies to its actions pertaining to thecontract.
b. Applicability. FEMA recommends that the non-Federal entity include a
provision in its contract that the contractor acknowledges that 31 U.S.C. Chap.
38 (Administrative Remedies for False Claims and Statements) applies to its
actions pertaining to the contract.
c. Suggested Language.
“The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative
Remedies for False Claims and Statements) applies to the Contractor’s actions
pertaining to this contract.”