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FEBRUARY 3, 2000

Analysis of Selected Federal Assurances

ITEM #1: Acknowledgment of Federal Funding (The Stevens Amendment)

Section 8136 of the Department of Defense Appropriations Act (Stevens Amendment), P.L. 100-463, enacted in October 1988 and section 511 of the fiscal year 1990 U.S. Department of Education Appropriations Act states: "When issuing statements, press releases, requests for proposals, bid solicitations and other documents describing projects or programs funded in whole or in part with federal money, all grantees receiving federal funds, including but not limited to state and local governments, shall clearly state (1) the percentage of the total cost of the program or project which is financed with federal money, (2) the dollar amount of federal funds for the project or program, and (3) the percentage and dollar amount of the total costs of the project or program that will be funded by non-governmental sources."

We (The Office of Research and Sponsored Programs) are responsible for university compliance with this amendment. The faculty is made aware of their obligation on the Project Administrative Summary in the section Publications/Reprints -- Acknowledgment of Sponsor Required. The Project Administrative Summary is sent to the principal investigator, the department chair and college dean when funding is received by the principal investigator (university). Readers of Research News were reminded in the spring 1997 issue. We should remind the faculty during our new faculty orientation and annually in Research News. Currently we do not monitor the faculty for compliance. We should "spot check" within various departments on campus to see if the federal government is acknowledged. The university's internal audit department may be able to assist us in the project. If many cases of non-compliance are found the university is at risk for an audit comment. A plan will need to be developed to insure compliance with this amendment.


ITEM #2: International Air Transportation (From NSF Grant Policy Manual)

The Comptroller General of the U.S., by Decision B-138942 of June 17, 1975, as amended March 31, 1981, provided guidelines for implementation of Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 USC 1517).

49 U.S. Code 40118 states that "the intent of former 49 USC 1517 is to prefer United States air carriers over foreign air carriers rather than to prefer certified over noncertified air carriers." The former 49 USC 1517 introduced the Fly America Act as a means for implementing Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (as implemented by FAR 52.247-263).

The Fly America Act gives specific rules and regulations for people traveling on international trips being funded by federal money. All "Federal employees and their dependents, consultants, grantees, and others performing United States Government financed foreign air travel" are required to travel by U.S. flag carriers.

Wright State University monitors the foreign travel expenses charged to federal grants through the Office of Research and Sponsored Programs. The Grants Management Specialist reviews the travel expense authorization and expense report to ensure that any foreign travel was completed on an U.S. flag carrier. If the travel was not done on an U.S. flag carrier, the travel expense must be certified as to meeting one of the exceptions in the regulations or be denied. In addition, the regulations of the Fly America Act are presented as part of the RSP Post-Award training.


ITEM #3: Defense of Suits Brought by Employees/Ex-Employees (Major Fraud Act of 1988)

Section 2 of the Major Fraud Act of 1988 established that any costs incurred relating to suits brought by current or former employees, including the cost of all relief necessary to make the employee whole, where the institution was found liable or settled, are unallowable.

Wright State University channels all such suits through the Office of General Counsel. Any costs incurred related to this type of litigation is charged to the Office of General Counselís accounts. There are no litigation costs charged directly to grant accounts, and any accounts related to the Office of General Counsel are excluded from the calculation of indirect cost rates.

Section 2 of the Major Fraud Act of 1988 only applies to grants/contracts supported in whole or in part by federal dollars. Also, litigation costs resulting from a subrecipient suit may be allowable as long as they were not brought on by federal, state, local or foreign governments. However, there are some restrictions that apply to this exception (e.g. reasonableness).



ITEM #4: Nondiscrimination Statutes (from Standard Form 424: Civil Rights Act of 1964)

From Standard Form 424: Civil Rights Act of 1964

"Will comply with all Federal statutes relating to nondiscrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin . . ."

Discrimination occurs when individuals are deprived of their civil rights (an enforceable right or privilege) because of their race, sex, religion, age, national origin, sexual preference, etc. As enacted, the purpose of the Civil Rights Act of 1964 was to "enforce the constitutional right to vote . . . to protect constitutional rights in public facilities and public education . . . to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity . . . ". The Civil Rights Act of 1964 appears in volume 42 of the United States Code, beginning at section 2000e.

Of interest to those in the public education arena are the Civil Rights Act of 1964 and ensuing legislation that endorsed a strong policy against discrimination in public schools and colleges. Title VI of the Civil Rights Act prohibits discrimination in federally funded programs; Title VII prohibits employment discrimination.

Dr. Juanita Wehrle-Einhorn, Director of Affirmative Action Programs at Wright State University, is the Universityís Compliance Officer for this executive order. Wright State University is periodically audited for compliance by the Office of Federal Contractor Compliance Programs, as well as state agencies such as the Ohio Department of Health and its Equal Employment Opportunity Office.

By certifying that Wright State University is in compliance, the authorized institutional official is verifying that no person shall, on the grounds of race, color, or national origin, sex, age, religion or disability and veteransí status be excluded from participation in, be denied the benefit of, or otherwise subjected to discrimination under any program or activity receiving Federal financial assistance.




Ohio Department of Health letter of compliance dated November 13, 1997.

ITEM #5: Legal Implication of Public Health Service Applications

By signing a grant application for submission to the Public Health Service (PHS), the institutional official (IO), on behalf of the university, certifies that the information presented in the application is "true, complete and accurate" to the best of his or her knowledge and that he or she is aware that "any false, fictitious, or fraudulent statements or claims" may be subject to "criminal, civil, or administrative penalties." There are several citations that allow requiring such affirmations as part of a PHS grant application.

The Program Fraud and Civil Remedies Act of 1986 (Public Law 99-509, 31 U.S.C. 3801-3812) provides for the administrative imposition of civil penalties and assessments for knowingly making false, fictitious, or misleading claims to the Federal Government when soliciting funding. The regulations specifying the process for this action are spelled out in 45 CFR Part 79. Criminal prosecution for knowingly making or presenting false, fictitious, or fraudulent statements, representations, or claims is permitted under the Criminal False Claims Act, 18 U.S.C. 287 and 18 U.S.C. 1001. The imposition of penalties and damages through civil litigation for false or fraudulent claims for payment is permitted under the Civil False Claims Act, 31 U.S.C. 2739.

The university primarily uses the "internal authorization" process for assuring that grant applications submitted to the PHS (or other grant/contract proposals) contain no fraudulent statements or claims. Internal authorization of proposals occurs before signature by the IO and requires the investigators and co-investigators to provide written assurances of program accuracy, academic units to indicate in writing their approval of the personnel, facilities and equipment usage(s) described therein, and Research and Sponsored Programs to monitor the budgetary, compliance (e.g., human and animal subject approvals), and individual administrative issues (e.g., conflict of interest). Research and Sponsored Programs also acts as liaison with the various university units that are responsible for maintaining university wide-compliances (e.g., affirmative action). Hence, by the time a proposal is signed by the IO, it has undergone multiple checks and balances to insure that the information contained therein is, to the best of the IOís knowledge, accurate and complete.

As an added assurance, at any point in the life cycle of a grant, from submission through funding and completion, that grant may be withdrawn by the university if it is found to contain false or fraudulent information.


ITEM #6: Executive Order No. 10925

Prior to awarding a contract, the Federal Government requires recipients to respond to a set of Representations and Certifications. One such certification that recipients must complete is FAR Clause 52.222-22. This clause requests information as to whether the recipient has or has not participated in any previous contracts or subcontracts that were subject to one of three (3) Equal Opportunity clauses, one of which is referenced as Section 301 of Executive Order No. 10925.

Executive Order No. 10925, executed by President John F. Kennedy on March 6, 1961, established the Presidentís Committee on Equal Employment Opportunity and outlined the Federal Governmentís position on affirmative action in its procurement practices. In addition to establishing the presidentís committee, this executive order established the frame-work to study and alleviate discrimination in Government employment, including sanctions and penalties for non-compliance, and laid out the obligations of Government contractors and subcontractors in assuring equal employment practices. Specifically, Section 301 of this order spells out the obligations imposed upon contractors receiving Federal funds and the language required in these contracts to assure compliance with the directive.

Wright State has several mechanisms for maintaining compliance with Executive Order No. 10925. For internal compliances, the University maintains an administrative unit, the Affirmative Action Programs, that is charged with assuring non-discrimination in its employment practices and works closely with Wright State's employment unit, Human Resources, toward this goal. For external compliances, Research and Sponsored Programs is responsible for assuring that appropriate affirmative action language is present, where appropriate, in the contracting and subcontracting activity under its authorities.

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