Restrictions on Grants and Cooperative Agreements

Attachment 1, page 1 of 4
FY 2012 Appropriations Provisions on Tax Delinquency and Felony
Convictions: Implementation for DoD Grants and Cooperative Agreements
I. GUIDANCE
A. Scope. This guidance specifies actions DoD Components must take to implement provisions
in three FY 2012 appropriations acts that make funds available directly to DoD (Attachment 2).
As this guidance does not address related provisions in other FY 2012 appropriations acts, a DoD
Component that obligates funds appropriated to another Federal agency should consult with that
agency if it is unsure about requirements that apply to those funds.
B. Applicability. This guidance applies to:
1. DoD Component awards of grants and cooperative agreements, including Technology
Investment Agreements (TIAs). This guidance uses the term “awarding offices” to refer to DoD
Component organizations that make those awards.
2. Program funds transferred to other organizations for obligation with the expectation
that the other organization may use transferred funds to make awards to non-Federal entities.
This guidance uses the term “program offices” to refer to DoD Component organizations
authorized to carry out such transfers.
C. Effective date. The requirements in this guidance are effective 30 days after the signature
date of the cover memorandum.
D. Statutory restrictions. A DoD grants or agreements officer may award a grant or cooperative
agreement, including a TIA, to a corporation using funding made available to DoD by the:
1. Department of Defense Appropriations Act, 2012, only in conformance with the
requirements of sections 8124 and 8125 of that act (see Attachment 2).
2. Military Construction and Veterans Affairs and Related Agencies Appropriations Act,
2012ǡonly in conformance with the requirements of section 514 of that act (see Attachment 2).
3. Energy and Water Development Appropriations Act, 2012, only in conformance with
the requirements of sections 504 and 505 of that act (see Attachment 2).
E. Definition of “corporation”. “Corporation” means any entity, including any institution of
higher education, other nonprofit organization, or for-profit entity that has filed articles of
incorporation.
F. Procedures.
1. For any program under which awards to incorporated entities are possible, an
awarding office must obtain the appropriate representation from each intended recipient prior to
award (see Part II of this attachment). It is important to do this as early as possible in the award

Attachment 1, page 2 of 4
process, in case consultations with the DoD Component’s suspension and debarment official
(SDO) are required prior to award. For a program that has an application process, the awarding
office must do this by including a statement in each program announcement under which it will
receive applications after the effective date of this guidance, to require submission of the
representation with each such application.
2. With one exception, if a grants or agreements officer receives a representation with an
affirmative response from an entity—or if he or she has other knowledge of a felony conviction
or tax delinquency that would make the entity ineligible to receive an award under the applicable
appropriations act provisions—the grants or agreements officer may make an award to the entity
only if he or she has a written notification from the DoD Component’s suspending and debarring
official (SDO) that the SDO considered suspension or debarment of the entity and determined
that further action is not required to protect the Government’s interests.
The one exception to
this requirement is when the grants or agreements officer is certain that the entity is not
incorporated.
3. For each program under which program officials receive applications for merit review
and subsequently send the grants or agreements officers those recommended for funding,
program officials should be advised to notify the grants or agreements officers as early as
possible about any applications received without the required representations and deemed likely
to be recommended for funding.
4. If a program office transfers to another organization FY 2012 appropriations made
available to DoD by any of the three acts listed in section I.D of this guidance, and expects that
the other organization may use the funds to make an award to a non-Federal entity, the program
office must include a statement in the funding document to inform the agency about the
restrictions listed in section I.D for those appropriations. In a funding document transferring
appropriations to a non-DoD organization for obligation, the statement also must require that
organization to refer to the DoD program office any case in which it is aware that a potential
recipient entity has a felony conviction or tax delinquency that would make the entity ineligible
under an applicable restriction listed in section I.D. The appropriations provisions in that case
require that suspension or debarment be considered by the DoD Component’s SDO, rather than
by the SDO of the organization to which the funds were transferred.
5. Because it is currently anticipated that subsequent appropriations acts may include
provisions that are identical or nearly identical to those shown in Attachment 2 for the FY 2012
appropriations acts, program and awarding offices should:
a. Carefully review the provisions of subsequent appropriations acts, as well as
continuing resolutions that make funds available for obligation; and
b. Continue to follow the procedures specified in this guidance, with appropriate
adjustments in wording of representations and assurances to reflect any differences in the
applicable statutory wording, until this guidance is superseded by future guidance.


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Attachment 1, page 3 of 4
II. REPRESENTATIONS
A. Department of Defense Appropriations Act, 2012. Use the following representations if the
funding to be obligated was made available to DoD by the Department of Defense
Appropriations Act, 2012:
(1) The applicant represents that it is ___ is not ___ a corporation that has any unpaid Federal tax
liability that has been assessed, for which all judicial and administrative remedies have been
exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement
with the authority responsible for collecting the tax liability.
(2) The applicant represents that it is ___ is not ___ a corporation that was convicted of a
criminal violation under any Federal law within the preceding 24 months.
NOTE: If an applicant responds in the affirmative to either of the above representations, the
applicant is ineligible to receive an award unless the agency suspension and debarment official
(SDO) has considered suspension or debarment and determined that further action is not required
to protect the Government’s interests. The applicant therefore should provide information about
its tax liability or conviction to the agency’s SDO as soon as it can do so, to facilitate completion
of the required consideration before award decisions are made.

B. Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2012.
Use the following representation if the funding to be obligated was made available to DoD by the
Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2012:
The applicant represents that it is ___ is not ___ a corporation that was convicted of a criminal
violation under any Federal or State law within the preceding 24 months.
NOTE: If an applicant responds in the affirmative to the above representation, the applicant is
ineligible to receive an award unless the agency suspension and debarment official (SDO) has
considered suspension or debarment and determined that further action is not required to protect
the Government’s interests. The applicant therefore should provide information about its
conviction to the agency’s SDO as soon as it can do so, to facilitate completion of the required
consideration before award decisions are made.

C. Energy and Water Development Appropriations Act, 2012. Use the following
representations if the funding to be obligated was made available to DoD by the Energy and
Water Development Appropriations Act, 2012:
(1) The applicant represents that it is ___ is not ___ a corporation that has any unpaid Federal tax
liability that has been assessed, for which all judicial and administrative remedies have been
exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement
with the authority responsible for collecting the tax liability.
(2) The applicant represents that it is__ is not__ a corporation that was convicted (or had an
officer or agent of such corporation acting on behalf of the corporation convicted) of a felony
criminal violation under any Federal law within the preceding 24 months.
NOTE: If an applicant responds in the affirmative to either of the above representations, the
applicant is ineligible to receive an award unless the agency suspension and debarment official
(SDO) has considered suspension or debarment and determined that further action is not required

Attachment 1, page 4 of 4
to protect the Government’s interests. The applicant therefore should provide information about
its tax liability or conviction to the agency’s SDO as soon as it can do so, to facilitate completion
of the required consideration before award decisions are made.

TAXDELINQUENCYPROVISION





SEC. 505. None of the funds made available by this Act may be
used to enter into a contract, memorandum of understanding, or
cooperative agreement with, make a grant to, or provide a loan or
EnergyandWater
loan guarantee to, any corporation that has any unpaid Federal
Development
tax liability that has been assessed, for which all judicial and
AppropriationsAct,2012 administrative remedies have been exhausted or have lapsed, and
that is not being paid in a timely manner pursuant to an agreement
DivisionBofthe
with the authority responsible for collecting the tax liability, where
Consolidated
AppropriationsAct,2012 the awarding agency is aware of the unpaid tax liability, unless the
agency has considered suspension or debarment of the corporation
(Pub.L.112Ͳ74)
and made a determination that this further action is not necessary
to protect the interests of the Government.

DivisionHofthe
Consolidated
AppropriationsAct,2012
(Pub.L.112Ͳ74)

MilitaryConstructionand
VeteransAffairsand
RelatedAgencies
AppropriationsAct,2012

SEC. 504. None of the funds made available by this Act may
be used to enter into a contract, memorandum of
understanding, or cooperative agreement with, make a
grant to, or provide a loan or loan guarantee to any
corporation that was convicted (or had an officer or agent
of such corporation acting on behalf of the corporation
convicted) of a felony criminal violation under any Federal
law within the preceding 24 months, where the awarding
agency is aware of the conviction, unless the agency has
considered suspension or debarment of the corporation, or
such officer or agent, and made a determination that this
further action is not necessary to protect the interests of the
Government.

SEC. 514. None of the funds made available by this Act may
be used to enter into a contract, memorandum of
understanding, or cooperative agreement with, or to make a
grant to, any corporation that was convicted of a felony
criminal violation under any Federal or State law within
the preceding 24 months, where the awarding agency is
aware of the conviction, unless the agency has considered
suspension or debarment of the corporation and made a
determination that this further action is not necessary to
protect the interests of the Government

SEC. 8125. None of the funds made available by this Act
may be used to enter into a contract, memorandum of
understanding, or cooperative agreement with, make a
grant to, or provide a loan or loan guarantee to, any
corporation that was convicted of a felony criminal
violation under any Federal law within the preceding 24
months, where the awarding agency is aware of the
conviction, unless the agency has considered suspension or
debarment of the corporation and made a determination
that this further action is not necessary to protect the
interests of the Government.

FELONYPROVISION

FY2012APPROPRIATIONSACTPROVISIONSONTAXDELINQUENCYANDFELONYCONVICTIONS



SEC. 8124. None of the funds made available by this Act may be
used to enter into a contract, memorandum of understanding, or
cooperative agreement with, make a grant to, or provide a loan or
DepartmentofDefense loan guarantee to, any corporation that any unpaid Federal tax
AppropriationsAct,2012 liability that has been assessed, for which all judicial and
administrative remedies have been exhausted or have lapsed, and
DivisionAofthe
that is not being paid in a timely manner pursuant to an agreement
Consolidated
AppropriationsAct,2012 with the authority responsible for collecting the tax liability, where
the awarding agency is aware of the unpaid tax liability, unless the
(Pub.L.112Ͳ74)
agency has considered suspension or debarment of the corporation
and made a determination that this further action is not necessary
to protect the interests of the Government.

STATUTE

Attachment2