09-29 April 2009
VII - Grant Administration Disputes and Misconduct
A. Suspension and Termination Procedures
a. SUSPENSION is an action by NSF that temporarily withholds Federal support of a project pending corrective action by the grantee or a decision by NSF to terminate the grant.
b. TERMINATION is the cancellation of a grant, in whole or in part, at any time prior to its expiration.
2. Suspension and Termination
a. NSF Policy
(i) A grant may be suspended or terminated in whole or in part in any of the following situations by:
(a) NSF when the grantee has materially failed to comply with the terms and conditions of the grant;
(b) NSF when the Foundation has other reasonable cause;
(c) NSF when ordered by the Deputy Director under NSF’s Regulation on Research Misconduct (45 CFR §689);
(d) NSF and the grantee by mutual agreement (if NSF and the grantee cannot reach an agreement, NSF reserves the right to unilaterally terminate the grant); or
(e) the grantee on written notice to NSF setting forth the reasons for such action, the effective date, and, in the case of partial termination, the portion to be terminated or suspended (with the understanding that if NSF determines that the unterminated portion will not accomplish the purposes of the grant it may suspend or terminate the entire grant).
(ii) Normally, action by NSF to suspend or terminate a grant will be taken only after the grantee has been informed by NSF of the proposed action, or informed of any deficiency on its part and given an opportunity to correct it. NSF, however, may immediately suspend or terminate a grant without notice when it believes such action is reasonable to protect the interests of the government.
(iii) No costs incurred during a suspension period or after the effective date of a termination will be allowable, except those costs which, in the opinion of NSF, the grantee could not reasonably avoid or eliminate, or which were otherwise authorized by the suspension or termination notice, provided such costs would otherwise be allowable under the terms of the grant and the governing cost principles.
(iv) Within 30 days of the termination date the grantee will furnish a summary of progress under the grant and an itemized accounting of costs incurred prior to the termination date or pursuant to (iii) above. Final allowable costs under a termination settlement shall be in accordance with the terms of the grant, including this section, and the governing cost principles, giving due consideration to the progress under the grant. In no event will the total of NSF payments under a terminated grant exceed the grant amount or the NSF pro rata share when cost sharing was anticipated, whichever is less.
(v) A notice of termination other than by mutual agreement and/or the final settlement amount may be subject to review pursuant to AAG Chapter VII.B.
b. Procedures for Suspension or Termination by NSF
(i) When it is believed that a grantee has failed to comply with one or more of the terms and conditions of a grant, the NSF Grants and Agreements Officer will normally advise the grantee in writing of the nature of the problem and that failure to correct the deficiency may result in suspension or termination of the grant. The grantee will be requested to respond in writing within 30 calendar days of the date of such letter, describing the action taken or the plan designed to correct the deficiency. Copies of such correspondence will be furnished to the PI/PD and to the NSF Program Officer. NSF, however, may immediately suspend or terminate a grant without notice when it believes such action is reasonable to protect the interests of the government.
(ii) If a satisfactory response is not received within the above period, the NSF Grants and Agreements Officer may issue a notice immediately suspending authority to further obligate grant funds, in whole or in part. Notice of suspension is sent to the Authorized Organizational Representative, with a copy to the PI/PD. Within NSF, copies are furnished to the NSF Division of Financial Management and to the NSF Program Officer. The notice will set forth the terms of the suspension and its effective date.
(iii) Normally, the suspension will remain in effect for a maximum of 60 days to allow the grantee to take corrective action. In the event that the deficiency is not corrected to the satisfaction of NSF, the NSF Grants and Agreements Officer may issue a notice of termination, addressed as in b., above. The notice will set forth the reasons for the action and its effective date.
(iv) The remedies described in AAG Chapter VII.B do not preclude a grantee being subject to debarment and suspension under the OMB Guidelines to Agencies on Government-wide Debarment and Suspension (Nonprocurement) published at 2 CFR §180 and NSF's Implementation of the OMB Guidelines, located at 2 CFR Chapter XXV.
(v) Suspension or termination due to research misconduct will be imposed as provided in that regulation.
3. Termination by Mutual Agreement
a. NSF Policy
Circumstances may arise in which either NSF or the grantee wishes to terminate a project. If both parties agree that continuation of the project would not produce results commensurate with the further expenditure of funds, or if there arises any other reason, the grant may be terminated by mutual agreement.
(i) If the grantee wishes to terminate the project, the Authorized Organizational Representative should advise the NSF Grants and Agreements Officer in writing and send a copy to the NSF Program Officer.
(ii) If NSF wishes to terminate the project, the NSF Grants and Agreements Officer will advise the grantee’s Authorized Organizational Representative in writing and send copies to the PI/PD and the NSF Program Officer.
(iii) Within 30 days after receipt of request from either party for termination by mutual agreement, the other party will provide an appropriate written response. In the event of disagreement between the parties, the NSF Grants and Agreements Officer will make a final decision, subject to the review procedures prescribed by AAG Chapter VII.B.
(iv) Following termination, grant closeout procedures will be initiated.
4. NSF Suspension or Termination Review Procedure
Grantees should refer to AAG Chapter VII.B.3 for procedures to request review of a suspension or termination notice. Pending resolution of the request for review, a notice of termination shall remain in effect.
B. Informal Resolution of Grant Administration Disputes
Consistent with the Recommendation on Grant Disputes by the Administrative Conference of the U.S., and with the intent of the provisions of Alternative Dispute Resolution, the Foundation provides the informal resolution processes described below concerning disputes or disagreements that may arise over Grants and Agreements Officer post-award decisions under an NSF grant.
2. Scope of Post-Award Disputes Covered
The disputes below are covered under the process described in AAG Chapter VII.B.3:
a. cost disallowances pursuant to a Grants and Agreements Officer’s decision (e.g., specific disallowances under an individual grant or as a result of an audit report);
b. termination orders; and
c. the final settlement amount under a termination.
a. The grantee should submit a certified letter to the Director, Division of Grants and Agreements (DGA), National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230, noting the grantee’s disagreement or dispute and identifying the NSF Grants and Agreements Officer’s decision in question, giving reasons for the request for review and providing any other material pertinent to the request.
b. The letter to the Director, DGA, must be postmarked no later than 30 days after the date of the letter notifying the grantee of the decision in question. The time for filing a request for review is strictly enforced and no extensions for the purpose of preparing it will be granted.
c. The request for review need not follow a prescribed format; however, it must contain a full statement of the grantee’s position with respect to the disputed matter and the facts and reasons in support of the grantee’s position. Requests will be reviewed if the grantee submits new information (which was unavailable at the time of the original decision); if an error in fact or application of NSF policy is noted in the original decision; or improper procedures were followed in the original decision.
d. The Director, DGA, will review or designate one or more individuals to review the matter. One reviewing official will be at least at a management level equivalent to the official who made the decision that is being reviewed. In no case, will the review be undertaken by any individual involved with the decision or involved in recommending and/or monitoring the scientific and engineering aspects of the project or responsible for negotiating and/or administrating its business aspects.
e. The designated individual(s) will review and consider all relevant information available. A report which identifies the conclusion and recommendation will be completed and in disputes covered under:
(i) AAG Chapter VII.B.2a and AAG Chapter VII.B.2b, the report will be completed within 30 days and forwarded to the Director, DGA or his/her designee for a final and unappealable written decision for the agency. The Director, DGA or his/her designee will communicate the decision in writing to the grantee, normally within 15 days of receipt of the report, unless otherwise specified by NSF.
(ii) AAG Chapter VII.B.2b, the report will be completed within 90 days and forwarded to the NSF Deputy Director or his/her designee. The NSF Deputy Director or his/her designee will make the final and unappealable decision for the agency and will communicate the decision in writing to the grantee within 15 days of receipt of the report unless otherwise specified by NSF.
C. Research Misconduct
RESEARCH MISCONDUCT means fabrication, falsification, or plagiarism in proposing or performing research funded by NSF, reviewing research proposals submitted to NSF, or in reporting research results funded by NSF.
1. NSF Policies and Responsibilities
a. The NSF will take appropriate action against individuals or organizations upon a determination that misconduct has occurred. It may also take interim action during an investigation. Possible actions include sending a letter of reprimand to the individual or organization, requiring prior NSF approval of particular activities by an individual or organization, requiring special assurances of compliance with particular policies, restricting designated activities or expenditures under particular grants, suspending or terminating grants, debarring or suspending an individual or organization and prohibiting participation by an individual as an NSF reviewer, advisor or consultant.
b. NSF will find misconduct only after careful inquiry and investigation by a grantee organization, by another Federal agency or by NSF. An “inquiry” consists of preliminary information-gathering and preliminary fact-finding to determine whether an allegation or apparent instance of misconduct has substance. An investigation must be undertaken if the inquiry determines the allegation or apparent instance of misconduct has substance. An “investigation” is a formal development, examination, and evaluation of a factual record to determine whether misconduct has taken place or, if misconduct has already been confirmed, to assess its extent and consequences or determine appropriate action.
c. Before NSF makes any final finding of misconduct or takes any final action on such a finding, NSF will normally afford the accused individual or organization notice, a chance to provide comments and rebuttal and a chance to appeal. In structuring procedures in individual cases, NSF may take into account procedures already followed by other entities investigating or adjudicating the same allegation of misconduct.
d. Debarment or suspension for misconduct will be imposed only after further procedures described in applicable debarment and suspension regulations (2 CFR §180 and 2 CFR Chapter XXV).
e. The Office of Inspector General oversees investigations of research misconduct and conducts any NSF inquiries and investigations into suspected or alleged research misconduct.
f. The Deputy Director adjudicates research misconduct proceedings and the Director decides appeals.
g. After receiving an investigation report, the subject’s rebuttal and recommendations of the OIG, the NSF Deputy Director may initiate further investigation or hearings or order interim or final actions. A written disposition specifying actions to be taken will be sent to affected individuals or organizations and will include instructions on how to pursue an appeal to the Director of the Foundation.
2. Role of Grantees
a. Grantees bear primary responsibility for prevention and detection of misconduct. In most instances, NSF will rely on grantees to promptly:
(i) initiate an inquiry into any suspected or alleged misconduct;
(ii) conduct a subsequent investigation, if the inquiry finds substance;
(iii) take action necessary to ensure the integrity of research, the rights and interests of research subjects and the public and the observance of legal requirements or responsibilities; and
(iv) provide appropriate safeguards for subjects of allegations as well as informants.
b. If a grantee wishes NSF to defer independent inquiry or investigation, it should:
(i) inform NSF immediately if an initial inquiry finds substance;
(ii) keep NSF informed during such an investigation;
(iii) notify NSF even before deciding to initiate an investigation or as required during an investigation:
(a) if there is reasonable indication of possible violations of civil or criminal law;
(b) if public health or safety are at risk;
(c) if NSF’s resources, reputation, or other interests need protecting;
(d) if Federal action may be needed to protect the interests of a subject of the investigation or of others potentially affected;
(e) if the research community or the public should be informed; or
(f) if research activities should be suspended.
(iv) provide NSF with the final report from any investigation.
c. If a grantee wishes NSF to defer independent inquiry or investigation, it should complete any inquiry and decide whether an investigation is warranted within 90 days. It should similarly complete any investigation and reach a disposition within 180 days. If completion of an inquiry or investigation is delayed, but the grantee wishes NSF deferral to continue, NSF may require submission of periodic status reports.
d. Grantees should maintain and effectively communicate to their staffs appropriate policies and procedures relating to misconduct, which should indicate when NSF must or should be notified.
e. Online research ethics training is available through the Department of Health and Human Services, Office of Research Integrity at http://ori.hhs.gov/education/products/rcr_misconduct.shtml.
3. Reporting Possible Misconduct
Possible misconduct in activities funded by NSF should be reported to the Office of Inspector General, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230, (703) 292-7100 or (800) 428-2189 or via e-mail at email@example.com.