remedies for noncompliance or enforcement actions, suspension, termination, withholding of support, compliance

8.5.2 Remedies for Noncompliance or Enforcement Actions: Suspension, Termination, and Withholding of Support

NIH may implement specific award conditions if a recipient or subrecipient fails to comply with the U.S. Constitution, Federal statues, regulations, or the terms and conditions of award., When NIH determines that noncompliance cannot be remedied by imposing specific conditions, NIH may take one or more of the following actions:

  • Temporarily withhold payments until the recipient or subrecipient takes corrective action.
  • Disallow costs for all or part of the activity associated with the noncompliance by the recipient or subrecipient.
  • Suspend or terminate the Federal award in part or in its entirety.
  • Initiate suspension or debarment proceedings as authorized in 2 CFR Part 180.
  • Withhold further Federal funds (new awards or continuation funding) for the project or program
  • Pursue other legally available remedies in consultation with the HHS Office of General Counsel, NIH Branch.

The regulatory procedures requirements that pertain to suspension and termination are specified in 2 CFR Parts 200.340 through 200.343.

An NIH award may be terminated in part or in its entirety as follows:

  1. By NIH if the recipient fails to comply with the terms and conditions of the Federal award.
  2. By NIH with the consent of the recipient (i.e. bilateral termination), in which case the two parties must agree upon the termination conditions. These conditions include the effective date and, in the case of partial termination, the portion to be terminated.
  3. By the recipient upon sending NIH a written notification of the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if NIH determines that the remaining portion of the award will not accomplish the purposes for which the award was made, NIH may terminate the Federal award in its entirety.
  4. By NIH pursuant to the terms and conditions of the Federal award, including, to the extent authorized by law, if the award no longer effectuates the program goals or agency priorities.

In accordance with the requirements outlined in 2 CFR Part 200.341, NIH must provide written notification of termination to the recipient. The written notice of termination will include the reasons for termination, the effective date, and the portion of the award to be terminated, if applicable.

If an NIH award is terminated due to the recipient's material failure to comply with the Federal award, the notification must state that:

  1. The termination decision will be reported to the OMB-designated integrity and performance system accessible through SAM.gov.

  2. The information will be available in SAM.gov for a period of five years from the date of the termination, then archived;

  3. If NIH considers making a Federal award to the recipient during that five year period, NIH and other Federal agencies must consider this information in judging whether the recipient is qualified to receive the NIH award, when the NIH share of the award is expected to exceed the simplified acquisition threshold over the period of performance;

  4. The recipient may comment on any information in SAM.gov about the recipient for future consideration by Federal awarding agencies. The recipient may submit comments in SAM.gov.

  5. NIH may consider the recipient's comments when determining whether the recipient is qualified for a future NIH award.

Upon termination of an award, NIH will provide the information required by FFATA to USAspending.gov. In addition, NIH will update or notify any other relevant government-wide systems or entities of any indications of poor performance as required by 41 U.S.C. 2313 and 31 U.S.C. 3321.

When the recipient fails to comply with the terms and conditions of the award, NIH generally will suspend (rather than immediately terminate) a grant and allow the recipient an opportunity to take appropriate corrective action before NIH makes a termination decision. However, NIH may decide to terminate the grant if the recipient does not take appropriate corrective action during the period of suspension. NIH may immediately terminate a grant when necessary, such as to protect the public health and welfare from the effects of a serious deficiency. Termination due to the recipient's failure to carry out its approved project in accordance with the applicable law and the terms and conditions may be appealed under NIH and HHS grant appeals procedures (see Administrative Requirements—Grant Appeals Procedures).

A grant also may be terminated, partially or totally, by the recipient or by NIH with the consent of the recipient (i.e., bilateral termination). If the recipient decides to terminate a portion of a grant, NIH may determine that the remaining portion of the grant will not accomplish the purposes for which the grant was originally awarded. In any such case, NIH will advise the recipient of the possibility of termination of the entire grant and allow the recipient to withdraw its termination request. If the recipient does not withdraw its request for partial termination, NIH may initiate procedures to terminate the entire grant.

See Cost Considerations—Allowability of Costs/Activities—Selected Items of Cost for the allowability of termination costs. Allowability of these costs does not vary whether a grant is terminated by NIH, terminated at the request of the recipient, or terminated by mutual agreement.

Withholding of support is a decision not to make a non-competing continuation award within the current competitive segment. Support may be withheld for one or more of the following reasons:

  • Adequate Federal funds are not available to support the project.
  • A recipient failed to show satisfactory progress in achieving the objectives of the project.
  • A recipient failed to meet the terms and conditions of a previous award.
  • For whatever reason, continued funding would not be in the best interests of the Federal government.

The recipient may appeal NIH's determination to deny (withhold) a non-competing continuation award because the recipient failed to comply with the terms and conditions of a previous award.