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
If a recipient has failed to comply with the terms and conditions of award, NIH may take one or more enforcement actions which include disallowing costs, withholding of further awards, or wholly or partly suspending the grant, pending corrective action. NIH may also terminate the grant in whole or in part as outlined in 2 CFR Part 200.340 and 45 CFR Part 75.372. The regulatory procedures that pertain to suspension and termination are specified in 2 CFR Parts 200.340 through 200.343 and 45 CFR Part 75.372.
- NIH or the pass-through entity must provide the non-Federal entity a notice of termination
If the award is terminated for the non-Federal entity's material failure to comply with the Federal statutes, regulations, or terms and conditions of the Federal award, the notification must state that:
- The termination decision will be reported to the OMB-designated integrity and performance system accessible through SAM (currently FAPIIS);
- The information will be available in the OMB-designated integrity and performance system for a period of five years from the date of the termination, then archived;
- Awarding agencies that consider making a Federal award to the non-Federal entity during that five year period must consider that information in judging whether the non-Federal entity is qualified to receive the Federal award, when the Federal share of the Federal award is expected to exceed the simplified acquisition threshold over the period of performance;
- The non-Federal entity may comment on any information the OMB-designated integrity and performance system contains about the non-Federal entity for future consideration by HHS awarding agencies. The non-Federal entity may submit comments to the recipient integrity and performance portal accessible through CPARS.
- Federal awarding agencies will consider the non-Federal entity comments when determining whether the non-Federal entity is qualified for a future Federal award.
- Upon termination of an award, NIH must provide the information required under FFATA to the Federal web site established to fulfill the requirements of FFATA and update or notify any other relevant government-wide systems or entities of any indications of poor performance as required by 41 U.S.C. 417b and 31 U.S.C. 3321. See also the requirements for Suspension and Debarment at 2 CFR Part 180.
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 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. 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.