Adult Education Administrator's Manual
Revised August 2007
Policy
Legal Issues
In this section, you will find the text of the Provisions, Assurances,
and Certifications the Grantee Official must certify
which appear on Schedule CS 7000 of the
SAS. Grants are not
eligible to be funded until the grantee has certified their willingness
to abide by all requirements in administering an adult education program
granted by the Texas Education Agency
(TEA). The Provisions, Assurances
and Certifications become part of the grant contract between TEA and
the grantee. These Provisions, Assurances, and Certifications lay out
the requirements of an administrator when handling funds, subcontracting
to other entities, canceling contracts, handling public property, refunds
due to TEA, the state and federal laws the programs must adhere to,
the use of consultants, handling copyright and ownership issues, recording
personnel work hours/time, expulsion of students, dealings with religious
organizations, and recording any lobbying activities, among other legal issues.
The electronic submission of a grant application by the Grantee
Official (generally the
CEO of the organization or his/her
designee) indicates acceptance of all requirements described
in the Provisions, Assurances, and Certifications.
Statement of provisions and assurances for the program(s) in this application:
A. Terms defined: As used in these Provisions and
Assurances,
"Contract" means the entire document, whatever its name
or form, of which these Provisions and Assurances and other attachments
and schedules, if any, are a part;
"Agency" means the Texas Education Agency;
"Contractor" means the party or parties to this contract
other than Agency;
"Project Administrator" means the person representing Agency
or Contractor, as indicated by the contract, for the purposes of administering
the contract project;
"Contract Project" means the purpose intended to be achieved
through the contract of which these Provisions and Assurances are a
part;
"Applicant" means the same as "Contractor;"
"SAS" means the Standard Application System of which the
application document is a part;
"Application" means the entire package submitted by the
Applicant including the schedules contained in the application and
so indicated on the General Information page of the application package;
"Amendment" means an application that is revised in budget
categories and/or in program activities. It includes both the original
application and any subsequent amendments;
"Grant" means the same as "Contract;"
"Grantee" means the same as "Contractor;"
"Grantor" means the same as "Agency;" and
"
DCC" means the Document Control Center of Agency.
B. Contingency:
This contract is executed by Agency subject to the availability of funds appropriated
by legislative act for the purposes stated. All amendments and/or extensions
or subsequent contracts entered into for the same or continued purposes are
executed contingent upon the availability of appropriated funds. Notwithstanding
any other provision in this contract or any other document, this contract
is void upon appropriated funds becoming unavailable. In addition, this contract
may be terminated by Agency at any time upon notice to Contractor. Expenditures
and/or activities for which Contractor may claim reimbursement shall not
be accrued or claimed subsequent to receipt of such notice from Agency. This
contract may be extended or otherwise amended only by formal written amendment
properly executed by both Agency and Contractor. No other agreement, written
or oral, purporting to alter or amend this contract shall be valid.
C:
Indemnification:
For local educational agencies
(LEAs), regional education service centers (ESCs),
and institutions of higher education
(IHEs)
: Contractor,
to the extent permitted by law, shall hold Agency harmless from and shall indemnify
Agency against any and all claims, demands, and causes of action of whatever
kind or nature asserted by any third party and occurring or in any way incident
to, arising from, or in connection with, any acts of Contractor, its agents,
employees, and subcontractors, done in the conduct of the contract project.
For all other grantees, subgrantees, contractors, and subcontractors,
including nonprofit organizations and for-profit businesses: Contractor
shall hold Agency harmless from and shall indemnify Agency against
any and all claims, demands, and causes of action of whatever kind
or nature asserted by any third party and occurring or in any way incident
to, arising from, or in connection with, any acts of Contractor, its
agents, employees, and subcontractors, done in the conduct of the contract
project.
D. Encumbrances/Obligations:
For Discretionary Programs: All encumbrances shall
occur on or between the beginning and ending dates of the contract.
All goods must be received and services rendered and subsequently liquidated
(recorded as an expenditure or accounts payable) within the contract
dates. In no manner shall encumbrances be considered or reflected as
accounts payable or as expenditures.
Obligations that are liquidated and recognized as expenditures must
meet the allowable cost principles in
OMB Circular A-87, A-21, or A-122
(as applicable) and program rules, regulations, and guidelines contained
elsewhere.
For Formula Programs: All encumbrances shall occur
on or between the beginning and ending dates of the contract. Contractor
must liquidate (record as an expenditure) all obligations (encumbrances)
incurred under the contract not later than 30 days after the end of the
contract (or as specified in a program regulation, the standard application
system rules, or a request for application) to coincide with the submission
of the final expenditure report, due 45 days after the end of the contract. "Obligations" mean
the amounts of orders placed, contracts and subgrants awarded, goods
and services received, and similar transactions during a given period
that will require payment by the contractor during the same or a future
period. Obligations representing orders placed are reflected in the accounting
records as encumbrances. In no manner shall encumbrances be considered
or reflected as accounts payable or as expenditures. Obligations that
are liquidated and recognized as expenditures must meet the allowable
cost principles in OMB Circular
A-87, A-21,
or A-122 (as
applicable) and program rules, regulations, and guidelines contained
elsewhere.
E. Records Retention:
Contractor shall maintain its records and accounts in a manner which shall
assure a full accounting for all funds received and expended by Contractor
in connection with the contract project.
These records and accounts shall be retained by Contractor and made
available for programmatic or financial audit by Agency and by others
authorized by law or regulation to make such an audit for a period of
not less than five years from the date of completion of the contract
project or the date of the receipt by Agency of Contractor's final claim
for payment or final expenditure report in connection with this contract,
whichever is later. If an audit has been announced, the records shall
be retained until such audit has been completed.
F. Subcontracting:
Contractor shall not assign or subcontract any of its rights or responsibilities
under this contract, except as may be otherwise provided for in this application,
without prior formal written amendment of this contract properly executed
by both Agency and Contractor.
G. Contract Cancellation, etc.:
If this contract is canceled, terminated, or suspended by Agency prior to its
expiration date, the monetary value of services properly performed by Contractor
pursuant to this contract shall be determined by Agency and paid to Contractor
as soon as reasonably possible.
H. Capital Outlay:
If Contractor purchases capital outlay (furniture and/or equipment) to accomplish
the objective(s) of the project, title will remain with Contractor for the
period of the contract. Agency reserves the right to transfer capital outlay
items for contract noncompliance during the contract period or as needed
after the ending date of the contract. This provision applies to any and
all furniture and/or equipment regardless of unit price and how the item
is classified in Contractor's accounting record.
I. Refunds Due to TEA:
If Agency determines that Agency is due a refund of money paid to Contractor
pursuant to this contract, Contractor shall pay the money due to Agency within
30 days of Contractor's receipt of written notice that such money is due
to Agency. If Contractor fails to make timely payment, Agency may obtain
such money from Contractor by any means permitted by law, including but not
limited to offset, counterclaim, cancellation, termination, suspension, total
withholding, and/or disapproval of all or any subsequent applications for
said funds.
J. Agency Property (terms):
In the event of loss, damage or destruction of any property owned by or loaned
by Agency while in the custody or control of Contractor, its employees, agents,
consultants or subcontractors, Contractor shall indemnify Agency and pay
to Agency the full value of or the full cost of repair or replacement of
such property, whichever is the greater, within 30 days of Contractor's receipt
of written notice of Agency's determination of the amount due. This applies
whether the property is developed or purchased by Contractor pursuant to
this contract or is provided by Agency to Contractor for use in the contract
project. If Contractor fails to make timely payment, Agency may obtain such
money from Contractor by any means permitted by law, including but not limited
to offset or counterclaim against any money otherwise due to Contractor by
Agency.
K. State of Texas Laws:
In the conduct of the contract project, Contractor shall be subject to Texas
State Board of Education and Commissioner rules pertaining to this contract
and the contract project and to the laws of the State of Texas governing
this contract and the contract project. This contract constitutes the entire
agreement between Agency and Contractor for the accomplishment of the contract
project. This contract shall be interpreted according to the laws of the
State of Texas except as may be otherwise provided for in this contract.
L. Applicable Federal Rules, Laws, and Regulations:
Contractor shall be subject to and shall abide by all federal laws, rules and
regulations pertaining to the contract project, including but not limited
to:
- Americans With Disabilities Act, P. L. 101-336, 42 U.S.C. sec. 12101,
and the regulations effectuating its provisions contained in 28 CFR
Parts 35 and 36, 29 CFR Part 1630, and 47 CFR Parts 0 and 64;
- Title VI of the Civil Rights Act of 1964, as amended (prohibition
of discrimination by race, color, or national origin), and the regulations
effectuating its provisions contained in 34 CFR Part 100;
- Title IX of the Education Amendments of 1972, as amended (prohibition
of sex discrimination in educational institutions) and the regulations
effectuating its provisions contained in 34 CFR Part 106, if Contractor
is an educational institution;
- Section 504 of the Rehabilitation Act of 1973, as amended (nondiscrimination
on the basis of handicapping condition), and the regulations effectuating
its provisions contained in 34 CFR Part 104;
- the Age Discrimination Act of 1975, as amended (prohibition of discrimination
on basis of age), and any regulations issued there under, including
the provisions contained in 34 CFR Part 110;
- the Family Educational Rights and Privacy Act of 1975, as amended,
and any regulations issued there under, if Contractor is an educational
institution;
- Section 509 of H.R. 5233 as incorporated by reference in P. L. 99-500
and P. L. 99-591 (prohibition against the use of federal grant funds
to influence legislation pending before Congress);
- 34 CFR Part 99 (Privacy Rights of Parents and Students);
- P. L. 103-227, Title X, Miscellaneous Provisions of the GOALS 2000:
Educate America Act;
- P. L. 103-382, Title XIV, General Provisions of the Elementary and
Secondary Education Act, as amended; and the General Education Provisions
Act, as amended.
Forms, Assurances, and Reports: Contractor shall timely
make and file with the proper authorities all forms, assurances and reports
required by federal laws and regulations. Agency shall be responsible
for reporting to the proper authorities any failure by Contractor to
comply with the foregoing laws and regulations coming to Agency's attention,
and may deny payment or recover payments made by Agency to Contractor
in the event of Contractor's failure so to comply.
M. Federal Regulations, Applicable to federally funded
applications:
- For Local Education Agencies (LEAs): 28 CFR 35
Subparts A-E, 28 CFR 36 Subparts C & D, Appendix A, 29 CFR 1630,
34 CFR 75 or 76 as applicable, 77, 79, 80, 81, 82, 85, 99, 104, 47
CFR 0 and 64, and OMB Circulars A-87 (Cost Principles) and A-133 (Audits);
- For Education Service Centers
(ESCs): 28 CFR 35
Subparts A-E, 28 CFR 36 Subparts C & D, Appendix A, 29 CFR 1630,
34 CFR 75 or 76 as applicable, 77, 79, 80, 81, 82, 85, 99, 104, 47
CFR 0 and 64, and OMB Circulars A-87 (Cost Principles) and A-133 (Audits);
- For Institutions of Higher Education (IHEs): 28
CFR 35 Subparts A-E, 28 CFR 36 Subparts C & D, Appendix A, 29 CFR
1630, 34 CFR 74, 77, 79, 81, 82, 85, 86, 99, 104, OMB Circular A-21
(Cost Principles), 47 CFR 0 and 64, OMB Circular A-133 (Audits), and
OMB Circular A-110 (Uniform Administrative Requirements);
- For Nonprofit Organizations: 28 CFR 35 Subparts
A-E, 28 CFR 36 Subparts C & D, Appendix A, 29 CFR 1630, 34 CFR
74, 77, 79, 81, 82, 85, 99, 104, 47 CFR 0 and 64, OMB Circulars A-122
(Cost Principles) and A-133 (Audits), and OMB Circular A-110 (Uniform
Administrative Requirements);
- For State Agencies: 28 CFR 35 Subparts A-E, 28
CFR 36 Subparts C & D, Appendix A, 29 CFR 1630, 34 CFR 76, 80,
81, 82, 85, 99, 104, 47 CFR 0 and 64, OMB Circulars A-87 (Cost Principles)
and A-133 (Audits), and OMB Circular A-110 (Uniform Administrative
Requirements); and For Commercial (for-profit) Organizations: 29
CFR 1630 and 48 CFR Part 31.
N. Sanctions:
If Contractor, in Agency's sole determination, fails or refuses for any reason
to perform any of its obligations under this contract, Agency may impose
such sanctions as it may deem appropriate. This includes but is not limited
to the withholding of payments to Contractor until Contractor complies; the
cancellation, termination, or suspension of this contract in whole or in
part; and the seeking of other remedies as may be provided by this contract
or by law. Any cancellation, termination, or suspension of this contract,
if imposed, shall become effective at the close of business on the day of
Contractor's receipt of written notice thereof from Agency.
O. Contractor's Application:
Furnished to Agency in response to a request for application, is incorporated
in this contract by reference for all necessary purposes. It is specifically
provided, however, that the provisions of this contract shall prevail in
all cases of conflict arising from the terms of Contractor's application
whether such application is a written part of this contract or is attached
as a separate document.
P. Terms, Conditions, and Assurances:
Which are stated in the Request for Application, in response to which Applicant
is submitting this application, are incorporated herein by reference for
all purposes. The instructions to the Standard Application System are incorporated
herein by reference.
Q. Use of Consultants:
Notwithstanding any other provision of this application, Applicant shall not
use or pay any consultant in the conduct of this application if the services
to be rendered by any such consultant can be provided by Applicant's employees.
R. Copyright/Ownership:
For School Districts and Nonprofit Organizations: All materials, conceptions,
and products created or conceived by Contractor, its employees, agents, consultants
or subcontractors arising out of the contract shall be the sole property of
Agency. Agency shall hold the copyright and shall have the exclusive right
to patent and trademark all materials, conceptions, and products, created or
conceived under this contract. Contractor shall so bind all concerned through
written agreement with subcontractors.
For Education Service Centers (ESCs): All materials,
conceptions and products created or conceived by Contractor hired by
the Education Service Center (ESC), its employees, agents, consultants
or any subcontractors arising out of the contract shall be the sole property
of the Texas Education Agency (TEA), and the TEA shall hold the copyright
to all materials, conceptions, and products, created or conceived under
this contract. Contractor shall so bind all concerned through written
agreement with subcontractors. If Contractor/Subcontractor(s) express
an interest in obtaining a license agreement to modify, market, or sell
the derived material or product developed using grant or contract funds
given any of the above parties, then contact shall be made with the TEA
Legal Division prior to any action being taken.
For Colleges and Universities: All materials, conceptions
and products created or conceived by Contractor, its employees, agents,
consultants, or subcontractors arising out of the contract shall be the
sole property of Agency. Agency shall hold the copyright to all materials,
conceptions, and products created or conceived under this contract. Contractor
shall so bind all concerned through written agreement with subcontractors.
For all materials, conceptions and products created or conceived under
the contract, Contractor is granted a non-exclusive, non-transferable,
royalty-free license to use the materials for its academic mission purposes
only, provided, however, that Contractor is prohibited from selling or
marketing said materials, conceptions, and products, created or conceived
under this contract.
S. Signature Authority:
Applicant certifies that the person signing this application has been properly
delegated this authority.
T.
Time and Effort Recordkeeping:
For those personnel whose salaries are prorated between or among different funding
sources, time and effort records will be maintained by Applicant that will confirm
the services provided within each funding source. Applicant must adjust payroll
records and expenditures based on this documentation. This requirement applies
to all projects, regardless of funding source, unless otherwise specified. For
federally funded projects, time and effort records must be in accordance with
the requirements in the applicable OMB cost principles.
U. Travel Costs:
Amounts authorized for maximum recovery for travel and per diem costs against
any state or federal funding source are restricted to those amounts which
are approved in the State of Texas Appropriation Bill in effect for the particular
funding period. Any amount over this limit must come from local funding sources.
Applicant must recover funds at a lesser rate if local policy amounts are
less than the maximum allowed by the state. Out-of-state travel may not exceed
the federal government rate for the locale.
V. Expenditure Reports:
Contractor shall submit expenditure reports in the time and manner requested
by Agency as specified in the instructions to the Standard Application System
(SAS) which are incorporated by reference. Unless otherwise specified, interim
reports are due to TEA within 15 days after the end of each reporting period.
The final expenditure report is due within 30 days after the ending date
of the grant. Revised expenditure reports, where the grantee is claiming
additional expenditures beyond that originally requested, must be submitted
within 60 days after the ending date of the grant.
W. Participation in Planning:
Applicant will provide reasonable opportunities for the participation by teachers,
parents, and other interested parties, organizations, and individuals in
the planning for and operation of each program described in this application
(20 USC 1232(e)).
X. Availability of Information:
Any application, evaluation, periodic program plan, or report relating to each
program described in this application will be made readily available to parents
and other members of the general public (20 USC 1232(e)).
Y. Sharing of Information:
Contractor certifies that it has adopted effective procedures for acquiring
and disseminating to teachers and administrators participating in each program
described in this application significant information from educational research,
demonstrations, and similar projects, and for adopting, where appropriate,
promising educational practices developed through such projects (20 USC 1232(e)).
Z. Unfair Business Practices:
Contractor certifies that no funds provided under this grant shall
be used to purchase supplies, equipment, or services from any companies found
to be guilty of unfair business practices within 12 months from the determination
of guilt.
AA. Expulsion for Serious Offenses and Policy:
The local education agency assures that it is in compliance with Section 37.007(e)
of the Texas Education Code, which requires expulsion of a student who brings
a firearm as defined by 18 U.S.C. Section 2891 to school [P. L. 103-382,
Section 14601(d)(1)]. In addition, the applicant certifies that the local
education agency has a policy requiring referral to the criminal justice
or juvenile delinquency system of any student who brings a firearm or weapon
to school [P. L. 103-382, Section 14602(a)].
***It should be noted that administrators can decid to expel a student
when he/she is disruptive even if the student has a court order to attend
adult education classes. When a judge requires a person to attend school,
the obligation falls on the student not the adult education program. It is
the responsibility of the student to find another program that will accept
his/her behavior in the classroom. Thus, there is no obligation to keep a
court ordered student in the program.***
BB.
Financial Management and Accounting:
Grantee assures it will maintain a financial management system that provides
for accurate, current, and complete disclosure of the financial results of each
grant project.
The financial management system records will identify adequately the source
and application of funds and will contain information pertaining to grant awards,
authorizations, obligations, un-obligated balances, assets, outlays (i.e.,
expenditures), income, and interest. Fiscal control and accounting procedures
will permit the tracing of funds to a level of expenditure adequate to establish
that funds have been used in accordance with the approved grant application.
The applicant agrees to maintain effective control over and accountability
for all funds, property, and other assets. Public school districts, open enrollment
charter schools, and regional education service centers in Texas must comply
with the accounting requirements in the Financial Accounting and Reporting
module of the Financial Accountability System Resource Guide, Texas
Education Agency (34 CFR 74.21; 34 CFR 80.20; TEA Financial Accountability
System Resource Guide).
CC. Funds for Religious Worship, Instruction:
No funds will be used to pay for religious worship, instruction, or proselytization,
or for any equipment or supplies for such, or for any construction, remodeling,
repair, operation, or maintenance of any facility or part of a facility to
be used for religious worship, instruction, or proselytization (34 CFR 76.532).
DD. Disclosure of Gifts and Campaign Contributions:
The grantee shall file disclosures of gifts and campaign contributions as required
by State Board of Education Operating Rule 4.3, which is incorporated as
if set out in full. The grantee has a continuing obligation to make disclosures
through the term of the contract. Failure to comply with State Board of Education
Operating Rule 4.3 is grounds for canceling the grant.
In dealing with all other legal issues involving students in the Adult Education
Program a grantee should closely follow the local policy of the organization.
Consult organization’s administration for specific procedures regarding
problems such as, but not limited to, dating students, weapons in the premises,
gang related activity, sexual harassment, drugs or alcohol abuse, safe schools,
destruction of property by a student, and probationary status.
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