NIH POLICY MANUAL
1135 - GIFTS
ADMINISTRATION
Issuing Office: OFM 496-3368
Release Date: 12/19/01
Partial
Revisions: 9/20/05*
_____________________________________________________________________
1. Explanation of Material Transmitted: * (9/20/05)
The material transmitted contains amended language that redefines the policies and procedures to be followed when accepting gifts, in response to a recent GAO Draft Report entitled: Federal Research: NIH and EPA Need to Improve Conflict of Interest Reviews for Research Reviews With Private Sector Entities". In this regard, the following changes have occurred: 1) NIH has established a new protocol, primarily based on the value of the gift, that will assist the ICs in determining when a gift offered by a private entity, e.g., company, foundation, enterprise, etc., requires a conflict of interest review and documentation of the proceedings; 2) The Appendix (Validity Test Survey) that was previously utilized to assess whether the gift had the potential for a conflict of interest and the need for careful examination and documentation, has been condensed and restructured; 3) When accepting a gift for other than official entertainment expenses, the SF-2408 which previously needed to be properly completed and signed, will no longer be required; and 4) The Acceptance Letter for Conditional Gifts has been modified such that the IC will not be required to include an acknowledgement statement or certification line indicating transfer of unused conditional gift fund monies to an unconditional gift fund account, when the value of the gift is under $1,000.
2. Filing Instructions: Sections E, F
and G6 have been revised. Appendix 8 has been deleted.
Appendices 2 - 6 have been renumbered. Previous partial revisions
of 3/3/04 and 5/24/05 have been revised and/or removed accordingly.
PLEASE NOTE: For
information on:
A. Purpose
This chapter establishes policy and procedures
concerning the acceptance, acknowledgment, and administration of gifts (including
bequests, devises of real property, legacies, and donations from living donors) to the
National Institutes of Health or to support any of its activities or components. This
manual chapter applies to the receipt of all monetary and non-monetary gifts.
B. Background
This information is intended as guidance by which the NIH may take full
advantage of its statutory and delegated authorities to accept gifts.
Compliance will enable NIH management to control efficiently the acquisition
and utilization of these resources; assure that NIH employees avoid
conflicts of interest and violations of laws regarding unauthorized
augmentation of appropriations, supplementation of Federal salary,
expenditures in excess of appropriations, and handling of miscellaneous
receipts.
The NIH is authorized in five separate ways to receive funds to
supplement appropriated funds, to support its research efforts under: 1) the
statutory authority for the acceptance of gifts; 2) the Stevenson-Wydler
Technology Innovation Act of 1980, as amended, pursuant to a Cooperative
Research and Development Agreement; 3) royalties resulting from licenses and
patents; 4) the acceptance of grants as conditional gifts; and 5) the
statutory authority for the Foundation for the National Institutes of Health
to transfer funds to NIH.
C. References
1. Comptroller General of the
United States, Decisions B-198730 (September 24, 1980)
and B-255474 (April 3, 1995).
2. 41 CFR Part 101- 49, as
amended.
3. Sections 231 and
405(b)(1)(H) of the Public Health Service (PHS) Act, as amended (42 U.S.C.
§§238, 284(b)(1)(H)) (gift acceptance statutes).
4. Section 499 of the PHS
Act, as amended (42 U.S.C. §290b) (authority establishing the Foundation
for the National Institutes of Health).
5. U.S. Treasury Department Deposit Regulations, Treasury Fiscal
Requirements Manual, Part 5- Deposit Regulations, Section 4020, as amended
(Frequency of Deposits).
6. Memorandum from the Assistant
Secretary for Health to PHS Agency Heads,
"Delegation of Authority To Accept Gifts Under Title XXI of the
Public Health Service Act (PHS), Miscellaneous" ( July 10, 1995).
7. Memorandum from Acting
Associate General Counsel for Ethics and Designated Agency Ethics Official
(E. Swindell) to Deputy Secretary et al "Holiday Gifts,
Parties, and Charitable Fundraising" ( Dec. 4, 2000).
8. Memorandum from Deputy Director Management, NIH/Deputy Director for
Intramural Research, NIH to OD Staff/IC Directors, "Update on
Relationships with NIH and the Foundation for the National Institutes of
Health (FNIH)" (January 19, 2000).
9. NIH Manual Chapter 1130, Delegations of
Authority, Finance
#5 "Accept Gifts Under Section 231 of the PHS Act," Program:
General #10 "National Library of Medicine".
10. NIH Manual Chapter 1130,
Delegations of Authority, Finance #6 "Memorials and other
Acknowledgments".
11. NIH
Manual Chapter 1160-1, "Entertainment".
12. NIH
Manual Chapter 2300-735-1, "Avoiding Conflicts of Interest".
13. Chapter 2300-735-4,
"Outside Work and Related Activities with
Outside Organizations"(02/17/98), as modified, Memorandum, Director,
NIH, to IC Directors, "Changes in NIH Policies on Outside
Activities" (November 3, 1995). (Call the NIH Ethics Office at 301-402-6628. )
14. NIH
Manual Chapter 26101-25-2, "Personal Property Management Guide".
D.
Definitions and Acronyms
1. Definitions
Conditional gift -
a gift in which the donor imposes some condition or restriction on
the use of the gift or as a condition to be met in order to obtain the
gift. NIH is not authorized to expend conditional gift funds to support
functions not encompassed within the terms of the conditions. IC
Directors/Deputy Directors are responsible for accepting gifts within
their statutory or delegated authority. (See NIH Manual Chapter 1130, Finance
#5, "Accept Gifts Under Section 231 of the PHS Act").
Gift(s) -
"gratuitous conveyances or transfers of ownership in property
without any consideration", 25 Comp. Gen. 637, 639 (1946). For
purposes of the Department of Health and Human Services statutes
authorizing acceptance of gifts, a grant to NIH may qualify as a
conditional gift. In ordinary usage, "grant" means "
gift", usually for a particular purpose.
IC - an NIH research institute, center, and the National
Library of Medicine.
Personal property - a tangible item that is not real
property, including artwork, furniture, equipment, office machines,
vehicles, materials, and supplies. It excludes intangible items such as
money, stocks, and bonds.
Unconditional gift -
a gift in which the donor does not impose some condition or restriction on
the use of the gift or as a condition to be met in order to obtain the
gift. NIH is authorized to expend unconditional gift funds to support any
of its authorized functions, within the scope of the intended use
designated by the donor, including research on a specific disease. When a
donor limits a gift to a particular IC or other NIH component or to
support research on a specific disease or activity without further
specification as to its purpose or manner of use, the gift is considered
unconditional and may be used to carry out the mission of the recipient IC
or relating to research into that specific disease or activity. IC
Directors/Deputy Directors are responsible for accepting unconditional
gifts within their statutory or delegated authority. (See NIH Manual
Chapter 1130, Finance
#5 "Accept Gifts Under Section 231 of the PHS Act").
2. Acronyms
ADB = Administrative Database
CAN = Common Account Number
CC = Clinical Center
CFO = Chief Financial Officer
CFR = Code of Federal Regulations
CRADA = Cooperative Research and Development Agreement
DDM = Deputy Director for Management, NIH
DHHS = Department of Health and Human Services
DPPS = Division of Personal Property Services, OLAO
FTTA = Federal Technology Transfer Act, as amended
FY = Fiscal Year
IC = Institutes and Centers
NCI = National Cancer Institute
NIH = National Institutes of Health
OD = Office of Director, NIH
OFM = Office of Financial Management, NIH
OGC = Office of the General Counsel
OLAO = Office of Logistics and Acquisition Operations
PHS = Public Health Service
PHS Act = Public Health Service Act, as amended (42 U.S.C. § 201 et
seq.)
PMIS = Property Management Information System
Secretary = Secretary of Health and Human Services
U.S.C. = United States Code
E. Policy
A gift will be considered as unconditional if it is made to or for the
NIH, an IC, or any constituent part of the NIH for the benefit of all or any
of these organizations, or for the carrying out of any of their functions,
without further specification as to its purpose or manner of use. A gift
will also be considered unconditional if limited to one or more of the
general purposes of any part of the PHS Act administered by NIH or to one or
more of the general purposes of any institute, agency, or component
established pursuant to Title IV of the PHS Act. Examples of gifts
considered unconditional include gifts limited by donors for the following
purposes: "the National Institutes of Health," "the National
Cancer Institute," "cancer research," without further
specification.
A gift will be considered as conditional if the donor restricts its
purpose to support a specific research study, project, or conference; to
support activities of an NIH employee identified by name or organizational
title; for specifically identified functions, such as observances,
ceremonies, particular public information or health promotion campaigns,
community outreach activities; or purchase of specific items or types of
equipment, or other specific uses.
Examples of purposes that would be considered conditional include a gift
to NIH: 1) to support a specific activity conducted by, e.g., the
"Office of Research on Women's Health"; 2) to support an
identified research project performed by a specific IC laboratory or
extramurally; or 3) restricting the expenditure of donated funds to certain
categories of expenditure, such as personnel, equipment, and supplies. Gifts
to support activities of individual employees may be accepted only if the
principal beneficiary of the gift is the NIH rather than the employee. For
conditional monetary gifts, the potential donor must agree in writing that,
upon completion of the stipulated conditions or circumstances rendering
completion of the conditions impossible, any remaining funds will be
transferred to the unconditional gift account for the support of any other
objectives of the recipient organization. The letter of acceptance of the
gift must acknowledge the donor's agreement to this condition.
If there is a question in determining whether a gift is conditional or unconditional, the assistance of the DHHS, Office of the General Counsel
(OGC), should be obtained. If, in the opinion of OGC, there is a significant question about the classification of the gift, it will be
deemed "conditional" and letters of acceptance will be prepared for consideration of the NIH official authorized to accept the particular
conditional gift in issue, under the NIH delegations of authority. All correspondence, memoranda, and other written communications in this
regard must be in writing and shall be maintained in the IC's official files.
1. Gift Acceptance
Requirements
A) Definition:
Prohibited source means an entity that has or is seeking to obtain contractual, financial, or other business relations in the
performance or nonperformance of the NIH functions. The fact that a potential donor is a prohibited source does not necessarily mean that a
proposed gift may not be accepted, only that it must be carefully evaluated for possible conflicts of interest under the "Gift Acceptance
Description Form and Validity Survey" in Appendix 1.
B) Gifts from Private Entities: The appropriate NIH official authorized to accept gifts is required to complete the Appendix 1, "Gift Acceptance Description Form and Validity Test Survey" only when the following conditions are met:
1) The value of the gift is $5,000 or greater; and
2) The gift is from a private entity, e.g., company, foundation, enterprise, charitable trust, society, or similar organization.
NOTE: If the gift is less than $5,000, the IC delegated official should examine the circumstances surrounding the donation and give careful consideration as to whether an evaluation might nevertheless be warranted, or advisable, thus, precipitating the need to complete the Appendix 1. All donations in this category must be properly documented in the applicable Acceptance Letter (See Appendix 2 of this chapter).
Once the Validity Test Survey has been completed, the following scenarios and corresponding procedures will apply:
Scenario 1: If the Validity Survey determines that the donor is a Non-Prohibited Source and there is no potential for a conflict of
interest, the completed and signed Appendix 1 shall be maintained in the IC's official files. Acceptance of the gift is
authorized.
Scenario 2: If the Validity Survey determines that the donor is potentially a Prohibited Source, the completed and signed Appendix 1 along with fully documented questions and concerns should be forwarded by the IC to OGC for review and consultation. If NIH
officials, after consultation with OGC, determine the donor is NOT a Prohibited Source, then acceptance is authorized as above in Scenario 1. If NIH officials, after consultation with OGC, determine the donor is a
Prohibited Source, and the IC elects to accept the gift, it must document how it plans to manage the gift expenditures. All
correspondence and other documentation must be maintained in the IC's official files.
Scenario 3: If the Validity Survey determines that the donor is a Prohibited Source and an actual or apparent conflict of interest may
exist, the completed and signed Appendix 1 along with fully documented reasons for accepting the gift must be presented by the
IC to the Deputy Director for Management, NIH, and the Deputy Ethics Counselor, NIH, requesting a waiver authorizing the acceptance of the
gift in the particular circumstances (See Section I of this chapter for additional information).
NOTE: In a case however, where the donor is deemed prohibited and has also expressed, directly or indirectly, an
expectation of receiving a future benefit, such as a contract award, it is NIH policy that the gift shall not be accepted. The Foundation for
the NIH is not a prohibited
source due to the specific statutory authorization to interact with the
NIH and, among other things, transfer funds to the NIH.
C) Gifts from Private Individuals: If the gift is from a private individual, regardless of the amount, the IC delegated official authorized to accept the gift, should examine the circumstances surrounding the donation and determine whether such acceptance warrants the completion of the Appendix 1. All donations from private individuals should be properly documented in the applicable Acceptance Letter (See Appendix 2 of this chapter).
2. Monetary Gifts
It is the policy of NIH to accept all monetary gifts when they will be
beneficial to NIH, subject to any limitations imposed by law, or by DHHS
or NIH policies. NIH will accept monetary gifts in lieu of gifts in-kind
when feasible. Thus, where a bequest or legacy is all or part of the
general estate (for example, a bequest of 1/3 the rest, residue and
remainder of the estate), NIH will request the executor to liquidate the
assets and make distribution in cash, as authorized under the applicable
probate or other law.
As set forth in Section H of this Chapter, gifts may not be
accepted if the conditions imposed by the donor are illegal, contrary to
public policy, burdensome, (such as caring for graves or memorials)
unreasonable to administer, contrary to generally accepted public
standards, or would create a conflict of interest or the appearance of a
conflict of interest to a reasonable person.
NOTE: A gift intended specifically for salary support may
not be accepted.
3. Nonmonetary Gifts
It is the policy of NIH to accept nonmonetary gifts, except real
estate, where they can be of use to NIH, subject to the same limitations
imposed by paragraph 1 above. However, property may not be accepted if the
total costs associated with acceptance are expected to exceed the cost of
purchasing a similar item and the cost of normal care and maintenance. Any
valuation of gifts is the responsibility of the donor. Normally, NIH will
accept the valuation placed on a tendered gift by the donor unless the
value is clearly unreasonable. Although determination of any tax
consequences is a matter between the donor and the Internal Revenue
Service, it is noted that under sections 170, 2055, and 2522 of the
Internal Revenue Code of 1986, as amended, donations to the United States
for exclusively public purposes are deductible for income, gift, and
estate tax purposes.
Section 231(d) of the PHS Act authorizes the lease or hire of property
accepted as gifts. Any income from lease or hire is to be transferred
within 24 hours of receipt to the Office of Financial Management (OFM) for
deposit as required by law. These funds will be available for expenditure
toward the operation of NIH or the performance of those functions within
the scope of the purpose designated by the donor.
Similarly, proceeds from the liquidation of personal property under
section 231(b) are to be transferred to OFM within 24 hours after receipt
for deposit with the Treasury.
Title to all personal property accepted under the gift acceptance
authority vests in the Government.
4. Gifts of Real Property
Under the delegations of authority in sections 231 and 405 of the PHS
Act, acceptance of gifts of real property subject to a reverter clause is
reserved to the Secretary. Authority under section 231 to accept other
kinds of interests in property is delegated to the Assistant Secretary for
Administration and Management/OS.
5. Gifts for the Benefit of Patients
Gifts to the Clinical Center (CC) Patient Emergency Fund or otherwise
intended solely for the benefit of patients in the Clinical Center will be
transmitted to the Social Work Department, for acceptance and
administration as authorized under the Hospital and Station Management
Regulations (42 CFR Part 35, Subpart E).
6. Receipt and Acceptance of Gifts
Under federal law, funds received by or for the United States or its
agencies, including gifts, must be deposited in and administered through
government accounts and may not be deposited with or otherwise
administered by other persons or organizations. An outside organization,
such as a foundation whose mission is solely or in part to support NIH
activities, may not serve as a financial intermediary for a third party in
the donation of funds, equipment, supplies, or other resources to be used
in support of NIH activities or employees in the performance of their
official duties, such as intramural research, unless authorized by law.
Currently, the only acceptable financial intermediary for third party
donation of funds is the Foundation for the NIH which operates under
explicit statutory authority to solicit, accept, invest, and manage third
party donations to support the NIH in its mission. Other than for NIH
Foundation-administered gifts, NIH policy is that the statutory gift
acceptance authorities provide an adequate basis for accepting all
donations, if otherwise proper, directly from the donors, while allowing
NIH managers to control the administration of these gift resources. In the
use of gift acceptance authority, employees and managers must determine
whether acceptance of the gift would compromise or appear to compromise
the integrity of the NIH or any of its employees. Authority to accept
gifts is set forth in NIH Manual Chapter 1130, Finance
#5, "Accept Gifts Under Section 231 of the PHS Act",
unless exceptions or waivers have been otherwise granted under a specific
separate statutory authority.
7. Expenditure of Gift Funds
The statutory authority for the NIH to accept gifts allows substantial
discretion in the expenditure of these funds. Under standards established
by the Comptroller General, federal agencies are allowed maximum
flexibility in the use of gift funds for the good of the agency or to
further agency goals, subject only to any restrictions placed on the gift
by the donor, Comptroller General Decision, B-198730 (Sept. 24, 1980).
Gift funds are available for expenditure for the same purposes and in the
same manner as regularly appropriated funds and are subject to the same
controls and audit as other funds. Gift funds are "no year"
monies and, as such, are available until expended within any restrictions
or limitations imposed by donors. Gift funds may be expended for any
authorized purpose in the performance of NIH functions, and may include,
when appropriate, the official entertainment of visiting scientists and
other distinguished guests as prescribed in NIH Manual Chapter 1160-1
"Entertainment." NIH policy is that expenditures from gift
funds for personal services, station support, and extramural grants and
contract awards are regulated the same as expenditures of appropriated
funds. Taking into account the limitations placed on the use of gift
funds, the Deputy Director Management, NIH, and the IC Directors/Deputy
Directors will have primary responsibility for the approval of gift fund
expenditures and whether a particular expenditure is in furtherance of NIH
objectives (within the OD, the Deputy Directors for the Office of
Intramural Research and Office of Extramural Research respectively, also
have been granted this authority). Stated conversely, the burden rests
with the above-delegated officials to assure that gift fund expenditures
are made to carry out NIH purposes, consistent with the purposes of the
gift and in accordance with the guidelines set forth above.
8. Grants, Royalties, and Awards
The NIH may also accept "grants" as conditional gifts as
proper augmentation to its appropriations and it may use its appropriated
funds to cover any cost incurred in applying for these grants. The PHS
gift acceptance statutes provide NIH the specific authority to supplement,
or "augment," its appropriations with gifts. So long as the
requirements the statutes impose on the acceptance of conditional gifts
are otherwise met, and the grant funds are used in furtherance of NIH's
mission, there are no objections to NIH's acceptance of these grants (see
Appendix 4). In some situations where unsolicited grants or other
types of awards are made to NIH employees for scientific or other
professional purposes, it is necessary to determine whether the funds are
intended for the NIH or for the employee in that person's individual
capacity.
If an employee receives funds from any outside organization for the
support of the costs of NIH activities, then NIH may accept the funds as a
gift to the agency and, by law, deposit them to the appropriate NIH gift
fund. Receipt and retention of funds by the employee may occur only if, as
part of an approved outside activity, they compensate the employee for
participation in that activity. Employees and managers should seek
guidance as necessary from the OGC to avoid the potential for conflict of
interest or other impropriety in the acceptance of funds from outside
sources.
NOTE: For additional information on certain prohibitions
or conflict of interest situations, see Chapter
2300-735-4 "Outside Work and Related Activities with Outside
Organizations" and NIH Manual Chapter 54204/6003-1 "NIH
Intramural Scientists as Principal Investigators on Grant
Applications and Contract Proposals".
9. Solicitation Prohibited
The OGC has concluded that, in permitting the acceptance of gifts, the
Congress did not intend to authorize the DHHS to solicit funds from the
private sector to augment the funds authorized by the Congress through the
appropriation process. While the gift acceptance authority does give the
NIH a mechanism to accept funds from outside sources, this authority does
not authorize the solicitation of funds. Therefore, NIH policy prohibits
employees, either directly or through another party, from requesting or
suggesting donations to the NIH or any of its components of funds or other
resources intended to support activities, except grant funds as authorized
by the Comptroller General in Decision B-255474 (April 3, 1995). (See
Appendix 4)
When an outside organization or individual expresses an unsolicited
interest in supporting NIH activities, an employee may provide information
on the authority of NIH to accept gifts and the procedures for offering
and acceptance of gifts. The OGC has developed an Information Fact Sheet
on Private Donations to the NIH which may be sent to potential donors (see
Appendix 6). Where the nature of the activity is such that the
employee cannot draw a clear distinction in order to inform the potential
donor about the existence of a gift fund (permissible), versus an active
solicitation (not permissible), the employee should seek case-by-case
guidance from the OGC. This prohibition on solicitation of gifts does not
preclude NIH employees from seeking outside collaboration for specific NIH
activities such as a particular research project or scientific conference,
as long as these activities constitute either permissible cosponsorship
between the NIH and the outside entity, grants, or a collaborative
research project under provisions of the FTTA.
F. Responsibilities
NIH officials are authorized by law or delegation of authority (see
NIH Manual Chapter 1130, Finance
#5 "Accept Gifts Under Section 231 of the PHS Act"), to
accept gifts within their respective areas of responsibility. In making decisions on acceptance of each gift,
as outlined in Section E.1.(A) and (B) above, NIH authorized
officials shall utilize Appendix 1, "The Gift Acceptance Description Form
and Validity Test Survey", accordingly. When applicable, Appendix 1 must be properly completed and signed by all appropriate
officials and maintained in the official files. (See Section E.1. of this chapter for additional
information.)
1. Office of the Director, NIH
The Director often receives letters containing checks designated for
specific ICs, and program areas in the Office of the Director. Letters
involving specific ICs or their programs will be forwarded to the
appropriate IC for response. The Deputy Director for Management, is
responsible for administering and managing the Gift Fund Program for all
gift fund activities. The Executive Secretariat assigns these gift
acceptance letters for direct reply and/or for signature by the DDM
depending on the amount of the gift. The DDM will receive a copy of all
letters with gift amounts of more than $100,000 for review. Gifts with a
value of more than $2 million must be accepted by the DDM.
2. Institutes and
Centers
a. The
IC Directors/Deputy Directors are responsible for accepting gifts within
their statutory or delegated authority (gifts valued at not more than $2
million), approving expenditures from gift funds, approving the amount
of funds and type of investments. The Deputy Directors for Intramural
and Extramural Research will receive a copy of all letters with gift
amounts of more than $100,000 from the respective institutes/centers for
reviewing purposes.
b. IC
Executive or Budget Officers are responsible for the transmittal of
monies and copies of letters from donors and acceptance letters to the
OFM, establishing required Common Account Numbers (CAN), and issuing
allowances related to the gift funds. Budget Officers will submit to the
Assistant Director for Finance/OFM a request to invest funds available
in excess of those projected to be obligated under their plan, or as
necessary during the year.
c. IC
Property Accountability Officers are responsible for consulting with the
NIH Property Accountability Officer, Office of Logistics and Acquisition
Operations/Division of Personal Property Services (DPPS) when outside
organizations propose gifts of personal property, to see that the
property management requirements are met, and that information on gifts
is provided for in the Property Management Information System. (See NIH Manual Chapter 26101-25-2, "Personal Property Management
Guide.")
This will permit the DPPS to create a basic record of the accountable
item. This notification shall include:
1) Description of the item,
including the manufacturer and model number; estimated value;
2) Accountable IC area which
will be receiving the item (custodial location code).
Upon receipt of donated property, the IC Property Accountability
Officer will submit to the NIH Property Management Officer and the IC
Property Custodial Officer a copy of the document accepting the gift.
The IC Property Custodial Officer and the IC Property Accountability
Officer shall contact the NIH Property Accountability Officer in the
DPPS to determine the appropriate data elements and method for recording
the transaction in the on-line Property Management Information System.
The data elements are as follows:
- Estimated value;
- Manufacturer's serial
number;
- Month and year item received;
- Physical location (building and room number);
- NIH decal number assigned to the
item.
3. Office of the General Counsel
The DHHS Office of the General Counsel provides guidance on legal
issues in the acceptance and administration of gifts, including gift
conditions, use of gift funds, and statutory authorities; negotiates with
attorneys representing potential donors or donors' estates; and
coordinates with the Assistant Special Counsel for Ethics on the interface
of general legal issues and issues of ethics.
4. Office of Financial Management
The Assistant Director for Finance, OFM, through:
a. The General Ledger,
Reports and Reconciliation Branch, will authorize investments requested
by ICs and communicate with the Department of the Treasury when to buy
and sell all investment orders.
b. CFO Activities Branch
is responsible for allotting funds to the proper gift fund account and
preparing status reports on a periodic basis. This Office will finalize
coordination and submission of the NIH Gift Fund Plan to Congress (when
required) and the issuance of Advice of Allotments.
5. Office of Logistics
and Acquisition Operations
The Director, OLAO through the DPPS, will assure compliance with the
limitation that "Offers of personal property may not be accepted if
the total costs associated with acceptance are expected to exceed the cost
of purchasing a similar item and the cost of normal care and
maintenance." (Delegations of Authority, Finance
05, Citation 3. (01/02/01))
a. Property received as a gift
will be added to the NIH property records. The same degree of custody
and control will be exercised over this property as is required of all
other Government-owned property.
b. As with other forms of
personal property, it will be the responsibility of the DPPS, to notify
OFM of changes in the status of property that should be reflected in the
General Ledger.
G. Procedures
1. Monetary Gifts
a. Within twenty workdays after
initial receipt of a monetary gift, the recipient IC must determine
whether to accept the gift and must notify the donor. (NOTE: This time
frame may be extended in cases where the decision on acceptance of a
gift is problematic (in this case, the Office of the General Counsel
should be consulted) or requires negotiation with the donor. This
practice should take place when either the Director, NIH, receives a
gift from a donor and has forwarded the gift to the IC or when an
employee receives a gift directly from a donor. In either of these
scenarios, the monetary gift, normally a check, should be safeguarded
(held) by either the IC Administrative Office or the OFM Travel,
Fellowship Pay and Cashier Section. Within five working days following a
favorable IC acceptance decision, an IC held check must be hand-carried
(Note: off-campus IC’s may deliver the checks by courier but
the same time frame is to be applied) along with an acceptance letter
and brief memorandum of transmittal to the OFM/CFO Activities Branch. If
the check has been held in the OFM Travel, Fellowship Pay and Cashier
Section, the IC must forward an acceptance letter and a brief memorandum
of transmittal to the OFM/CFO Activities Branch. The letter of
acceptance should say only that the gift is being deposited to the
"component's appropriate gift fund account" and state the
purpose for which the funds will be used. (Reference to a "Breast
Cancer Gift Fund" or an "Emphysema Gift Fund," for
example, is technically incorrect and, therefore, should not be used).
The OFM Travel, Fellowship Pay and Cashier Section, in turn, will then
deposit the money into the IC’s appropriate gift fund account,
"conditional" or "unconditional." Monetary gift
checks more than 90 days old will not be accepted by OFM for deposit and
will be returned by the recipient organization to the donor for
reissuing.
Acceptances must be in writing,
signed by a properly authorized official, state the purpose for which
the gift will be used, and copies of the acceptance letters must be
forwarded to the OFM and DDM as appropriate. (See
NIH
Correspondence Handbook or Appendix
2). If the gift is not accepted or the donor refuses to
accept NIH terms, any uncashed checks tendered by the donor will be
promptly returned to the donor. If the donor's check has already been
cashed, OFM will draw a refund check from the Treasury.
b. The
OGC and the Executive Secretariat are available to assist in preparing
acceptance letters. In the case of conditional monetary gifts, the
potential donor will be asked to agree in writing to the NIH requirement
that, upon the completion of the stipulated conditions, or where
completion of the stipulated conditions becomes impossible, any
remaining unobligated conditional funds will be transferred to the
component's unconditional gift fund account for the support of any other
objectives of the recipient component.
c. Excess
funds, if any, will not be returned to the donor. The letters of
acceptance shall include the condition required by subsection 1.b.,
above, and, if not previously agreed to, must request acknowledgment of
this condition by the donor. (This requirement is necessary so that NIH
financial records will not become cluttered with numerous sub-accounts
with small balances that cannot be spent or cleared from the accounting
records.)
2. Nonmonetary Gifts
a. Within twenty workdays after
the offer of a nonmonetary gift, the recipient IC must determine whether
to accept the gift and must notify the donor. Normally, for gifts other
than money, the donor should be thanked and advised that the donation
will be considered and that the donor will be advised later. This time
frame may be extended in cases where the decision on acceptance of a
gift is problematic (in that case, the OGC and the DPPS should be
consulted) or requires negotiation with the donor.
b. Generally, responsibility
for the administration of nonmonetary gifts rests with the DPPS;
therefore, that office must be advised of the proposed acceptance of all
nonmonetary gifts.
3. Investment of Gift Fund Monies
The appropriate delegated official will determine at least annually if
excess funds will not be used within a twelve-month period, usually the
fiscal year (FY). If it is determined that there are excess funds and the
amount of these funds is $50,000 or more, the official will request in
writing that the General Ledger, Reports and Reconciliation Branch, OFM,
invest the excess funds in interest bearing obligations of the United
States or as otherwise authorized by law. The official’s memorandum must
include the amount of funds to be invested, the source of funds, and any
recommendations regarding the Treasury bills, notes, or bonds to be
purchased. OFM will provide to the ICs quarterly status sheets for all
invested funds including amounts, dates of investment and maturity. Gift
funds that are invested and income from these investments retain the same
limitations as the original gifts. Upon liquidation of investments, the
monies must be returned to the same gift fund account to be used for the
benefit of the IC within the limits and restrictions of the original gift
or gifts.
4. Fund Control
Gift funds will be controlled by the same type of allotment or
allowance procedure used for appropriated funds. The CFO Activities
Branch, OFM, will issue an Advice of Allotment reflecting the availability
of funds for each IC. The IC will issue an Advice of Allowance to
authorize obligation of the funds. Gifts must be used for the purpose for
which they were offered and accepted. To ensure that this is done, the
allowance will serve as the control. Conditional gifts will have an
allowance established for each set of unique conditions. Unconditional
gifts within each IC may be controlled at the allowance level as desired
by the respective IC but, at a minimum, an allowance must be established
to identify funds for the various programs or research for which they were
offered and accepted (for example, sickle cell disease).
5. Official Entertainment
Gift funds may be expended for official
entertainment purposes, so long as this is consistent with the purposes of the
gift and NIH policy on entertainment. See NIH
Manual Chapter 1160-1, "Entertainment."
6. Other Than
Entertainment Expenses (e.g., Station Support Purchases)
Besides Official Travel shown in (7) below, gift funds may also be expended for other than official entertainment
purposes consistent with any restrictions imposed by the donor. NIH policy is that expenditures from gift funds for personal services, station support, including purchases of property, lab equipment, supplies,
and other items, and to support extramural grants and contract awards, are regulated the same as expenditures of appropriated funds.
7. Official Travel
Gift funds may be used to pay for necessary travel expenses, under the
same regulations and procedures as for travel supported by appropriated
funds for attendance at official receptions, award ceremonies,
conferences, and similar events. It is acceptable to pay travel expenses
for spouses or any other appropriate individual related by blood or
affinity to attend award ceremonies for honorees, because these
expenditures are in support of employee morale and benefit NIH in
accomplishing its mission.
8. Disposition of Prohibited Gifts
NIH may authorize disposition or return of prohibited gifts at
government expense. Written notification shall accompany all gift returns.
Employees may use penalty mail for the limited purpose of forwarding
reimbursements to donors. If a gift cannot be accepted, the following are
some possible alternatives:
- Return tangible items to the donor.
- Subject to requisition approval, pay the donor market value (retail
cost of an item or service of like quality; and where a ticket or an
invitation to an event, the printed face value of the ticket or the
amount suggested as a contribution or donation to gain entrance).
Destroy, share within the office, or donate to charity perishable items
only, subject to approval of a supervisor or department head. When the
gift is monetary, then the gift shall be forwarded to OFM Travel,
Fellowship Pay and Cashier Section, for safe-keeping (holding) pending
clearance and final disposition.
H. Limitations
- Gifts That May Not be Accepted
1. The Secretary's Delegation of
Authority states: "Offers of property shall not be accepted if the
total costs associated with acceptance are expected to exceed the cost of
purchasing a similar item and the cost of normal care and
maintenance." (Memorandum, Secretary to Assistant Secretary for
Health, "Delegations of Authority under Title V of the Public Health
Service Act, Miscellaneous" (12/9/82))
2. Subsection (a) of Section
231of the PHS Act states: ". . . no gift shall be accepted which is
conditioned upon any expenditure not to be met therefrom or from the
income thereof unless such expenditure has been approved by Act of
Congress."
3. Gifts may not be accepted if
conditions imposed by the donor are illegal, contrary to public policy,
burdensome, unreasonable to administer, are contrary to generally accepted
public standards, or would create a conflict of interest, or the
appearance of a conflict of interest to a reasonable person, which
conflict cannot be resolved satisfactorily by an ethics official.
4. Gifts may not
be accepted where they are tendered for the purpose of securing an
endorsement. Donors that are commercial organizations will be advised that
the acceptance of a gift does not constitute an endorsement. Nor may gifts
be accepted when the donor expresses, directly or indirectly, an
expectation of receiving a future benefit, such as a contract award, from
NIH.
5. Conditional gifts of real
property may not be accepted by NIH officials (see Section E.3.)
6. Gifts for Salary Support.
Gifts for the purpose of supporting or supplementing a federal employee’s
salary may not be accepted.
I. Waivers
The granting of requests for
exceptions to this policy shall be administered and approved by the office
of the DDM. Letters should include a complete description of the item(s)
being waived, justification or reason for the request, cost(s), other
alternatives considered, time frame(s) as applicable, what will happen if an
exception is not granted, and approval of the appropriate delegated
official. The Gift
Acceptance Validity Survey in Appendix 1, should
be consulted as a reference when preparing a request. See Appendix 3 for sample letter format.
J.
Delegations
of Authority
In order that OFM can expeditiously effect the transfer of a deposit from
the suspense account to the appropriate gift fund account, it is necessary
that a copy of any delegation, or, when applicable, redelegation of the IC
Director/Deputy Director’s authority, made pursuant to NIH Manual Chapter
1130, Delegations of Authority, Finance
No. 5 "Accept Gifts Under Section 231 of the PHS Act", be
provided to the General Ledger, Reports and Reconciliation Branch, OFM. OFM
will validate the name of the accepting official and determine if acceptance
is within the delegation of authority.
K. Wills and Trusts
Copies of wills and trusts naming NIH or an IC as beneficiary and letters
of transmittal will be forwarded to the Office of the General Counsel. The
receiving IC will be responsible for acknowledging receipt of the will or
trust promptly and notifying OFM, CFO Activities Branch, when the estate has
been settled. Since any interest NIH might receive may be contingent or
subject to prior interests, or could be revoked during the life of the
person making the bequest, no entry will be made in the accounts. Proceeds
from either wills or trusts, either revocable or irrevocable, will not be
entered in the accounts until realized.
L. Records Retention
and Disposal
All records (e-mail and non-e-mail) pertaining to this chapter must be
retained and disposed of under the authority of NIH Manual
1743, "Keeping and Destroying Records, NIH Records Control
Schedule, "Appendix 1, Items 1100-M-1 and 1900-F".
NIH e-mail messages (messages, including attachments, that are created on
NIH computer systems or transmitted over NIH networks) that are evidence of
the activities of the agency or have informational value are considered
federal records. These records must be maintained in accordance with current
NIH Records Management guidelines. Contact your IC Records Officer for
additional information.
All e-mail messages are considered Government property, and, if requested
for a legitimate Government purpose, must be provided to the requester.
Employees' supervisors, NIH staff conducting official reviews or
investigations, and the Office of Inspector General may request access to or
copies of the e-mail messages. E-mail messages must also be provided to
Congressional oversight committees if requested and are subject to Freedom
of Information Act requests. Since most e-mail systems have back-up files
that are retained for significant periods of time, e-mail messages and
attachments are likely to be retrievable from a back-up file after they have
been deleted from an individual's computer. The back-up files are subject to
the same requests as the original messages.
M.
Management Controls
In accordance with NIH
Manual Chapter 1750 "NIH Management Control Program", the
OD/Office of Financial Management will have oversight authority on all
monetary gifts. OFM will monitor and record receipt of all monetary gifts
through the ADB Fund Control Module which feeds into the Central Accounting
System and reflects data as it appears on the PHS-114-1 "Advice of
Allotment" Form for each IC. OFM will prepare corresponding financial
report data on an as needed basis.
OD/OLAO/DPPS will maintain oversight authority on nonmonetary gifts of
accountable personal property through periodic physical inventories and
updates to the records in the PMIS and through its normal practices of
management control over personal property as outlined in the Personal
Property Management Guide.
Appendix
1: The Gift Acceptance Description Form and Validity Test Survey
Section A: Gift Acceptance Description Form
IC Point of Contact (Name):
Telephone:
Fax:
______________________________________________________________________
Please Print:
Name of Donor:
Donor’s Address:
Street:
City:
State:
Zip Code:
Donor Point of Contact (Name):
Telephone:
Fax:
______________________________________________________________________
Category of Gift:
Check as applicable:
| ___ Monetary |
___ Nonmonetary |
| ___ Conditional |
___ Unconditional |
| ___ Personal Property |
___ Real Property |
Amount/value of gift: _________
Description and purpose of gift including any donor imposed restrictions or conditions:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Section B: Validity Test Survey
This survey will help to determine whether NIH is in compliance with the statutory and delegated authorities to accept gifts from the private sector, conditional and unconditional, monetary and nonmonetary, and whether there may be any potential for a conflict of interest.
1. Will acceptance of the gift, to a reasonable person, compromise the integrity of, or the appearance of the integrity of a Governmental program or of any official involved in that program? *
2. Is there an actual or apparent conflict of interest?
3. Is there any matter pending before the NIH that would affect the interest of the donor, e.g., approval of a grant or award of a contract? If so, what? Indicate the nature of the matter.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
4. Does the NIH control activity in which the donors have an interest or the potential for an interest, such as CRADAs, research and development or other contract programs, grant programs, or clinical trials? If so, indicate which activities.
__________________________________________________________________
__________________________________________________________________
5. Will the amount/value, or the nature of the gift alone raise a significant concern?
6. Is the gift being offered for endorsement purposes?
7. Does the gift meet generally acceptable public standards?
8. Is the gift reasonable to administer?
9. Will the principal beneficiary of the gift be the NIH?
10. Are there donor imposed restrictions or conditions?
11. Is the gift being offered to the NIH to support the activities of a specific individual employee?
12. What is the practical impact of the gift within the NIH or IC?
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
* NOTE: If the gift is from a determined “prohibited source” as defined in Section E.1. of this manual chapter, please ensure that you follow the applicable procedures outlined in that section.
If your answer was “Yes” to Question Nos. 1 - 6; or “No” to Question Nos. 7 – 9, careful scrutiny should be given to any unfavorable responses and the Office of the General Counsel should be consulted for advice.
Signatures:
|
|
| ______________________________ |
_______________________________ |
| IC Recommending Official |
Date |
| ______________________________ |
_______________________________ |
| IC Ethics Official |
Date |
| ______________________________ |
_______________________________ |
| IC Authorizing Official (See NIH Manual 1130, Finance No. 5) |
Date |
|
