receipt of a written request therefor any amounts found by the Commissioner to be due. Such period may be extended at the discretion of the Commissioner upon the written request of the recipient. (20 U.S.C. 1232c (b) (3); 31 U.S.C. 628.)

§ 167.24 Service contracts.

The grantee may enter into contracts or agreements for the provision of part of the services to be provided under the grant by other appropriate public or private agencies or institutions. Such contract or agreement shall incorporate the regulations of this part and other applicable Federal requirements, describe the services to be provided for the agency or institution, and contain provisions assuring that the grantee will retain supervision and administrative control over the provision of services under the contract or agreement. Services to be provided by contract or agreement pursuant to this section shall be specified in the program or project proposal or in an amendment thereto, and the proposed contract or agreement shall be submitted to the Commissioner for prior approval. (20 U.S.C. 1208) § 167.25

Changes in key personnel.

If for any reason it becomes necessary to substitute the project director or other key professional staff listed in the program or project proposal, the grantee shall in writing notify the Commissioner of such substitution. Such written notification shall include the name and qualifications of the successor. (20 U.S.C. 1208) § 167.26

Dual compensation.

If a program or project staff member or consultant is involved simultaneously in two or more programs or projects supported by Federal funds either under this part or otherwise, he may not be compensated for more than 100 percent of his time from Federal funds during any part of the period of dual involvement. The grantee shall not use any grant funds or funds from other sources to pay a fee to, or travel expenses of, employees of the U.S. Office of Education for lectures, attending program or project functions, or any other activities in connection with the grant. (20 U.S.C. 1208) § 167.27

Interest on grants.

Interest earned on grants made under this part to grantees other than States shall be credited to the United States.

Requirement for compliance with labor standards and equal opportunity requirements in all construction contracts.

170.3 Requirement for competitive bidding on contracts for construction and for acquisition and installation of built-in equipment.

170.4 170.5

Requirement for economical methods of purchase of initial equipment. Fiscal control and fund accounting procedures.

170.6 Federal audits and retention of records.

170.7 Determination of costs eligible for Federal participation.

170.8 Compliance with other federally assisted construction requirements.

170.9 Urgency of need for projects of public institutions.

Subpart B-Grants for Construction of Academic Facilities

170.11 Institutional eligibility for grants under section 702 of the Act. 170.12 Institutional eligibility for grants under section 703 of the Act. Conditions for grant approval. Submission and processing of Title VII A Applications.

170.13 170.14

170.15 Criteria for standards and methods to determine relative priorities of eligible projects.

170.16 Criteria for standards and methods to determine Federal shares of eligible projects.

170.17 170.18

170.19

State plans.

Adjustments in amount of Federal share.

Payment of grant funds on approved projects.

Subpart C-Grants for Construction of Graduate Academic Facilities

170.76 Approval of financing plans.

170.77 Evidence of lowest possible cost of loan.

170.78 Annual interest grant agreement. 170.79 Payment of annual interest grants. 170.80 Reduction of grant where refinancing produces lower cost.

170.81 Conversion of direct loans to annual interest grants.

170.82 Priority considerations; closing dates. 170.83 Preceding provisions not exhaustive of authority of Government.

AUTHORITY: Secs. 701-782, 86 Stat. 288-303; 20 U.S.C. 1132a-1132e.

SOURCES: 38 FR 14096, May 29, 1973, unless otherwise noted.

Subpart A-General Provisions

(a) "Act" means Public Law 89-329, the Higher Education Act of 1965, as amended. Unless otherwise indicated, title references are to titles of the Act. All terms defined in the Act shall have the same meaning as given them in the Act. All references to sections are to sections of this part, unless otherwise indicated.

(b) "Academic facilities," as defined in the Act, are further defined and subdivided into the following categories:

(1) "Instructional and library facilities" means all rooms or areas used regularly for instruction of students, for faculty offices, or for library purposes, and service areas which adjoin and are

used in connection with such rooms or areas.

facilities"

(2) "Instruction-related means all rooms or areas other than instructional and library facilities which are used for purposes related to the instruction of students, research, or for the general administration of the educational or research programs of an institution of higher education and service areas which adjoin and are used in conjunction with such rooms or areas.

au

(3) "Health-care facilities," as thorized under Titles VII A and VII C, means infirmaries and all other rooms or areas designed to be used for medical examination or treatment of students and institutional personnel, and service areas which directly serve such rooms or areas.

(4) "Related supporting facilities" means all other areas and facilities which are necessary for the utilization, operation, and maintenance of "instructional and library facilities," "instructionrelated facilities," or "health care facilities," as defined above. This term includes building service and circulation areas and central maintenance and utility facilities which serve more than one building, to the degree that such central facilities are designed and used to serve academic facilities of the aforementioned categories, rather than other, nonacademic facilities such as dormitories, chapels, stadiums, or facilities which are excluded by statute from the definition of eligible academic facilities because they are used by ineligible schools or departments.

(20 U.S.C. 1132e-1.)

(c) "Assignable area" means square feet of area in facilities which are designed and available for assignment to specific functional purposes (such as instruction, research, and administration, and including noneligible purposes such as student sleeping rooms, apartments, or chapel rooms). Areas used for general circulation within the building, for public washrooms, for building maintenance and custodial services, or in central maintenance and utility facilities which exist only to support the operation and utilization of other structures on the campus and which are not available for assignment to other specific functional purposes, as illustrated above, shall be classified as nonassignable area. (20 U.S.C. 1132e-1.)

means the ratio of (1) the square feet of assignable area of instructional and library facilities as defined in paragraph (b)(1) of this section to (2) the total student clock-hour enrollment, at a particular campus of an institution. For purposes of this definition, "student clock-hour enrollment" means the aggregate clock hours (sometimes called contact hours) per week in classes or supervised laboratory or shop work for which all resident students (i.e., students enrolled for credit courses on the campus) are enrolled as of a particular date. Where formally established independent study programs exist, systematically determined equivalents of class or laboratory hours may be included under "student clock-hour enrollment." (20 U.S.C. 1132a-4.)

(f) "Commissioner" means the U.S. Commissioner of Education or his designee.

(20 U.S.C. 1221.)

(g) "Developing institution" means an eligible institution of higher education which has the desire and potential to make a substantial contribution to the higher education resources of our Nation but which for financial and other reasons is struggling for survival and is isolated from the main currents of academic life.

(20 U.S.C. 1051.)

(h) "Equipment" means manufactured items which have an extended useful life and are not consumed in use and which have an identity and function which are not lost through incorporation into a different or more complex unit or substance. Equipment is further subdivided into two categories: Built-in equipment and initial equipment. (1) "Built-in equipment" means equipment which is a permanent part of the structure.

(2) "Initial equipment" means all items of equipment other than built-in equipment, which are necessary and appropriate for the initial functioning of

a particular academic facility for its specific purpose. No equipment shall be considered as initial equipment unless it has been acquired or contracted for prior to the date on which the facility is first used for education of students.

(20 U.S.C. 1132e-1(2).)

(i) "Full-time equivalent number of students" means:

(1) For purposes of determining State allotments, the number of full-time students enrolled in programs which consist wholly or principally of work normally creditable towards a bachelor's or higher degree plus one-third of the number of part-time students enrolled in such programs, plus 40 percent of the number of students enrolled in programs which are not chiefly transferable towards a bachelor's or higher degree plus 28 percent of the remaining number of such students. Student enrollment figures for each fiscal year for the purposes of this computation shall be those contained in the most recent Office of Education survey containing data on opening fall enrollments in higher education.

(-20 U.S.C. 1132a-1, 1132a-2.)

(2) For purposes of reporting undergraduate enrollment trends and projections in connection with applications for financial assistance for individual institutions under Title VII A of the Act, the "full-time equivalent number of students" may be defined for each State by the State commission by specific State plan provision. In the absence of such a definition in the applicable State plan, "full-time equivalent number of students" for application purposes shall be the total number of full-time students plus one-third of the number of parttime students. For the purpose of this definition, full-time students are those carrying at least 75 percent of a normal student-hour load.

(20 U.S.C. 1132a-4.)

(j) "Institution of higher education, or institution," means only so much of an educational institution in any State as meets the requirements set forth in section 1201(a) of the Act. The term "educational institution" limits the scope of this definition to establishments at which teaching is conducted. (20 U.S.C. 1141.)

(k) "Project" means the facilities (all or a portion of one or more structures) which are eligible for grant or loan as

sistance under a particular title of the Act, and for which grant or loan assistance is requested in a specific grant For loan application. Only facilities to be part of a unified construction activity and to be constructed on the same campus may be included in the same project application. (20 U.S.C. 1132e-1(2).)

(1) "Secretary" means the Secretary of Health, Education, and Welfare or his designee.

(m) "State commission" means the State agency designated or established in each State which is broadly representative of the public and of institutions of higher education in that State. (20 U.S.C. 1132a-2.)

(n) "State plan" means the document submitted by a State commission and approved by the Commissioner, which sets forth the standards, methods, and administrative procedures whereby the State Commission will review projects proposed by applicants in the State for Federal assistance under Title VII A of the Act, and will determine and recommend the relative priority of each such project and the Federal share of the costs eligible for Federal financial participation for each such project. (20 U.S.C. 1132a-3 (a).)

$ 170.2 Requirement for compliance with labor standards and equal employment opportunity requirements in all construction contracts.

The Commissioner shall not approve any application for a grant or loan under the act except upon adequate assurance that:

(a) All laborers and mechanics employed by contractors or subcontractors in the performance of work on construction assisted by such grant or loan will be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with the DavisBacon Act, as amended.

(20 U.S.C. 1232b)

(b) All applicable provisions for equal opportunity in employment, pursuant to Executive Order 11246, will be included in all construction contracts covered by the application, and all other requirements, imposed by or pursuant to that Executive order, will be complied with. Executive Order 11246, as amended by Executive Order 11375.

con

(b) Except where the Commissioner specifically approves alternative tracting procedures due to special problems or conditions, all contracting for rehabilitation, renovation, remodeling, conversion, or improvement of existing structures shall be undertaken in accordance with the provisions of paragraph (a) of this section.

(c) Owner-furnished material or equipment may be procured in accordance with the procedures set out in § 170.4.

(d) The approval of the Commissioner must be obtained both before advertising for or soliciting bids and before awarding any contract covered under this section. Such approval will be given only after Federal assistance has been approved for the facility by an appropriate Federal agency.

(20 U.S.C. 1132a–6(a) (2) (F).) § 170.4 Requirement for

economical methods of purchase of initial equip

ment.

All initial equipment, the cost of which is charged to a project covered by a grant or loan application under the Act, shall be procured in accordance with one of the following methods: (a) Open competitive bidding, either through public advertising or the solicitation of three or more bids, with contract award to be made to the lowest qualified bidder whose bid is responsive to the bid invitation; (b) procurement under existing contracts entered into by competitive means; (c) methods prescribed by State or local laws. An alternative to the methods cited above may be approved by the Commissioner if, in advance of procurement, the demonstrates applicant satisfactorily

that such method is consistent with sound business practice. (20 U.S.C. 1132a–6(a) (2) (F).)

(a) Federal Audits: The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access for the purpose of audit and examination to any books, documents, papers, and records of the State commissions, institutions, cooperative graduate center boards, and higher education building agencies, which are pertinent to the program. (20 U.S.C. 1232e.)

(b) State commissions:

(1) Accounts and documents supporting expenditures of Federal funds by State commissions shall be maintained for a period of 3 years following the year in which the expenditures were made. The records shall be retained beyond the 3-year period if audit findings have not been resolved.

(2) Where the State commission purchases nonexpendable equipment items with Federal funds, inventories and other records supporting accountability for such items shall be maintained for a period of 3 years following final disposition of the equipment.

(3) State commissions shall establish a complete case file on each title VII-A application received; inform applicants of official actions and determinations by

letter or similar type of correspondence, and shall retain records regarding each case for at least 2 years after final action with respect to any such application. In addition, each State commission shall maintain a full record of all hearings on appeals pursuant to section 704 (a) (5) of the Act, and all proceedings by which it establishes relative priorities and recommended Federal shares for eligible projects considered as of each specified closing data and shall retain such records for at least 3 years.

(20 U.S.C. 1132a–3(a) (b).)

(c) "Institutions, cooperative graduate center boards, and higher education building agencies." All accounting records relating to approved projects, including bank deposit slips, contract payrolls, canceled checks and other supporting documents, purchase orders and contract awards (or microfilm copies thereof), shall be retained intact by the applicant and where applicable, by the applicant's building agency, for audit or inspection by authorized representatives of the Federal Government for a period of 3 years after completion of the project. (20 U.S.C. 1232c.)

§ 170.7 Determination of costs eligible for Federal participation.

(a) Determination of costs eligible for Federal participation will be based for each individual project, whether application is made under title VII-A, VII-B, or VII-C of the Act, upon: (1) The date on which a given cost item was incurred or contracted for; (2) whether the cost is an allowable "development cost," as defined in section 782 (c) of the Act, and has been incurred in accordance with the requirements set forth in these regulations; (3) the portion of the proposed facility which is eligible under the type of assistance for which the application is submitted; and (4) the amount of any financial assistance under any other Federal program which the applicant has obtained or is assured of obtaining for the project.

(b) For a project for which an application is filed for the first time under any program of the Act on or after July 1, 1972, the following shall be excluded from the eligible development cost:

(1) Any cost for the acquisition of land which was incurred more than 2 years prior to the date an application is filed; (2) Any cost for the acquisition of an existing structure incurred more than 1