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Subpart A-General Provisions

§ 170.1 Definitions.

(a) "Act" means Public Law 88-204, the Higher Education Facilities Act of 1963, 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 (such as storage closets, projection booths, balance rooms, dark rooms, locker and shower rooms, and private toilets) which adjoin and are used in conjunction with such rooms or areas. A room intended and equipped for any such purposes should be counted in the appropriate category regardless of the building (e.g., administration building, library building, or classroom building) in which it is located.

(2) "Instruction-related facilities" 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 (such as storage rooms, private toilets, or control rooms) which adjoin and are used in conjunction with such

rooms or areas.

(3) "Related supporting facilities" means all other areas and facilities which are necessary for the utilization, operation and maintenance of "instructional and library facilities" or "instructionrelated facilities," as defined above. This term includes building service areas 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 two aforementioned categories rather than other, nonacademic, facilities such as dormitories, chapels, or stadiums, or facilities which are excluded from the definition of eligible academic facilities because they are used by ineligible schools or departments.

(c) "Advisory Committee on Graduate Education" means that committee established by section 203 of the Act.

(d) "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.

(e) "Branch campus" means a campus of an institution of higher education which is located in a community different from that in which its parent institution is located. A campus shall not be considered to be located in a community different from that of its parent institution unless it is located beyond a reasonable commuting distance from the parent institution.

(f) "Capacity/enrollment ratio" 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."

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

(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. For purposes of construc

tion applications under the act, equipment is further subdivided into three categories: built-in building service systems, other built-in equipment, and initial movable equipment.

(1) "Built-in building service systems" means utilities and other machinery necessary for the effective functioning of a building or uniformly distributed through all portions of the building, such as heating and air conditioning systems and machinery, automatic firecontrol systems, public address, time and communication systems.

(2) "Other built-in equipment” means all items other than "built-in building service systems," which are permanently fastened to the building or the grounds, such as: laboratory tables connected permanently to plumbing, and other builtin specialized laboratory equipment; built-in audiovisual systems in individual classrooms; chalkboards, bulletin boards, and display cabinets fixed to walls; built-in library stacks and counters; carpeting installed in lieu of other finished flooring; and draperies installed in lieu of other light control devices.

(3) "Initial movable equipment" means all items of initial equipment other than built-in equipment, which are necessary and appropriate for the functioning of a particular academic facility for its specific purpose, and will be used solely or primarily in the rooms or areas covered by an application under the Act (as distinguished from items which are appropriate for academic purposes but are not to be used principally within the rooms included in the project). The term does not include books, curricular or program materials, carpets or drapes, or any items of current operating expense such as fuel, supplies, component items such as vacuum tubes which have no function apart from other items in which they are to be incorporated, or manufactured items which are consumed in use or have a short useful life.

(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.

(2) For purposes of reporting undergraduate enrollment trends and projections in connection with applications for financial assistance for individual institutions under Title I of the Act, the "fulltime 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, "fulltime equivalent number of students" for application purposes shall be the total number of full-time students plus onethird of the number of part-time students. For the purposes of this definition, full-time students are those carrying at least 75 percent of a normal student-hour load.

(j) "Institution of higher education," or "institution," means an educational institution in any State which meets the requirements set forth in section 401(f) of the Act. The term "educational institution" limits the scope of this definition to establishments at which teaching is conducted.

(k) "Project" means the facilities (all or a portion of one or more structures) which are eligible for grant or loan assistance under a particular title of the Act, and for which grant or loan assistance is requested in a specific grant or loan application. Only facilities located on the same campus and for which the basic construction contracts are to be awarded at approximately the same time may be included in the same project application.

(1) "State commission" means the State agency designated or established in each State pursuant to section 105(a) of the Act.

(m) "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 shall review projects proposed by applicants in the State for Federal assistance under Title I of the Act, and shall 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.

84-006-72-20

§ 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) Construction contracts for the construction covered by the application will provide that 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 Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5), and will receive overtime compensation in accordance with and subject to the provisions of the Contract Work Hours Standards Act (Public Law 87-581), unless a waiver is granted by the Commissioner pursuant to section 403(a) of the Act; and

(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.

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

(a) All contracting for new construction, and all orders for the acquisition and installation of built-in equipment not covered by general construction contracts, shall be on a fixed price basis. Contracts for new construction and for acquisition and installation of built-in equipment shall be awarded on the basis of competitive bidding obtained by public advertising (Provided, however, That for applications approved prior to the publication of these regulations, the competitive bidding requirement may be satisfied by obtaining three or more bids).

(b) Except where the Commissioner specifically approves alternative contracting procedures due to special problems or conditions, all contracting for

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(a) State commissions. Each State plan shall contain specific information regarding fiscal control and fund accounting procedures, as required by the Commissioner to insure proper disbursement of and accounting for Federal funds which may be paid to the State commission for expenses for the proper and efficient administration of the State plan.

(b) Institutions, cooperative graduate center boards, and higher education building agencies. Applicants and, where applicable, their building agencies, shall maintain adequate and separate accounting and fiscal records and accounts of all funds provided from any source to pay the cost of construction (including necessary site acquisition and equipment) covered by the grant or loan application, and audit or inspection of such records by authorized representatives of the Federal Government shall be permitted and facilitated by applicants at any reasonable time.

§ 170.6 Retention of records.

(a) State commissions. (1) Accounts and documents supporting expenditures for expenses of State commissions shall be maintained until the State commission is notified of completion of Federal audits for the Federal fiscal year concerned.

(2) Where the State commission purchases equipment items costing $50 or more per unit, for use in the administration of the State plan, inventories and other records supporting accountability for such items shall be maintained until the State commission is notified of the completion of the review and audit by the Department of Health, Education, and Welfare covering the disposition of such equipment.

(3) State commissions shall establish a complete case file on each Title I 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 the application is taken by the State commission. In addition, each State commission shall maintain a full record of all hearings on appeals pursuant to section 105(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 date and shall retain such records for at least 3 years.

(b) Institutions, cooperative graduate center boards, and higher education building agencies. All accounting records relating to approved projects, including bank deposit slips, cancelled 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 or until the applicant is notified of completion of the Government's audit, whichever is later. $170.7 Determination of costs eligible for Federal participation.

Determination of costs eligible for Federal participation will be based for each individual project, whether application is made under Title I, II, or III of the Act, upon: (1) The date on which a I given cost item was incurred or contracted for; (2) whether the cost is an allowable "development cost," as defined in section 401(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.

(a) In connection with a Title I grant for an institution other than a public community college or a public technical institute, awarded prior to July 1, 1966, for structures, or portions thereof, which are not especially designed for instruction or research in the natural or physical sciences, mathematics, modern foreign languages, or engineering, or for use as a library-any cost which was incurred before, or under a contract entered into before, November 8, 1965, shall be excluded from the eligible development cost.

(b) For a project for which an application was filed for the first time (under any title of the Act) on or after April 1, 1965, and prior to July 1, 1966, the following shall be excluded from the eligible development cost:

(1) Any cost for movable equipment incurred before the date of receipt by either the Office of Education or a State commission of an application covering the project; and

(2) Any cost incurred under a construction contract or a contract for the purchase and installation of built-in equipment which did not, when let, meet the requirements set forth in sections 170.2 and 170.3.

(c) For a project for which an application is filed for the first time (under any title of the Act) on or after July 1, 1966, the following shall be excluded from the eligible development cost:

(1) Any cost for movable equipment incurred before the date of receipt by either the Office of Education or a State commission of an application covering the project; and

(2) Except as provided for in paragraph (d) of this section, any cost incurred under a construction contract or a contract for the purchase and installation of built-in equipment which was entered into before the date or concurrence by the Commissioner in the award of such contract. While such concurrence normally will be given only after a grant or loan for a project has been approved, circumstances occasionally may warrant the beginning of construction in advance of grant or loan approval in order to meet scheduled needs for expansion of enrollment capacity. In any such case, where an application for a project has been filed paragraph unless the applicant produces evidence that the provisions of §§ 170.2, 170.3, and 170.4 have been met and has satisfied the Commissioner that the reasons for the applicant not having secured the Commissioner's advance concurrence as provided for in § 170.7(c) (2) were not due to any unwillingness on the part of the applicant to meet such conditions. [31 F.R. 13221, Oct. 13, 1966, as amended at 37 F.R. 2883, Feb. 9, 1972]

and the applicant can justify the necessity of beginning construction in advance of the award of the grant or approval of the loan, the Commissioner may, after an appropriate review of the bidding documents, authorize bidding and concur in the award of the contract. However, such concurrence shall in no way provide any advantage for the project in priority determinations by a State commission under Title I and shall in no way commit the Commissioner subsequently to approve a grant or loan under any title for any such application.

(d) With respect to applications for annual interest grants submitted under Subpart E, where the construction contract or contract for the purchase or installation of built-in equipment was entered into on or before July 1, 1966, an exception to the general rule set forth in paragraph (c) (2) of this section may be made by the Commissioner in unusual cases where he finds that the applicant is financially hard pressed and has secured only short-term (not in excess of 5 years) financing of the academic facilities with respect to which the annual interest grant is requested, which short-term financing must be replaced in order to reduce the financial hardships, and where such academic facilities provide significant additional enrollment capacity for disadvantaged students. In making the foregoing findings the Commissioner will take into account:

(1) The number of disadvantaged students enrolled by the college and the percentage of the total enrollment represented by that number.

(2) The number of low-income families residing in the area served by the college and the average family income in that area,

(3) The immediacy of the college's need to obtain new financing, the availability of financing from other sources, and the effect of the burden of the present and proposed new financing on the college's ability to continue serving disadvantaged students,

(4) The number of disadvantaged students who benefit from the facilities for which the college is seeking financing, and

(5) The extent of programs offered by the college to assist disadvantaged students in taking maximum advantage of their education opportunity.

In no event will an exception be made by the Commissioner pursuant to this

Subpart B-Grants for Construction

of Academic Facilities

§ 170.11 Institutional eligibility for grants under section 103 of the Act. To qualify for a grant from funds allotted pursuant to section 103 of the Act, an institution or a branch campus of an institution shall meet the requirements specified in sections 401(f) and 401(g) of the Act.

(a) An institution which is not accredited by a nationally recognized accrediting agency or association listed pursuant to section 401(f) of the Act may qualify, alternatively, by obtaining a certification from the Commissioner (dated no earlier than two years prior to the date of filing of the application for a grant) that the institution meets requirements set forth in subsection 401 (f) (5) of the Act.

(b) An institution or a branch campus of an institution shall be determined to be organized and administered principally to provide a 2-year program as specified in section 401(g) of the Act, if:

(1) More than 50 percent of the fulltime equivalent student enrollment at the institution or branch campus is in 2-year programs of the types specified in section 401(g) of the Act; and

(2) The application for a grant pursuant to section 103 of the Act contains a statement that the institution or branch campus is organized and administered principally to provide such programs, and such statement is supported by information available to or obtained by the State commission.

§ 170.12 Institutional eligibility for grants under section 104 of the Act. To qualify for a grant from funds allotted pursuant to section 104 of the Act, an institution shall meet requirements specified in section 401(f) of the Act. An institution which is not accredited by a nationally recognized accrediting agency or association listed pursuant to

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