| (15) Any of the conditions identified in 2 CFR §200.207
which may include but are not limited to requiring additional, more
detailed financial reports; requiring additional project monitoring;
or establishing additional prior approvals. If such conditions are
utilized, the Department will adhere to the notification requirements
noted in 2 CFR §200.207(b).
(16) Applicant is required to have qualified personnel
or a qualified third party perform an assessment of its operations
and/or processes and complete the recommended actions of the reviewer
on or before a specified deadline.
(17) Applicant is required to have qualified personnel
or a qualified third party performs DOE required Quality Control Inspections
of 5% of its Units on a quarterly basis for a period of one year,
and promptly repair any deficiencies. Different Units must be selected
every quarter. Evidence of inspections and corrections must be submitted
upon request.
(18) Applicant is required to provide evidence that
reserves for physical repairs are fully funded as required by §10.404
of this title (relating to Replacement Reserves).
(19) In the case of a Development being funded with
direct Grant funds (where an ongoing compliance agreement is a requirement)
or Loan funds, Applicant is required to provide evidence of invoices
and a lien waiver from the contractor, subcontractor, materials supplier,
equipment lessor or other party to the construction project stating
they have received payment and waive any future lien rights to the
property for the amount paid at the time of every draw request submitted.
(e) Failure to meet conditions.
(1) The Executive Director may, for good cause and
as limited by federal commitment, expenditure, or other deadlines,
grant one extension to a deadline specified in a condition, with no
fee required, for up to six months, if requested prior to the deadline.
Any subsequent extension, or extensions requested after the deadline,
must be approved by the Board.
(2) If any condition agreed upon by the Applicant and
imposed by the Board is not met as determined by the evidence submitted
(or lack thereof) when requested, the Applicant may be referred to
the Enforcement Committee for debarment.
(f) Dispute of Recommendations or Compliance Recommendations
for 4% Applications Eligible for Administrative Approval.
(1) The Appeal provisions in §1.7 of this title
(relating to Appeals Process), relating to the appeals of a staff
decision to the Executive Director, are not applicable.
(2) If an Applicant does not agree with any of the
following items, an Applicant or potential Subrecipient of an award
may file a dispute that may be considered by Compliance, program area,
or underwriting staff, (as applicable) or may be presented to the
Board without further Department consideration consistent with paragraph
(3) of this subsection.
(A) Their category as determined under §1.301(f)
of this subchapter;
(B) Any conditions proposed by the program area, underwriting
or Compliance; or
(C) A negative recommendation by the program area,
underwriting or Compliance.
(3) Prior to the Board meeting at which the award recommendation
is scheduled to be made, or within seven days of the notification
of Compliance Conditions for 4% Application Eligible for Administrative
Approval an Applicant or potential Subrecipient may submit to the
Department (to the attention of Compliance staff), their Dispute detailing:
(A) The condition or determination with which the Applicant
or potential Subrecipient disagrees;
(B) The reason(s) why the Applicant/potential Subrecipient
disagrees with program, underwriting, or Compliance's recommendation
or conditions;
(C) If the Dispute relates to conditions, any suggested
alternate condition language;
(D) If the Dispute relates to a negative recommendation,
any suggested conditions that the Applicant believes would allow a
positive recommendation to be made; and
(E) Any supporting documentation not already submitted
to the Department.
(4) An Applicant must file a written Dispute not later
than the seventh calendar day after notice recommendation of denial
or award with conditions has been provided. The Dispute must include
any materials that the Applicant wishes Department staff and/or the
Board to consider. An Applicant may request to meet with Department
staff and staff is not obligated to meet with the Applicant.
(5) Department staff is not required to consider a
Dispute prior to making its recommendation to the Board.
(6) If an Applicant proposes alternative conditions
staff may provide the Board with a recommendation to accept, reject,
or modify such proposed alternative conditions.
(7) A Dispute will be included on the Board agenda
if received at least seven calendar days prior to the required posting
date of that agenda. If the Applicant desires to submit additional
materials for Board consideration, it may provide the Department with
such materials, provided in pdf form, to be included in the presentation
of the matter to the Board if those materials are provided not later
than close of business of the fifth calendar day before the date on
which notice of the relevant Board meeting materials must be posted,
allowing staff sufficient time to review the Applicant's materials
and prepare a presentation to the Board reflecting staff's assessment
and recommendation. The agenda item will include the materials provided
by the Applicant and may include a staff response to the dispute and/or
materials. It is within the Board chair's discretion whether or not
to allow an applicant to supplement its response. An Applicant who
wishes to provide supplemental materials at the time of the Board
meeting must comply with the requirements of §1.10 of this chapter
(relating to Public Comment Procedures). There is no assurance the
Board chair will permit the submission, inclusion, or consideration
of any such supplemental materials.
(8) The Board will make reasonable efforts to accommodate
properly and timely filed Disputes under this subsection.
(g) Board Discretion. Subject to limitations in federal
statute or regulation or in TxGMS, the Board has the discretion to
accept, reject, or modify any recommendations in response to a recommendation
for an award or in response to a Dispute. The Board may impose other
conditions not noted or contemplated in this rule as recommended by
the Department, or as requested by the Applicant; in such cases the
conditions noted will have the force and effect of an order of the
Board.
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