Latest update on the TRO addressing the DOD indirect cost cap

A message from Vice President for Research and Innovation Vassilis L. Syrmos in an email dated June 20:

Dear UH Research Community,

Here is another important update on the Temporary Restraining Order (TRO) issued to address the Department of Defense (DOD) 15% indirect cost cap. As a member of the Association of Public & Land-Grant Universities, who was a party to the lawsuit that resulted in the TRO, UH will be closely following their advice as follows when communicating with DOD:

“DOD has now posted the rate cap policy online, along with a notice of our TRO.  See here: https://urldefense.com/v3/__https://www.cto.mil/notice-indirect-cost-rates/__;!!PvDODwlR4mBZyAb0!TZVtUex1j_Iqaj9KpqcKu0_dCotSi6SfGX3lzoB7Xu4TmSrhQnQq4pGL3jhVDEd9kgS3ZXcbfs1CR4QeDemhV8X-uA$ . The TRO required them to do this within 24 hours of issuance, and to file a notice w ith the court, which they have now done.

  1. Award term re later implementation: As some of you are familiar from the NSF case, DOD plans to include language in new grants indicating that if the policy is allowed to go into effect, it will apply for the life of the award (i.e., to the date after June 12, 2025 that the new award was issued).  
  • As in NSF, we think this is not inconsistent with relief the government could get if a later court decision upholds the policy, but we still think it is prudent to reserve rights to challenge retroactive applications. 
  • To the extent you are asked or required to acknowledge receipt of such language, we recommend responding along the lines of: “We confirm receipt of your message but reserve all rights to challenge attempted retroactive applications of the 15% Indirect Cost Cap memos.”
  1. No renegotiations during the TRO: Although the TRO only applies to the immediately effective portions of the policy, i.e., those related to new grants, DOD is voluntarily staying implementation of the portion of the policy related to existing grants.
  • Here is the language from the notice:  “Additionally, DOD will pause efforts to renegotiate rate caps for existing awards to institutions of higher education for the duration of the TRO.”

Again, if you receive any communications from DOD on this matter, please refrain from responding and continue to forward communications to the Assistant Vice President for Research Administration and Compliance, Victoria Rivera at riveravg@hawaii.edu, who will respond on behalf of the university.

To keep up to date on this and other developments in this highly fluid environment, please go to the New Administration Federal Funding Updates page on the OVPRI website and the UH Federal Policy Updates and Resources webpage.

Sincerely,
Vassilis L. Syrmos
Vice President for Research and Innovation