§ 645.35 What is the review process for unsuccessful applicants? ( a ) *Technical or administrative error for applications not reviewed.* ( 1 ) An applicant whose grant application was not evaluated during the competition may request that the Secretary review the application if— ( i ) The applicant has met all of the application submission requirements included in the Federal Register notice inviting applications and the other published application materials for the competition; and
( ii ) The applicant provides evidence demonstrating that the Department or an agent of the Department made a technical or administrative error in the processing of the submitted application.
( 2 ) A technical or administrative error in the processing of an application includes— ( i ) A problem with the system for the electronic submission of applications that was not addressed in accordance with the procedures included in the Federal Register notice inviting applications for the competition;
( ii ) An error in determining an applicant's eligibility for funding consideration, which may include, but is not limited to— ( A ) An incorrect conclusion that the application was submitted by an ineligible applicant;
( B ) An incorrect conclusion that the application exceeded the published page limit;
( C ) An incorrect conclusion that the applicant requested funding greater than the published maximum award; or
( D ) An incorrect conclusion that the application was missing critical sections of the application; and
( iii ) Any other mishandling of the application that resulted in an otherwise eligible application not being reviewed during the competition.
( 3 ) ( i ) If the Secretary determines that the Department or the Department's agent made a technical or administrative error, the Secretary has the application evaluated and scored.
( ii ) If the total score assigned the application would have resulted in funding of the application during the competition and the program has funds available, the Secretary funds the application prior to the re-ranking of applications based on the second peer review of applications described in paragraph (c) of this section.
( b ) *Administrative or scoring error for applications that were reviewed.* ( 1 ) An applicant that was not selected for funding during a competition may request that the Secretary conduct a second review of the application if— ( i ) The applicant provides evidence demonstrating that the Department, an agent of the Department, or a peer reviewer made an administrative or scoring error in the review of its application; and
( ii ) The final score assigned to the application is within the funding band described in paragraph (d) of this section.
( 2 ) An administrative error relates to either the PE points or the scores assigned to the application by the peer reviewers. ( i ) For PE points, an administrative error includes mathematical errors made by the Department or the Department's agent in the calculation of the PE points or a failure to correctly add the earned PE points to the peer reviewer score.
( ii ) For the peer review score, an administrative error is applying the wrong peer reviewer scores to an application.
( 3 ) ( i ) A scoring error relates only to the peer review process and includes errors caused by a reviewer who, in assigning points— ( A ) Uses criteria not required by the applicable law or program regulations, the Federal Register notice inviting applications, the other published application materials for the competition, or guidance provided to the peer reviewers by the Secretary; or
( B ) Does not consider relevant information included in the appropriate section of the application.
( ii ) The term “scoring error” does not include— ( A ) A peer reviewer's appropriate use of his or her professional judgment in evaluating and scoring an application;
( B ) Any situation in which the applicant did not include information needed to evaluate its response to a specific selection criterion in the appropriate section of the application as stipulated in the Federal Register notice inviting applications or the other published application materials for the competition; or
( C ) Any error by the applicant.
( c ) *Procedures for the second review.* ( 1 ) To ensure the timely awarding of grants under the competition, the Secretary sets aside a percentage of the funds allotted for the competition to be awarded after the second review is completed.
( 2 ) After the competition, the Secretary makes new awards in rank order as described in § 645.30 based on the available funds for the competition minus the funds set aside for the second review.
( 3 ) After the Secretary issues a notification of grant award to successful applicants, the Secretary notifies each unsuccessful applicant in writing as to the status of its application and the funding band for the second review and provides copies of the peer reviewers' evaluations of the applicant's application and the applicant's PE score, if applicable.
( 4 ) An applicant that was not selected for funding following the competition as described in paragraph (c)(2) of this section and whose application received a score within the funding band as described in paragraph (d) of this section, may request a second review if the applicant demonstrates that the Department, the Department's agent, or a peer reviewer made an administrative or scoring error as provided in paragraph (b) of this section.
( 5 ) An applicant whose application was not funded after the first review as described in paragraph (c)(2) of this section and whose application received a score within the funding band as described in paragraph (d) of this section has at least 15 calendar days after receiving notification that its application was not funded in which to submit a written request for a second review in accordance with the instructions and due date provided in the Secretary's written notification.
( 6 ) An applicant's written request for a second review must be received by the Department or submitted electronically to the designated e-mail or Web address by the due date and time established by the Secretary.
( 7 ) If the Secretary determines that the Department or the Department's agent made an administrative error that relates to the PE points awarded, as described in paragraph (b)(2)(i) of this section, the Secretary adjusts the applicant's PE score to reflect the correct number of PE points. If the adjusted score assigned to the application would have resulted in funding of the application during the competition and the program has funds available, the Secretary funds the application prior to the re-ranking of applications based on the second peer review of applications described in paragraph (c)(9) of this section.
( 8 ) If the Secretary determines that the Department, the Department's agent or the peer reviewer made an administrative error that relates to the peer reviewers' score(s), as described in paragraph (b)(2)(ii) of this section, the Secretary adjusts the applicant's peer reviewers' score(s) to correct the error. If the adjusted score assigned to the application would have resulted in funding of the application during the competition and the program has funds available, the Secretary funds the application prior to the re-ranking of applications based on the second peer review of applications described in paragraph (c)(9) of this section.
( 9 ) If the Secretary determines that a peer reviewer made a scoring error, as described in paragraph (b)(3) of this section, the Secretary convenes a second panel of peer reviewers in accordance with the requirements in section 402A(c)(8)(C)(iv)(III) of the HEA.
( 10 ) The average of the peer reviewers' scores from the second peer review are used in the second ranking of applications. The average score obtained from the second peer review panel is the final peer reviewer score for the application and will be used even if the second review results in a lower score for the application than that obtained in the initial review.
( 11 ) For applications in the funding band, the Secretary funds these applications in rank order based on adjusted scores and the available funds that have been set aside for the second review of applications.
( d ) *Process for establishing a funding band.* ( 1 ) For each competition, the Secretary establishes a funding band for the second review of applications.
( 2 ) The Secretary establishes the funding band for each competition based on the amount of funds the Secretary has set aside for the second review of applications.
( 3 ) The funding band is composed of those applications— ( i ) With a rank-order score before the second review that is below the lowest score of applications funded after the first review; and
( ii ) That would be funded if the Secretary had 150 percent of the funds that were set aside for the second review of applications for the competition.
( e ) *Final decision.* ( 1 ) The Secretary's determination of whether the applicant has met the requirements for a second review and the Secretary's decision on re-scoring of an application are final and not subject to further appeal or challenge.
( 2 ) An application that scored below the established funding band for the competition is not eligible for a second review.
(Approved by the Office of Management and Budget under control number 1840-NEW4) (Authority: 20 U.S.C. 1070a-11)
[75 FR 65788, Oct. 26, 2010]