1 Dr. John Zuman 2 Intercultural Center for Research in Education (INCRE)

ESI-0452301 $2,070,230.

'

See Tab #I-Grant Letter dated March 3,2008 See Tab #2-Notice of Debarment dated February 29,2008

se NATIONAL SCIENCE FOUNDATION OFFICE OF INSPECTOR GENERAL

z OFFICE OF INVESTIGATIONS 4 !el 04 'ND CLOSEOUT MEMORANDUM

11' NSF OIG Form 2 (1 1/02)

Case Number: 1-05-1 1-0069 Page 1 of 1 I This investigation was opened pursuant to a complaint that the Executive ~irector' of a research firm2 made false statements in an NSF proposal.3

Our investigation showed that NSF h d e d 4 the proposal, based in material part on the false statements. In addition, the firm submitted an altered letter of support to demonstrate a collaboration that it did not have.

Based on our recommendations, NSF suspended the award during the course of the investigation and subsequently terminated the award5, and also imposed a federal government-wide debarment6 on the Executive Director for a period of five years.

Accordingly, this case is closed.

NATIONAL SCIENCE FOUNDATION Grant Letter .

Award:0452301 PI Name:Zuman. John Award Date: Award No. Amendment No.

March 3, 2008 DRL-0452301 003

7 Intercultural Center for Research -

in Education, Inc. 3.66 Massachusett Avenue Arlington, MA 02474-6733

Dear - By letter dated March 23, 2005, , as amended, the sum of $1,471,188 was awarded to Intercultural Center for Research in Education, Inc. for support of the project entitlednCommunity-based Multicultural After-school Science Discovery Program Targeted for Urban Youth-der the direction of John P. Zuman .

This award is hereby terminated in accordance with the letter dated February 29, 2008 from Dr. Kathie L. Olsen, Deputy Director, National Science Foundation.

The cognizant NSF program official for this grant is (703) 292- The cognizant NSF grants officia1.i (703) 292-

Sincerely,

Grants and Agreements .Officer

Printed from eJacket: 03/03/08 Page I of 2

.-

NATIONAL SCIENCE.FOUNDATION 4201 Wilson Boulevard

ARLINGTON, VIRGINIA 22230 . .

FEB 2 9 2008

OFFICE OF THE ' GENERAL COUNSEL

CERTIFIED MAIL --RETURN RECEIPT REQUESTED

Normand F. Smith Burns & Levinson, LLJ? 125 Summer. Street Boston, MA 02 1 10

Re: Dr. John Zuman -Notice of Debarment . .

Dear Mr. Smith:

On December 12,2007, Dr. Kathie Olsen, the National Science Foundation's ('WSF") Deputy Director, issued to Dr. Zuman a Notice of Proposed ~ e b a r m k t in which NSF proposed to debar

'

Dr. Zuman from directly or indirectly obtaining the benefits of Federal grants for a period of five years. The Notice sets forth in detail the circumstances giving rise to NSF's decision to propose his debarment. Specifically, NSF proposed Dr. Zuman's debanhent because he made multiple false statements andaltered a letter of support in connection with an NSF-funded proposal. In this Notice, NSF provided Dr. Z y r m with opportunity to respond to the proposed debarment.

On January 10,2008, Dr. Zuman. filed a timely response to this Notice. In this response, he urged NSF not to debar him because he alleges that the investigation conducted by the Office of Inspector General ("OIG") into his misconduct was inaccurate. He also asserts that, if any misconduct did occur, no harm was caused to NSF or the project. As detailed below, I am not persuaded by either of Dr. Zuman's arguments.

'

. . . . . . . . . . .. . . .. . . . . . . I gave careful consideration to the points made by Dr. &an ih his response that the OIG . .

investigative report contained num&ous inaccur&ies. ' Upon review, however, Dr; Zuman has offered-no evid&e to demonstrate that the probative infidmition cill'ected during the course of

it is undisputed that the(-b '

from Dr. ZUmk's proposal in July 2004. It is .

equested that Dr. Zuman remove all references to the - in the reviied pnjposal that he subs . uentl submitted to NSF. Dr. Zuman asserts that he did not

' ' do so because, subsequent to the w d e c i s i ~ n to withdraw its support, one or both of the -4 to consult on the project. Dr. Zuman, however, does not produce any substantive evidence to support his assertion: Moreover, he has not provided any rational explanation as to why either of the-ould agree to serve as a c6nsultant . ,

on his proposal mere weeks after withdrawing support fiom the proposal. . .

Dr. Zuman's contention t h a t a revised letter of support for his proposal in July 2004 is similarly flawed. Not only was Dr. ~ u k m unable to produce a copy of the letter,

Telephone (703) 292-8060 . FAX (703) 292-9041

Page 2

1 . but he also has not proffered a plausible explanation as to why the-ould support his proposal so soon after deciding to withdraw its support of it.

Lastly, contrary to Dr. Zurnan's assertion, his misrepresentation of t h e p a r t i c i p a t i o n in : the project was a critical factor in NSFYs decision to h d the proposal. The . . cognizant program officers opined that the award would not have been made had the proposal not included a discussion of t h e o f which the-as a crucial part. The summary of .

the OIG's interview with.the program officers did not appear in the OIG's investigative report, - -

but was transmitted to Dr. Zuman with the Notice of proposed Debarment. I hav~enclosed '1

. another copy. with this letter.

For all of the foregoing reasons, Dr. Zurnan is debarred until March 1,2013. Debarment precludes him fiom receiving Federal financial and non-financial assistance and benefits under non-procurement Federal programs and activities unless an agency head or authorized designee makes a determination to grant an exception. Non-procurement transactions include grants, cooperative agreements, scholarships, fellowships, contracts of assistance, loans, loan guarantees; subsidies, insurance, payments for specified use, and donation agreements.

In addition, Dr. Zuman is prohibited h m receiving Federal contracts or ~p~roved.subcontracts under the Federal Acquisition Regulations ("FAR") at 48 CFR Subpart 9.4 for the period of this debarment. During the debarment period, he may not have supervisory responsibility, primary .

management, .substantive control over, or critical influence on, a grant, contract, or cooperative '

agreement. with any agency of the Executive Branch. of the Federal Government. , . . .

under the government-wide debarment regulations, Dr. Zuman may ask the deba&ng official to ' :,

recbnsider the debarment decision or to,reduce the time periodor scope of the deb-ent. However, this request must be in writing, and must be supported by documentation. 2 CFR 180.875. . .

. . .

If you have anyquestions regarding the foregoing, please contact Assistant General Co'unsel, National Science Foundation, office' o'f the General Counsel, 4201 Wilson ~ou levhd , Room 1265, Arlington, Virginia 22230.

. . Sincerely, - .

Kathie L. 01sen . Deputy Director

. .

Enclosure . . . .

cc: Dr. John z k a n Ms. Karen Tiplady, DGA

. . . .

. .

NATIONAL SCIENCE FOUNDATION 4201 WILSON BOULEVARD ' .

ARLINGTON, VIRGINIA 22230

DEC 1 2 2007

OFFICE OF THE DEPUTY DIRECTOR

CERTIFIED MAIL --RETURN RECEIPT REOUESTED

Normand F. Smith, Esq. Bums & Levinson, LLP 125 Summer Street Boston, MA 021 10

Re: Dr. John Zuman - Notice of Proposed Debarment

Dear Mr. Smith:

In 2004, the Intercultural Center for Research in Education submitted a proposal to the National Science Foundation ("NSF" or the b'Foundation") entitled, "Community Based Multicultural After-School Science Discovery Program Targeted for Urban Youth," for which your client, Dr. John Zuman, was identified as the Principal hvestigator. This proposal was funded. As documented in the attached investigative report prepared by NSF7s Office of Inspector General ("OIG), Dr. Zuman made multiple false statements and altered a letter of support in connection with this proposal.

In light of his misconduct, this letter serves as formal notice that the National Science Foundation ("NSF") is proposing to debar Dr. Zuman from directly or indirectly obtaining the benefits of Federal grants for a period of five years. During his period of debarment, Dr. Zuman will be precluded fiom receiving Federal financial and non-financial assistance and benefits under non- procurement Federal programs and activities. In addition, he will be prohibited from receiving any Federal contracts or approved subcontracts under the Federal Acquisition Regulations ("FAR). Lastly, during his debarment period, Dr. Zuman will be barred from having supervisory responsibility, primary management, substantive control over, or critical influence on, a grant, contract, or cooperative agreement with any agency of the Executive Branch of the Federal Government.

Page 2

Regulatory Basis for Debarment \

Pursuant to 2 CFR 180.800, debarment may be imposed for:

(b) Violation of the terms of a public a>greement or transaction so serous as to a&ct the integrity of an agency program, such as -

( I ) A willfbl failure to perfom in accordance with the terms of one or more public agreements or transactions; or

(3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction

(d) Any other cause of so serious or compelling a nature that it affects your present responsibility.

In any debarment action, the government must establish the cause for debarment by a preponderance of the evidence. 2 CFR 180.850. In this case, Dr. Zuman made multiple false statements and representations in connection with a grant proposal submitted to the Foundation. Thus, h s action supports a cause for debarment under 2 CFR 180.800(b) and 2 CFR 180.800(d).

Length of Debarment

Debarment must be for a period commensurate with the seriousness of the causes upon which an individual's debarment is based. 2 CFR 180.865. Generally, a period of debarment should not exceed three years but, where circumstances warrant, a longer period may be imposed. 2 CFR 180.865. Having considered the seriousness of Dr. Zuman's actions, as well as the relevant aggravating and mitigating factors set forth in 2 CFR 180.860, we are proposing debarment for a period of five years.

Procedures Governing Proposed Debarment

The provisions of 2 CFR Sections 180.800 through 180.885 govern debarment procedures and decision-making. Under these regulations, Dr. ~ u m a n has 30 days after receipt of this notice to submit, in person or in writing, or through a representative, information and argument in opposition to this debarment. 2 CFR 180.820. Comments submitted within the 30-day period will receive full consideration and may lead to a revision of the proposed disposition. IfNSF does not receive a response to this notice within the 30-day period, this debarment will become final.

Page 3 Any response should be addressed to Lawrence Rudolph, General Counsel, National Science

' Foundation, Office of the General Counsel, 4201 Wilson Boulevard, Room 1265, Arlington, Virginia 22230. For Dr. Zuman's information, we are attaching a copy of the Foundation's regulations on non-procurement debarment and FAR Subpart 9.4.

Should you have any questions about the foregoing, please contact Assistant General Counsel, at (703) 292-

Sincerely,

Kathie L. Olsen Deputy Director

Enclosures: Investigative Report Nonprocurement Debarment Regulations FAR Regulations

cc: Dr. John Zuman Ms. Karen Tiplady, DGA

National Science Foundation Office of Inspector General

Confidential lnvestieation Ke~ort

Case Number 1-05 110069 13 August 2007

I 'Kis Collliderltid Im~es~igation Repo~t is d ~ e pl-opeliy of tllr NSF OIG i ~ l d ilny be dis~1ose.d outside NSF only by 01G under the Freedom of I ~ l f o ~ ~ n l ~ t i o n :iod P~-i~lacicy Acts, 5 U.SC $$ 552) 552a. I

Allegation

Subject

OIG Investigation

DOJ Assessment

OIG Assessment

OIG Recommendations

Executive Summary

Material false representations in NSF proposal and responses to NSF panel inquiries.

Subject is the Executive Director of an education oriented research fm.

NSF granted a $2,000,000 award to Subject based in material part on his claim that an outside consultant organization supported the project. The OIG investigation revealed that the consultant had withdrawn support fkom the project in writing prior to the proposal being submitted. Despite this withdrawal, Subject falsely represented to NSF in his proposal that he still had the consultant's support, and altered the date on a previous letter of support to bolster this assertion. In addition, in response to NSF panel questions, Subject falsely elaborated on anticipated support fkom the consultant. NSF program managers confirm that Subject would not have received the award but for the consultant's support. Because Subject made material false statements to the government, we referred the matter to the United States Department of Justice (DOJ).

The Assistant United States Attorney declined prosecution because of Subject's financial inability to pay. The declination was made for reasons unrelated to merit, and upon understanding that NSF has strong administrative remedies available, such as termination and/or debarment.

The Acts: Subject made multiple false statements and altered a letter of support. Intent: Subject knowingly misrepresented the consultant's support in order to obtain the NSF award. Materiality: The false statements were material. Pattern: Subject made multiple false statements to NSF, representing a pattern.

Based upon the facts described herein, OIG recommends:

Pursuant to 2 C.F.R. 5 180 et seq, that NSF debar Subject for five years; and

Pursuant to the applicable Grant General Conditions (GC-1, 7/02) and Grant Policy Manual (GPM, 7/02), that NSF terminate NSF award number ESI 042301.

OIG INVESTIGATION

A. Factual Background:

OIG received a complaint that subject,' Executive Director of an education oriented research firm (hereafter "the Firm") made false statements in an NSF ~ r o ~ o s a l . ~ NSF subsequently awarded the proposed grant to the Firm, with Subject serving as Principal Investigator (PI). The facts and circumstances surrounding this complaint are as follows:

On November 17, 2003, Subject submitted a proposal3 to NSF with the support of a consultant organization ( ~ 0 ) ~ . The CO had two co-directors5 at that time. The purpose of the award was to create an after-school program in science and literacy, which would be tested in limited sites, and then widely disseminated throughout the United States. Subject was assisted in drafting the proposal by Witness 36, who was also listed as a salaried employee, expected to serve as Senior Scientist for the project. NSF did not hnd this proposal.

On June 28 and 30, 2004, during a telephone conversation and in two written emails to Co-Director 1,7 Subject requested continuing support and assistance from CO for a revised proposal he intended to submit to NSF. Specifically, in the latest email, he informed Co-Director 1 that NSF ISE did not want to support literacy development, so that "the project should be squarely on science learning." In addition, he asked Co-Director 1 to comment on how h s proposal would contribute to theory and practice in the field, and wrote:

We . . . need to define the impact of the project for the years following the 4-year funding period. Here, some thoughts on the role of the Cross-Cities network in the continued dissemination of the developed program would be most helpful.

Subject did not request a revised letter of support from CO at this point, stated his intent to complete the revised proposal by July 15, 2004, and concluded: "in the mean time look forward to your response to the two points I mentioned above."

1 Dr. John Zuman, Executive Director, Intercultural Center for Research in Education (hereafter Subject)

2 ESI-0452301, Community Based Multicultural After-School Science Discovery Program Targeted for Urban Youth

3 Appendix (App.) 1, NSF Proposal 0407067, "Community Based Multicultural After-School

(hereafter Consultant Organization (CO)) (hereafter Co-Director 2)

(hereafter Witness 3) 7 App. 2 (Emails dated June 28 and 30, 2004, between Co-Director 1 and Subject).

On July 6,2004, Co-Director 1 replied in an email,8 marked "Urgent," withdrawing CO's support fiom the project, and directing Subject to remove all reference to CO in his proposal. Co-Director 1 wrote, in pertinent part:

I received the preliminary changes for the next NSF submission. After discussing this opportunity with [Co-Director 21, we both agreed that we will have to decline further involvement in a joint project. . . ..we need you to remove all references to [CO] in your resubmission.

On July 9,2004, Subject acknowledged receipt of this withdrawal of support in a written email, stating that he was "disappointed that [CO] does not wish to be included in our grant," but asking that Co-Director 1 at least serve on the advisory board for the project. In addition, Subject asked if Co-Director 1 would be "willing to write a brief letter stating a willingness to serve on the project advisory b ~ a r d . " ~

On July 16, 2004, Co-Director 1 declined Subject's invitation to sit on the advisory board, noting that it was a conflict since [CO] would be submitting proposals in partnership with others to NSF." Co-Director 1 did not attach either a letter of support from CO or a letter of intent to serve on the advisory board. That same date, Subject acknowledged Co-Director 1's declination, noting his disappointment and disagreement that any conflict might exist."

On August 13,2004, Subject submitted a subsequent proposal12 requesting $2,070,230 of fimding over 5 years. Despite CO's explicit withdrawal of support, Subject asserted in the proposal that CO supported the project and would serve as a contributing paid consultant in years 3, 4, and 5 of the award. CO's role would be primarily to implement a dissemination plan. In addition, Subject submitted a letter of support from CO, dated July 1, 2004, to reflect current support for the project. Other than the date, this letter of support was identical to the previous letter of support provided by CO for the earlier NSF proposal, using the title of the former proposal that referred to literacy as well as science.13 Co-Directors 1 and 2 confirmed to OIG that CO: 1) withdrew support for the project in question, prior to the date that Subject submitted the proposal to NSF, and 2) did not provide Subject with a letter of support, dated July 1,2004.

Moreover, Subject's proposal listed Witness 3 as a salaried Senior Scientist on the project.14 Witness 3 has confirmed to OIG that s h e did not know about or authorize the use of hisher name in the August 2004 proposal, and that she has not served as a salaried employee on this project.

8 App. 3 (July 6, 2004, email from Co-Director 1 to Subject, and July 9, 2004, response from Subject to Co-Director 1).

9App. 3 (July 9, 2004, email from Subject to Co-Director 1) 10 App. 4 (July 16,2004, email exchanges between Co-Director 1 and Subject) 11 Id. 12 App. 5 (NSF Proposal 0452301, "Community Based Multicultural After-School Science

Discovery Program). Per NSF's recommendation, Subject removed any reference to literacy from the revised proposal, focusing solely on science.

13 App. 6 (November 13,2003 and July 1,2004 CO Letters of Support). 14 App. 7 (Cumulative Budget Proposal).

The NSF review panel for the August 2004 proposal sent additional questions to Subject, requesting in pertinent part, clarification of CO's anticipated role in the project. In response, on November 10,2004, Subject provided the following additional false information:

[Tlhe two [CO] co-directors will be instrumental in the dissemination of the project model beyond the initial group of after-school programs. As co-chairs of the , they regularly meet with representatives of organizations that support and work with after- school programs all over the country. The [sic] will organize meetings and presentations for members to share information about promoting science in after-school through the programs model, and will disseminate results of the project nationally. They will be reimbursed at a contract rate of $500 per day for their work on dissemination of project o~tcomes. '~

OIG was informed about these allegedly false statements, and subsequently conducted multiple interviews with Co-Director 1, Co-Director 2, and Witness 3, confirming the underlying facts. In addition, OIG met with the program officials and confirmed that the NSF program would not have made this award but for the representations regarding CO's participation in the national dissemination aspect of this award.16

In July 2006, to follow-up a site visit, the NSF Program 0fficer17 (PO), wrote to Subject to ask the status of CO's participation. Specifically, the PO asked, "Howlwhen will work with [CO] and begin to prepare you for the national aspect of the program." Rather than replying that neither CO nor was involved in the project, Subject responded, in pertinent part: "Advisory Board members encouraged us to work collaboratively with the Coalition for Science and After School ([CO] is involved in this initiative) and we have already begun working on this.'"'

B. Subiect's Response to Allegations:

OIG investigators interviewed Subject in January 2007, and subpoenaed all relevant documents.

During this interview and in subsequent submissions to NSF O I G , ~ Subject acknowledged receipt of CO's email withdrawing support, and of the subsequent chain of emails in which Co- Director 1 also declines his request to serve on the advisory board for the project or provide him with a related letter of support.

15 App. 8 (Panel Questions and the Subject's Responses). 16 The materiality of these false statements is further supported by NSF's Review Analysis for

the proposal, which contains several references to CO's role as integral to the success of this project. 11 (hereafter Program Officer (PO) 18 App. 9 (Email Exchange between PO and the Subject). 19 App. 10 (Subject's response to Subpoena Request).

However, Subject claimed that: (1) Co-Director 2 dropped off the July 1, 2004, letter of support to his office in early July 2004, on Co-Director 2's way to work, even though he had not requested a revised letter of support at that point; and (2) At the end of July, subsequent to the email exchange in which CO expressly withdrew support, he contacted Co-Director 2 by telephone and "cajoled" Co-Director 2 into agreeing that CO would again support the project. When asked if he followed up that alleged phone conversation with an email confirming CO's renewed support, Subject stated that he did not do so, nor did he request an updated letter of support, but that in hindsight he should have done both.

Co-Director 2 vehemently denies that she provided the July 1, 2004, letter of support to Subject or that s h e had any conversation with Subject in which Co-Director 2 had a change of heart or renewed CO's pledge of support for the revised proposal to NSF at any point in time. Moreover, Subject's version of events is called into doubt by the remainder of the known facts. First, in June 2004, Subject notified Co-Director 1 in writing that NSF was no longer interested in the literacy aspect of the program. Yet the July 1, 2004, purported revised letter of support signed by Co-Director 1 refers back to the title of the previous NSF proposal that had been declined by NSF, which specifically referred to literacy, and other than the date, the new letter was identical to the earlier letter. The preponderance of the evidence supports that Subject merely took the previous letter of support and changed the date, to reflect continued CO support that he did not have.

Second, according to Subject's later interview at the U.S. Attorney's office, he asserted that Co-Director 2 explained to him during the purported late July 2004 phone conversation, that the reason CO could not support this project was because was to be losing funding and would not likely exist when needed to serve this project. Subject then reported to us that he told Co- Director 2 that this was not a problem because he didn't need rn for his project; rather, he only needed the Co-Directors' contacts with the overall community to help him disseminate his work. Subject contends that based upon his representation to Co-Director 2, Co-Director 2 agreed that CO would continue to support the project.

Again, Co-Director 2 vehemently denies that this late July 2004 conversation took place, nor does Subject claim to have sent any correspondence i.e., emails documenting this alleged conversation. Moreover, it is wholly unlikely given the overall facts and circumstances. Specifically, this claim is contrary to Co-Director 1's stated reasons that CO was withdrawing support, just weeks before. Second, it is refuted by Subject's own responses to panel questions in October 2004, where he expressly represents to the NSF panel that was expected to be involved in the dissemination plan. If, in fact, Co-Director 2 told him in July 2004 that would not be able to actively participate in the award, if funded, then according to Subject's own version of events, he then misrepresented ' s anticipated participation in dissemination to the NSF Panel in October 2004. Further, Subject stated that he did not contact CO for assistance with drafting answers to the Panel's October 2004 questions, as he thought it was "no big deal."

Finally, a separate but related issue is the question of support by Witness 3. Subject claims that he sent Witness 3 the revised proposal to review, with Witness 3 listed as a salaried employee, and that Witness 3 wrote back that it looked good, and wished him good luck with it. Subject also claims that he contacted Witness 3 when it was funded, but that Witness 3 did not

respond, and he had to hire a replacement. Finally, Subject claims that Witness 3 confronted him in the fall with a letter, but that he called Witness 3's attorney and never heard back.

However, Witness 3 vehemently denies ever seeing the new proposal, or knowing that s h e was listed as a salaried employee. Witness 3 asserts that when s h e spoke to Subject in October 2005, Subject denied that Witness 3 was listed on the current funded proposal at all. When Witness 3 replied that s h e had sought and obtained a copy of the proposal under FOIA, Subject responded that there must have been a mistake, and that he would get back to Witness 3. He never did.

Subject has claimed several times during this investigation that because of an email glitch, some relevant documents may have been randomly deleted from his system, and therefore unavailable. Regardless of whether this claim is credible, we have determined it to be irrelevant since according to Subject's own assertions; he never produced or received any documentation to confirm the purported conversation with Co-Director 2 the end of July 2004 or CO's purported restatement of support for his August 2004 proposal. Moreover, Subject states that he never asked for a revised letter of support from CO after that purported conversation.

In sum, Subject's version of events is not only refited by three witnesses, but it is also contrary to the documentary evidence.

C. Department of Justice Assessment:

Based upon the above facts, OIG concluded that Subject made several material false statements to NSF, to include doctoring a letter of support. We believed that Subject violated both civil and criminal statutes2' and we therefore referred the matter to the United States Attorney's Office for the District of Massachusetts (USAO-DMA), which accepted this matter for in~esti~ation.~'

The USAO-DMA accepted our referral and eventually contacted Subject notifying him of its intent to file a civil complaint against him. Subject met with the Assistant United States Attorney (AUSA) and representatives of OIG to discuss the matter. Although the AUSA agreed to move forward on the merits, upon review of Subject's financial disclosure statements, the AUSA determined that Subject was financially unable to pay any substantial judgment and that therefore, it would be more efficient, cost-effective, and productive for the agency to proceed administratively. Therefore, the AUSA "reluctantly concluded not to file suite at this time," as a result of Subject's lack of ability to pay. The AUSA specifically noted that the declination is made with the "understanding that there are strong administrative remedies available to NSF including a termination of the award and the potential for debarment of Subject for up to five years."22

20 18 U.S.C. § 1001, and 31 U.S.C. 3729(a)(2). 21 Assistant U.S. Attorney A, Chief, Civil Litigation. 22 App. 11 (Declination Letter, dated June 1, 2007).

D. NSF's Actions:

Based upon the facts uncovered during the investigation, and in order to best protect NSF funds, NSF OIG recommended that NSF suspend Subject's NSF award23 for 60 days, and requested that this suspension be extended three times, initially based upon ongoing discussions between Subject and the USAO-DMA, and ultimately to prepare this report of investigation once the matter was declined in lieu of administrative action. NSF accepted NSF OIGYs recommendations, and the award is currently under suspension through August 19 ,2007 .~~

11. OIG ASSESSMENT

A. Debarment:

NSF has the authority to debar an individual for "[v]iolation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program . . . ."25 Such a violation occurs when the individual commits a "willfid violation of a statutory or regulatory

,926 provision or requirement applicable to a public agreement or transaction. . . . Furthermore, NSF has the authority to debar an individual for "[alny other cause of so serious or compelling a nature that it affects [the subject of the debarment action's] present responsibility."27

1. Subiect's Actions:

Subject entered his electronic signature on the Certification Page of his proposal, dated August 13,2004. In doing so, he certified that "statements made herein are true and complete to the best of his knowledge; and "agreed to accept the obligation to comply with NSF award terms and conditions if the award is made as a result of the application." Moreover, the Certification Page clearly put him on notice that: ''willfU1 provision of false information in this application and its supporting documents or in reports required under an ensuing award is a criminal offense (U.S. Code, Title 18, Section 1001)." As discussed below, Subject provided the following material false statements to NSF throughout the proposal and award period, and compromised the integrity of the NSF award system, which necessarily requires and relies upon truthhl submissions.

a. Material False Statements in Proposal Subject falsely asserted numerous times within the proposal that CO and Witness 3 supported his revised proposal to NSF, referring twelve times to CO's support and ten times to Witness 3's support. Both co-directors of CO and Witness 3 deny that they supported this proposal. As discussed in detail above, CO officials have documentary

23 ESI-0452301, Community Based Multicultural After-School Science Discovery Program 24 App. 12 (Memoranda from NSF OIG to NSF, and Memoranda from NSF to the subject). 25 2 C.F.R. § 180.800 (b). 26 2 C.F.R. § 180.800 (b)(3). 27 2 C.F.R. 8 180.800 (d).

evidence that CO withdrew its support fkom this proposal weeks before Subject submitted it to NSF, and Subject himself provided documentary evidence that he received and acknowledged CO's withdrawal of support. In addition, as discussed above, a preponderance of the evidence refutes Subject's claims that Co-Director 2 later retracted CO's withdrawal of support. Moreover, Witness 3 denies being informed that hisher name was being included in this proposal, denies having been asked to participate as a paid employee on this funded proposal, and states that when s h e confronted Subject about the fact that s h e was listed on this proposal, Subject's response was that it must have been a mistake.28 For reasons discussed above, preponderance of the evidence supports Witness 3's claims that hisher name was included in the proposal without hislher knowledge or consent.

b. Falsification of Letter of Support Subject provided a July 1, 2004, letter of support from CO. CO officials examined the letter and informed NSF OIG that it was identical to CO's previous letter of support, dated November 13, 2003, and that they did not authorize Subject to change the date. In addition, Co-Director 2 denies that s h e dropped off this letter of support to the Firm offices in early July 2004, and the remaining facts as described above do not support the Subject's version of events. Therefore, a preponderance of the evidence supports the proposition that Subject altered CO's earlier letter of support by adding a current date to reflect current support that he did not have.

c. Falsification in Responses to NSF Panel Questions Subject responded to panel questions regarding CO participation by elaborating on CO's and ' s role in dissemination. Again, CO withdrew support in early July 2004, and denies ever having authorized Subject to include the organization as a consultant in the August 2004 proposal. Subject admits that he did not contact CO to assist in responding to panel questions 4 and 5, requesting more information about dissemination. This was inconsistent with his decision to have his evaluation consultant heavily involved in answering the panel's questions regarding the evaluation plan. Moreover, according to Subject's own version of events, i.e., that Co-Director 2 told him at the end of July 2004 that CO could not participate because would be losing funding and would not exist to assist with the project, he provided clearly misleading information to the panel by suggesting several times in response to the panel questions that would be instrumental in the dissemination plan.29

28 OIG notes that Witness 3 has recently received a PhD from Harvard University's School of Divinity.

29 App. 8 (Subject's Panel Responses). This reads, in pertinent part: "Dissemination beyond the 5-year project will be conducted in collaboration with with the =

. . . members will be able to introduce the developed materials and approach to after-school programs and community agencies in their cities. . . "

and "The two CO's co-directors will be instrumental in the dissemination of the project model beyond

the initial group of after-school programs. As co-chairs of the 1 , they regularly meet with representatives of organizations that support and work with after-school

For these reasons, preponderance of the evidence supports that CO withdrew its support and that Subject's panel responses were false. However, whether one credits CO's version of events or Subject's in this instance, preponderance of the evidence suggests that Subject provided material false statements to the NSF Panel in response to its additional inquiries.

d. Falsification in Response to NSF Program Officer As late as the summer of 2006, Subject mislead the NSF PO into believing that CO was still involved in the NSF award. Rather than informing the PO that CO has not been involved since this award was issued, Subject implied that he was working with CO through another organization, to work on his national dissemination plan.30 Again, preponderance of the evidence supports that Subject continued to attempt to deceive NSF program officers regarding CO's involvement in this award long after even he admits CO was not involved in the project.

e. Subiect's Lack of Candor with the OIG During several interviews and phone conversations throughout the course of this investigation, Subject has never accepted responsibility for his misrepresentations to NSF. Rather, his version of events with respect to both CO officials and Witness 3 is not only implausible, but wholly unsubstantiated by the three witnesses and the documentation produced by both Subject and these individuals.

2. Subiect's Intent:

As discussed at length above, the weight of the evidence strongly indicates, by at least a preponderance of the evidence, that Subject knowingly and purposefully made material false statements in his proposal and accompanying documents that CO and Witness 3 supported this project, when in fact, he had explicit knowledge that they did not. The representations regarding CO were material and resulted in him obtaining an award that NSF would not have made but for the purported support. Moreover, a preponderance of the evidence also indicated that Subject knowingly and purposefully sought to continue to deceive NSF into believing that CO supported the award.

3. Burden of Proof:

In debarment actions, the burden of proof lies with the acting agency (NSF) to demonstrate by a preponderance of the evidence that cause for debarment exists.31 Here, the preponderance of the evidence indicates Subject purposefully and willfully violated the terms of a public agreement (the Award) by violating the requirements in the proposal that he provide truthful information, and by certifying that material false representations made within the

programs all over the county. They will organize meetings and presentations for members to share information about promoting science. . .and will disseminate results of the project nationally."

30 App. 9 (Email exchange with NSF Program Officer). 31 2 C.F.R. 5 180.850, and 2 C.F.R. $180.855.

proposal were true and accurate, when he knew them to be false.32 These acts are sufficiently compelling and serious that his present responsibility to manage Federal funds has been compromised.33

4. Relevant Factors

The debarment regulation lists 19 factors that the debarring official may consider.34 Listed below are the factors pertinent to this case.

a. Actual or Potential Harm or Impact 35

NSF has a significant interest in ensuring the integrity of its proposal and award system. In this matter, NSF Program Officers have confirmed that they would not have awarded this award but for the material misrepresentations made by Subject in his proposal, in the invalid support letter, and in responses to the NSF Panel inquiries. Further, it is presumed that the $2 million dollars in funding would have been awarded to other researchers in the field whose proposals contained truthfbl information. Therefore, Subject's actions had significant impact such that the award funds at issue would have been awarded to another entity but for his material misrepresentations.

b. Frequency or Duration of ~ n c i d e n t s ~ ~ Subject's behavior included multiple false statements, spanning from the proposal in

August 2004, through an email exchange in July 2006 with the NSF PO, and in multiple discussions with NSF OIG and the U.S. Attorney's Office. Subject continuously attempted to deceive NSF, NSF OIG and DOJ into believing he had CO's support and support from Witness 3, when in fact, he did not.

c. Pattern of Wrongdoing 37

OIG has no evidence of any instances of wrongdoing committed by Subject unrelated to the Award.

d. Role in Wrongdoing; 3 8

Subject was solely responsible for all of the false statements identified above. Furthermore, the Subject committed these acts with full knowledge of their impropriety.

e. Acceptance of Responsibility 39

Subject has yet to accept responsibility for his actions associated with this matter.

32 2 C.F.R. 3 180.800(b)(3). 33 2 C.F.R. 5 180.800(d). 34 2 C.F.R. 5 180.860. 35 2 C.F.R. 5 180.860 (a). 36 2 C.F.R. 5 180.860 (b). 37 2 C.F.R. 5 180.860 (c). 38 2 C.F.R. 5 180.860 (0. 39 2 C.F.R. $180.860 (g).

f. ~epayment~' Subject has not repaid NSF for the wrongfully acquired funds. It should be noted that

Subject has told OIG and the AUSA that the Firm has spent in excess of $150,000 on this award during the period the award has been suspended. OIG informed Subject that any funds he spent on the award during the suspended period was at his own risk and may not be reimbursable. OIG also suggested that Subject contact the grants officer for this award if he had any questions regarding expenditure of funds during the suspension period.

g. Cooperation of the subiect4' During the investigation, Subject met with OIG investigators and with the USAO-DMA.

However, he has yet to accept responsibility for his actions. h. Position Held bv ~ u b i e c t ~ ~

At the time the wrongdoing was committed, Subject was the Principal Investigator on the Award.

i. Organizational ~ c t i o n ~ ~ As discussed above, the Firm has not taken any action to return wrongfully acquired h d s .

j. Other ~ a c t o r s ~ ~ There is no evidence that Subject diverted any of the misappropriated h d s from this grant

towards his own personal use or the personal use of others. The other considerations listed in the debarment regulation do not appear relevant to this matter.

For the reasons set forth above, and based upon apreponderance of the evidence, NSF OIG strongly urges NSF to debar Subject for a period of five years.

B. Termination of Award:

Subject's award was subject to the Grant General Conditions (GC-1, dated 7/02) and the Grant Policy Manual (GPM). Article 25(b) of the applicable GC-1, and Section 912.1 (a)(2) of the applicable GPM provides that NSF may terminate an award for listed reasons, including "other reasonable cause." Moreover, Article 25(c) of GC-1 provides that "NSF may immediately suspend or terminate the award without notice when it believes such action is reasonable to protect the interests of the Government."

As 'discussed above, Subject received this award based upon material false representations in his proposal and in response to NSF panel inquiries that CO supported this award, and would be responsible for assisting with national dissemination. The NSF program officers have

40 2 C.F.R. 5 180.860 Q. 41 2 C.F.R. 5 180.860 (i). 42 2 C.F.R. 5 180.860 (k). 43 2 C.F.R. 5 180.860 0). 44 2 C.F.R. 5 180.860 (s).

confirmed that Subject would not have obtained this award but for the support of CO. In order to protect the integrity of the NSF award system, and protect NSF award funds provided under false pretenses, it would be not only "reasonable," but imperative that NSF terminate this NSF award.

111. OIG Recommendations

Consistent with the need to protect the interests of the public and the NSF, we recommend that NSF take the following actions as a final disposition of this case:

a Pursuant to 2 C.F.R. 5 180 et seq, debar Subject for 5 years; and a Pursuant to the applicable Grant General Conditions (GC-1) and

Grant Policy Manual (GPM), terminate NSF award number ESI 0452301.

IV. Subiect's Response to Draft Report of Investigation

On July 3, 2007, Subject was provided with a draft of this Report of Investigation (ROI) and given the opportunity to provide comments or rebuttal. Subject provided a written reply to the draft ROI on July 27, 2007 (attached at Appendix 13). We have read and hlly considered Subject's arguments. However, we conclude that Subject's responses do not shift the weight of the evidence in his favor, nor do they persuade us to make alternative recommendations to NSF.