[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7164-7175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4144]
[[Page 7163]]
_______________________________________________________________________
Part III
Department of Energy
_______________________________________________________________________
10 CFR Part 600
Financial Assistance Rules; Regulatory Reduction; Final Rule
Federal Register / Vol. 61, No. 38 / Monday, February 26, 1996 /
Rules and Regulations
[[Page 7164]]
DEPARTMENT OF ENERGY
10 CFR Part 600
RIN 1991-AB23
Financial Assistance Rules; Regulatory Reduction
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) today issues a final rule to
amend its Financial Assistance Rules (Rules) to streamline, simplify,
and improve the DOE financial assistance process. The rules have been
rewritten to eliminate coverage that is unnecessary and to retain only
that coverage that is considered suitable for a regulation.
EFFECTIVE DATE: This final rule will be effective March 27, 1996.
FOR FURTHER INFORMATION CONTACT: Cherlyn D. Seckinger, Office of Policy
(HR-51) Office of Procurement and Assistance Management, Department of
Energy, 1000 Independence Avenue SE., Washington, D.C. 20585 (202) 586-
8246.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Changes to the Proposed Rule
III. Review Under Executive Order 12612
IV. Regulatory Review
V. Review Under the Regulatory Flexibility Act
VI. Review Under the Paperwork Reduction Act
VII. Review Under the National Environmental Policy Act
VIII. Review Under Executive Order 12778
I. Background
In the August 8, 1995 issue of the Federal Register (60 FR 40323),
DOE published a proposed rule to amend its financial assistance rules
by revising Subpart A to simplify and streamline the financial
assistance process in keeping with Departmental and Government-wide
initiatives to improve the way the Department does business. The
changes that are published today with minor modifications primarily
affect DOE internal procedures contained in Subpart A pertaining to the
solicitation, evaluation, and award processes, and have little or no
impact on requirements applicable to applicants and recipients of DOE
financial assistance. In most instances, the amended rule omits
detailed internal procedures for DOE officials, and instead establishes
standards or basic requirements that are of primary interest to members
of the public. Also, the patent, data and copyright provisions in
Subparts A and B have been updated to reflect the recent changes in the
Department of Energy Acquisition Regulations and to clarify how the
Intangible Property provisions in Section 600.136 of Subpart B apply to
commercial organizations.
This rulemaking is part of DOE's ongoing efforts to streamline its
regulatory systems and re-engineer its business processes. In June
1995, the Secretary of Energy Advisory Board's Task Force on Strategic
Energy Research and Development issued a report on the Department's
energy research and development programs. Consistent with the
recommendations provided in this report, the Department currently is
examining the activities, processes, and burdens associated with
awarding and administering all nonlaboratory research and development
contracts and financial assistance awards. As recommendations for
conducting these activities more efficiently and effectively are
developed, it is possible the Department will propose further revisions
to its Financial Assistance Rules.
II. Discussion of Changes to the Proposed Rule
No public comments were received in response to the Notice of
Proposed Rulemaking. However, DOE has made non-substantive
modifications to the proposed rule. Those modifications deserving
explanation are described below. The rule has also been amended to make
some minor technical changes to correct and update citations and cross-
references.
First, the definition of ``project'' will be retained in Section
600.3, Definitions. The reason for retaining it is that the term
``project'' is a basic financial assistance term of art.
Second, it appears that the unsolicited proposal criteria contained
in the existing rule at 600.14(e) were not included in the new Section
600.6, Eligibility, contrary to what was stated in the preamble of the
proposed rule. While not specifically identified as unsolicited
proposal criteria, one of the criteria for justifying noncompetitive
financial assistance under Section 600.6(c)(7) provides the basis for
acceptance of an unsolicited proposal. The criterion states that a
proposed project must be a unique or innovative idea, method, or
approach which would not be eligible for financial assistance under a
recent, current, or planned solicitation, and must be inappropriate for
a competitive solicitation. For purposes of clarification, we have
added the term ``unsolicited proposals'' in Section 600.6(c)(7) in this
criterion.
Third, the address for obtaining the guide on preparation and
submission of unsolicited applications has been included in the rule
under Section 600.10, Form and content of applications. Since DOE is
moving toward the electronic submission of applications, the
requirement in section 600.10(d) for a ``signed application'' has been
revised. The first complete sentence in Section 600.10(d) now reads
``DOE may return an application which is not signed, either in writing
or electronically, by an official authorized to bind the applicant.''
Section 600.16, Legal authority and effect of an award, has been
revised similarly in order to permit the use of an electronic process.
The requirement to send a written review summary to an applicant, upon
request, in Section 600.13(c), Merit review, has been deleted because
it duplicates the requirement in Section 600.19, Notification to
unsuccessful applicants. Section 600.19 requires DOE to provide an
applicant who is not selected for award a written notice which briefly
explains why the application was not selected and offers the applicant
the opportunity for a more detailed explanation upon request. Because
the requirement in Section 600.19 systematically provides information
to an unsuccessful applicant, we have retained that coverage, but
deleted the notification requirement under merit review. Section
600.29(b)(1) has been rewritten to clarify that each fixed obligation
award may neither exceed $100,000 nor exceed one year in length. As
proposed, it could be interpreted to be either/or.
The existing DOE financial assistance rules applied cost sharing
requirements only to cooperative agreements based on the Federal
Nonnuclear Energy Research and Development Act. Since then the Energy
Policy Act of 1992 was enacted which also requires cost sharing for
research, development and demonstration projects carried out under this
Act. The proposed rule extended cost sharing requirements to grants as
a way of leveraging Federal funds in times of declining budgets. While
today's final rule retains this cost sharing policy, it allows for
exceptions to meet specific programmatic needs or requirements on a
single-case or class basis with the approval of the cognizant program
Assistant Secretary or designee.
III. Review Under Executive Order 12612
Executive Order 12612 requires that regulations, rules,
legislation, and any other policy actions be reviewed for any
substantial effects on States, on the relationship between the Federal
Government and the States, or in the distribution of power and
[[Page 7165]]
responsibilities among various levels of Government.
If there are sufficient substantial direct effects, then the
Executive Order requires preparation of a federalism assessment to be
used in all decisions involved in promulgating and implementing a
policy action. Today's rule revises certain policy and procedural
requirements. However, DOE has determined that this rulemaking will not
have a substantial direct effect on the institutional interests or
traditional functions of States.
IV. Regulatory Review
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
V. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act of
1980, Public Law 96-354, 94 Stat. 1164, which requires preparation of a
regulatory flexibility analysis for any regulation that will have a
significant economic impact on a substantial number of small entities,
i.e., small businesses, small organizations, and small governmental
jurisdictions. DOE has concluded that the rule only affects small
entities as they apply for and receive financial assistance, and does
not create additional economic impact on small entities as a whole. DOE
certifies that this rule would not have a significant economic impact
on a substantial number of small entities and, therefore, no regulatory
flexibility analysis has been prepared.
VI. Review Under the Paperwork Reduction Act
No information collection or recordkeeping requirements are imposed
upon the public by this rulemaking. Accordingly, no OMB clearance is
required under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501, et
seq., or OMB implementing regulations at 5 CFR Part 1320.
VII. Review Under the National Environmental Policy Act
DOE has concluded that this rule falls into a class of actions
(categorical exclusions A5) that are categorically excluded from
National Environmental Policy Act (NEPA) review because they would not
individually or cumulatively have significant impact on the human
environment, as determined by the Department's regulations (10 CFR Part
1021, Subpart D) implementing the National Environmental Policy Act of
1969 (42 U.S.C. 4321, 4331-4335, 4341-4347 (1976)). Therefore, this
rule does not require an environmental impact statement or an
environmental assessment pursuant to NEPA.
VIII. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2 (a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any revisions
for the exhaustion of such administrative proceedings, and defines the
terms. DOE certifies that today's rule meets the requirements of
sections 2 (a) and (b) of Executive Order 12778.
List of Subjects in 10 CFR Part 600
Accounting; Administrative practice and procedure; Government
contracts; Grant programs, Indians, Intergovernmental relations; Loan
programs, Lobbying; Penalties; Reporting and recordkeeping
requirements.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Part 600 of Chapter II,
Title 10 of the Code of Federal Regulations is amended as set forth
below:
PART 600--FINANCIAL ASSISTANCE RULES
1. The authority citation for Part 600 continues to read as
follows:
Authority: Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599 (42
U.S.C. 7254 and 7256); Pub. L. 97-258, 96 Stat. 1003-1005 (31 U.S.C.
6301-6308), unless otherwise noted.
Subpart D--[Removed and Reserved]
2. The existing Subpart D Cooperative Agreements (Secs. 600.300
through 600.307) is removed and reserved.
Part 600 is further amended as set forth below:
Sec. 600.112 [Amended]
3. Section 600.112(c) is amended by revising the parenthetical
phrase ``(see Sec. 600.31 (b) and (c))'' to read ``(see Sec. 600.26 (b)
and (c)).''
4. Section 600.136 is revised to read as follows:
Sec. 600.136 Intangible property.
(a) Recipients that are institutions of higher education,
hospitals, and other non-profit organizations are subject to the
following:
(1) The recipient may copyright any work that is subject to
copyright and was developed, or for which ownership was purchased,
under an award. DOE reserves a royalty-free, nonexclusive and
irrevocable right to reproduce, publish or otherwise use the work for
Federal purposes, and to authorize others to do so.
(2) Recipients are subject to applicable regulations governing
patents and inventions. (See 10 CFR 600.27)
(3) DOE has the right to:
(i) Obtain, reproduce, publish or otherwise use the data first
produced under an award.
(ii) Authorize others to receive, reproduce, publish, or otherwise
use such data for Federal purposes.
(4) Title to intangible property and debt instruments acquired
under an award or subaward vests upon acquisition in the recipient. The
recipient shall use that property for the originally-authorized
purpose, and the recipient shall not encumber the property without
approval of DOE. When no longer needed for the originally authorized
purpose, disposition of the intangible property shall occur in
accordance with the provisions of Sec. 600.134(g).
(b) Recipients that are commercial entities shall follow the
provisions set forth at 10 CFR 600.27.
Sec. 600.204 [Amended]
5. In Sec. 600.204 revise ``Sec. 600.405'' to read
``Sec. 600.205''.
Sec. 600.221 [Amended]
6. In Sec. 600.221(g)(2) revise ``Sec. 600.443(c)'' to read
``Sec. 600.243(c)''.
Sec. 600.224 [Amended]
7. In Sec. 600.224(b)(4) revise ``Sec. 600.425(g) to read
``Sec. 600.225(g)''.
8. In Sec. 600.224(e)(2)(ii) revise ``Sec. 600.422'' to read
``Sec. 600.222''.
Sec. 600.225 [Amended]
9. In paragraph (e) of Sec. 600.225, revise ``Sec. 600.434'' to
read ``Sec. 600.234''.
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10. In paragraph (f) of Sec. 600.225, revise ``Secs. 600.431 and
600.432'' to read ``Secs. 600.231 and 600.232''.
Sec. 600.226 [Amended]
11. In paragraph (c) of Sec. 600.226 revise ``Sec. 600.436'' to
read ``Sec. 600.236''.
Sec. 600.230 [Amended]
12. In paragraph (b) of Sec. 600.230 revise the parenthetical
expression ``(see Sec. 600.422)'' to read ``(see Sec. 600.222)''.
13. In Sec. 600.230(d)(4) revise ``Sec. 600.436'' to read
``Sec. 600.236''.
14. In Sec. 600.230(f)(2) revise ``Sec. 600.422'' to read
``Sec. 600.222''.
Sec. 600.232 [Amended]
15. In Sec. 600.232(c)(3) revise ``Sec. 600.425(a)'' to read
``Sec. 600.225(a)''.
16. In Sec. 600.232((g)(2) revise ``Sec. 600.432(e)'' to read
``Sec. 600.232(e)''.
Sec. 600.236 [Amended]
17. In paragraph (c) introductory text of Sec. 600.236, revise
``Sec. 600.436'' to read ``Sec. 600.236''.
18. In Sec. 600.236(d)(2) revise ``Sec. 600.436(d)(2)(i)'' to read
``Sec. 600.236(d)(2)(i)''.
Sec. 600.237 [Amended]
19. In Sec. 600.237(a)(3) revise ``Sec. 600.442'' to read
``Sec. 600.242''.
20. In Sec. 600.237(c) revise ``Sec. 600.410'', ``Sec. 600.411'',
``Sec. 600.421'', and ``Sec. 600.450'' to read ``Sec. 600.210'',
``Sec. 600.211'', ``Sec. 600.221'', and ``Sec. 600.250'' respectively.
Sec. 600.241 [Amended]
21. In paragraph (b) of Sec. 600.241 revise
``Sec. 600.441(e)(2)(iii)'' to read ``Sec. 600.241(e)(2)(iii)''.
22. In Sec. 600.241(e)(1)(i) revise ``Sec. 600.441(d)'' to read
``Sec. 600.241(d)''.
23. In Sec. 600.241(e)(1)(ii) revise ``Sec. 600.441(b)(3)'' to read
``Sec. 600.241(b)(3)''.
24. In Sec. 600.241(e)(2)(ii) revise ``Sec. 600.41(d)'' to read
``Sec. 600.241(d)''.
25. In Sec. 600.241(e)(2)(iii) revise ``Sec. 600.441(b)'' to read
``Sec. 600.241(b)''.
26. In Sec. 600.241(e)(3) revise ``Sec. 600.441(b)(2)'' to read
``Sec. 600.241(b)(2)''.
Sec. 600.243 [Amended]
27. In paragraph (d) of Sec. 600.243, revise the parenthetical
expression ``(see Sec. 600.435)'' to read ``(see Sec. 600.235)''.
Sec. 600.244 [Amended]
28. In paragraph (b) of Sec. 600.244, revise ``Sec. 600.443'' to
read ``Sec. 600.243''.
Sec. 600.250 [Amended]
29. In Sec. 600.250(b)(5) revise ``Sec. 600.432(f)'' to read
``Sec. 600.232(f)''.
Sec. 600.251 [Amended]
30. In Sec. 600.251 (c) revise ``Sec. 600.442'' to
``Sec. 600.242''.
31. In paragraph (d) of Sec. 600.251 revise ``Secs. 600.431 and
600.432'' to read ``Secs. 600.231 and 600.232''.
32. In paragraph (e) of Sec. 600.251 revise ``Sec. 600.426'' to
read ``Sec. 600.226''.
Sec. 600.402 [Amended]
33. Sec. 600.402 is amended in paragraph (d) by revising
``Secs. 600.25, 600.153, 600.242, and 600.305'' to read ``Secs. 600.21,
600.153, and 600.242''.
Sec. 600.403 [Amended]
34. In paragraph (c), of Sec. 600.403 revise ``Secs. 600.126,
600.226, and 600.305'' to read ``Secs. 600.126 and 600.226''.
Sec. 600.405 [Amended]
35. In Sec. 600.405(b)(2)(ii)(C), revise ``Sec. 600.424 of subpart
E'' to read ``Sec. 600.224 of subpart C''.
Sec. 600.415 [Amended]
36. Section 600.415 is amended, in the first sentence, by revising
``Sec. 600.436 of subpart E'' to read ``Sec. 600.236 of subpart C''.
Part 600 is further amended as set forth below:
37. Subpart A is revised to read as follows:
Subpart A--General
Sec.
600.1 Purpose.
600.2 Applicability.
600.3 Definitions.
600.4 Deviations.
600.5 Selection of award instrument.
600.6 Eligibility.
600.7 Small and disadvantaged and women-owned business
participation.
600.8 Solicitation.
600.9 Notice of program interest.
600.10 Form and content of applications.
600.11 Intergovernmental review.
600.12 Generally applicable requirements.
600.13 Objective merit review.
600.14 Conflict of interest.
600.15 Authorized uses of information.
600.16 Legal authority and effect of an award.
600.17 Contents of award.
600.18 Recipient acknowledgement of award.
600.19 Notification to unsuccessful applicants.
600.20 Maximum DOE obligation.
600.21 Access to records.
600.22 Disputes and appeals.
600.23 Debarment and suspension.
600.24 Noncompliance.
600.25 Suspension and termination.
600.26 Funding.
600.27 Patent and data provisions.
600.28 Restrictions on lobbying.
600.29 Fixed obligation awards.
600.30 Cost sharing.
Subpart A--General
Sec. 600.1 Purpose.
This part implements the Federal Grant and Cooperative Agreement
Act, Pub. L. 95-224, as amended by Pub. L. 97-258 (31 U.S.C. 6301-
6308), and establishes uniform policies and procedures for the award
and administration of DOE grants and cooperative agreements. This
subpart (Subpart A) sets forth the policies and procedures applicable
to the award and administration of grants and cooperative agreements.
Sec. 600.2 Applicability.
(a) Except as otherwise provided by Federal statute or program
rule, this part applies to applications, solicitations, and new,
continuation, and renewal awards (and any subsequent subawards).
(b) Any new, continuation, or renewal award (and any subsequent
subaward) shall comply with any applicable Federal statute, Federal
rule, Office of Management and Budget (OMB) Circular and Governmentwide
guidance in effect as of the date of such award.
(c) Financial assistance to foreign entities is governed, to the
extent appropriate, by this part and by the administrative requirements
and cost principles applicable to their respective recipient type, e.g,
governmental, non-profit, commercial.
Sec. 600.3 Definitions.
Amendment means the written document executed by a DOE contracting
officer that changes one or more terms or conditions of an existing
financial assistance award.
Award means the written document executed by a DOE Contracting
Officer, after an application is approved, which contains the terms and
conditions for providing financial assistance to the recipient.
Budget period means the interval of time, specified in the award,
into which a project is divided for budgeting and funding purposes.
Continuation award means an award for a succeeding or subsequent
budget period after the initial budget period of either an approved
project period or renewal thereof.
Contract means a written procurement contract executed by a
recipient or subrecipient for the acquisition of property or services
under a financial assistance award.
Contracting Officer means the DOE official authorized to execute
awards on behalf of DOE and who is responsible for the business
management and non-program aspects of the financial assistance process.
[[Page 7167]]
DOE Patent Counsel means the Department of Energy Patent Counsel
assisting the Contracting Officer in the review and coordination of
patents and data related items.
Financial Assistance means the transfer of money or property to a
recipient or subrecipient to accomplish a public purpose of support or
stimulation authorized by Federal statute. For purposes of this part,
financial assistance instruments are grants and cooperative agreements
and subawards.
Head of Contracting Activity or HCA means a DOE official with
senior management authority for the award and administration of
financial assistance instruments within one or more DOE organizational
elements.
Nonprofit organization means any corporation, trust, foundation, or
institution which is entitled to exemption under section 501(c)(3) of
the Internal Revenue Code, or which is not organized for profit and no
part of the net earnings of which inure to the benefit of any private
shareholder or individual (except that the definition of ``nonprofit
organization'' at 48 CFR 27.301 shall apply to the use of the patent
clause at Section 600.27).
Objective merit review means a thorough, consistent and independent
examination of applications based on pre-established criteria by
persons knowledgeable in the field of endeavor for which support is
requested.
Program rule means a rule issued by a DOE program office for the
award and administration of financial assistance which may describe the
program's purpose or objectives, eligibility requirements for
applicants, types of program activities or areas to be supported,
evaluation and selection process, cost sharing requirements, etc. These
rules usually supplement the generic policies and procedures for
financial assistance contained in this part.
Project means the set of activities described in an application,
State plan, or other document that is approved by DOE for financial
assistance (whether such financial assistance represents all or only a
portion of the support necessary to carry out those activities.)
Project period means the total period of time indicated in an award
during which DOE expects to provide financial assistance. A project
period may consist of one or more budget periods and may be extended by
DOE.
Recipient means the organization, individual, or other entity that
receives an award from DOE and is financially accountable for the use
of any DOE funds or property provided for the performance of the
project, and is legally responsible for carrying out the terms and
conditions of the award.
Renewal award means an award which adds one or more additional
budget periods to an existing project period.
Research and development means all research activities, both basic
and applied, and all development activities that are supported at
universities, colleges, and other non-profit institutions and
commercial organizations. ``Research'' is defined as a systematic study
directed toward fuller scientific knowledge or understanding of the
subject studied. The term research also includes activities involving
the training of individuals in research techniques where such
activities utilize the same facilities as other research and
development activities and where such activities are not included in
the instruction function. ``Development'' is the systematic use of
knowledge and understanding gained from research directed toward the
production of useful materials, devices, systems, or methods, including
design and development of prototypes and processes.
Sec. 600.4 Deviations.
(a) General. (1) A deviation is the use of any policy, procedure,
form, standard, term, or condition which varies from a requirement of
this part, or the waiver of any such requirement, unless such use or
waiver is authorized or precluded by Federal statute. The use of
optional or discretionary provisions of this part, including special
restrictive conditions used in accordance with Secs. 600.114 and
600.212, are not deviations. Awards to foreign entities and the waiver
of the cost sharing requirements in Sec. 600.30 or the patent
requirements of Sec. 600.27 are not subject to this section.
(2) A single-case deviation is a deviation which applies to one
financial assistance transaction and one applicant, recipient, or
subrecipient only.
(3) A class deviation is a deviation which applies to more than one
financial assistance transaction, applicant, recipient, or
subrecipient.
(b) The DOE officials specified in paragraph (c) of this section
may authorize a deviation only upon a written determination that the
deviation is--
(1) Necessary to achieve program objectives;
(2) Necessary to conserve public funds;
(3) Otherwise essential to the public interest; or
(4) Necessary to achieve equity.
(c) Approval procedures. (1) A deviation request must be in writing
and must be submitted to the responsible DOE Contracting Officer. An
applicant for a subaward or a subrecipient shall submit any such
request through the recipient.
(2) Except as provided in paragraph (c)(3) of this section--
(i) A single-case deviation may be authorized by the responsible
HCA. Any proposed single-case deviation from the requirements of
Sec. 600.27 concerning patents or data shall be referred to the DOE
Patent Counsel for review and concurrence prior to submission to the
HCA.
(ii) A class deviation may be authorized by the Deputy Assistant
Secretary for Procurement and Assistance Management or designee. Any
proposed class deviation from the requirements of Sec. 600.27
concerning patents or data shall be forwarded through the Assistant
General Counsel for Technology Transfer and Intellectual Property or
designee.
(3) Whenever the approval of OMB, other Federal agency, or other
DOE office is required to authorize a deviation, the proposed deviation
must be submitted to the Deputy Assistant Secretary for Procurement and
Assistance Management or designee for concurrence prior to submission
to the authorizing official.
(d) Notice. Whenever a request for a class deviation is approved,
DOE shall publish a notice in the Federal Register at least 15 days
before the class deviation becomes effective. Whenever a class
deviation is contained in a proposed program rule, the preamble to the
proposed rule shall describe the purpose and scope of the deviation.
(e) Subawards. A recipient may use a deviation in a subaward only
with the prior written approval of a DOE Contracting Officer.
Sec. 600.5 Selection of award instrument.
(a) If DOE has administrative discretion in the selection of the
award instrument, the DOE decision as to whether the relationship is
principally one of procurement or financial assistance shall be made
pursuant to the Federal Grant and Cooperative Agreement Act as codified
at 31 U.S.C. 6301-6306. A grant or cooperative agreement shall be the
appropriate instrument, in accordance with this part, when the
principal purpose of the relationship is the transfer of money or
property to accomplish a public purpose of support or stimulation
authorized by Federal statute. In selecting the type of financial
assistance instrument, DOE
[[Page 7168]]
shall limit involvement between itself and the recipient in the
performance of a project to the minimum necessary to achieve DOE
program objectives.
(b) When it is anticipated that substantial involvement will be
necessary between DOE and the recipient during performance of the
contemplated activity, the award instrument shall be a cooperative
agreement rather than a grant. Every cooperative agreement shall
explicitly state the substantial involvement anticipated between DOE
and the recipient during the performance of the project. Substantial
involvement exists if:
(1) Responsibility for the management, control, or direction of the
project is shared by DOE and the recipient; or
(2) Responsibility for the performance of the project is shared by
DOE and the recipient.
(c) Providing technical assistance or guidance of a programmatic
nature to a recipient does not constitute substantial involvement if:
(1) the recipient is not required to follow such guidance;
(2) the technical assistance or guidance is not expected to result
in continuing DOE involvement in the performance of the project; or
(3) The technical assistance or guidance pertains solely to the
administrative requirements of the award.
(d) In cooperative agreements, DOE has the right to intervene in
the conduct or performance of project activities for programmatic
reasons. Intervention includes the interruption or modification of the
conduct or performance of project activities. Suspension or termination
of the cooperative agreement under Secs. 600.162 and 600.243 does not
constitute intervention in the conduct or performance of project
activities.
Sec. 600.6 Eligibility.
(a) General. DOE shall solicit applications for financial
assistance in a manner which provides for the maximum amount of
competition feasible.
(b) Restricted eligibility. If DOE restricts eligibility, an
explanation of why the restriction of eligibility is considered
necessary shall be included in the solicitation, program rule, or
published notice. Except when authorized by statute or program rule, if
the aggregate amount of DOE funds available for award under a
solicitation or published notice is $1,000,000 or more, such
restriction of eligibility shall be supported by a written
determination initiated by the program office and approved by an
official no less than two levels above the initiating program official
and concurred in by the Contracting Officer and legal counsel. Where
the amount of DOE funds is less than $1,000,000, the cognizant HCA and
the Contracting Officer may approve the determination.
(c) Noncompetitive financial assistance. DOE may award a grant or
cooperative agreement on a noncompetitive basis only if the application
satisfies one or more of the following selection criteria:
(1) The activity to be funded is necessary to the satisfactory
completion of, or is a continuation or renewal of, an activity
presently being funded by DOE or another Federal agency, and for which
competition for support would have a significant adverse effect on
continuity or completion of the activity.
(2) The activity is being or would be conducted by the applicant
using its own resources or those donated or provided by third parties;
however, DOE support of that activity would enhance the public benefits
to be derived and DOE knows of no other entity which is conducting or
is planning to conduct such an activity.
(3) The applicant is a unit of government and the activity to be
supported is related to performance of a governmental function within
the subject jurisdiction, thereby precluding DOE provision of support
to another entity.
(4) The applicant has exclusive domestic capability to perform the
activity successfully, based upon unique equipment, proprietary data,
technical expertise, or other such unique qualifications.
(5) The award implements an agreement between the United States
Government and a foreign government to fund a foreign applicant.
(6) Time constraints associated with a public health, safety,
welfare or national security requirement preclude competition.
(7) The proposed project was submitted as an unsolicited proposal
and represents a unique or innovative idea, method, or approach which
would not be eligible for financial assistance under a recent, current,
or planned solicitation, and if, as determined by DOE, a competitive
solicitation would not be appropriate.
(8) The responsible program Assistant Secretary (or official of
equivalent authority), with the approval of the Deputy Assistant
Secretary for Procurement and Assistance Management, determines that a
noncompetitive award is in the public interest. This authority may not
be delegated.
(d) Approval requirements. Determinations of noncompetitive awards
shall be approved, prior to award, by the initiating program official,
by the responsible program Assistant Secretary (or official of
equivalent authority) or designee, who shall be not less than two
organizational levels above that of the project officer, by the
Contracting Officer and shall be concurred in by local legal counsel.
Where the amount of DOE funds is less than $1,000,000 for a
noncompetitive financial assistance award, the determination shall be
approved by the cognizant HCA and the Contracting Officer. Concurrence
for a particular award or class of awards of $1,000,000 or less may be
waived by local legal counsel.
(e) Documentation requirements. A determination of noncompetitive
financial assistance (normally prepared by the responsible program
official) explaining the basis for the proposed noncompetitive award
shall be placed in the award file.
Sec. 600.7 Small and disadvantaged and women-owned business
participation.
(a) DOE encourages the participation in financial assistance awards
of small businesses, including those owned by socially and economically
disadvantaged individuals and women, of historically black colleges,
and of colleges and universities with substantial minority enrollments.
(b) For definitions of the terms in paragraph (a) of this section,
see the Higher Education Act of 1965, and 15 U.S.C. 644, as amended by
the Federal Acquisition Streamlining Act (FASA), and implementing
regulations under FASA issued by the Office of Federal Procurement
Policy.
(c) When entering into contracts under financial assistance awards,
recipients and subrecipients shall comply with the requirements of
Section 600.144 or Section 600.236, as applicable.
Sec. 600.8 Solicitation.
(a) General. A solicitation for financial assistance applications
shall be in the form of a program rule or other publicly available
document which invites the submission of applications by a common due
date or within a prescribed period of time.
(1) A Program Assistant Secretary (or official of equivalent
authority) may annually issue a program notice describing research
areas in which financial assistance is being made available. Such
notice shall also state
[[Page 7169]]
whether the research areas covered by the notice are to be added to
those listed in a previously issued program rule. If they are to be
included, then applications received as a result of the notice may be
treated as having been in response to that previously published program
rule. If they are not to be included, then applications received in
response to the notice are to be treated as unsolicited applications.
Solicitations may be issued by a DOE Contracting Officer or program
office with prior concurrence of the contracting office.
(2) DOE shall publish either a copy or a notice of the availability
of a financial assistance solicitation in the Federal Register. DOE
shall publish solicitations or notices in the Commerce Business Daily
when potential applicants include for-profit organizations or when
there is the potential for significant contracting opportunities under
the resulting financial assistance awards.
(b) Subawards. In accordance with the provisions of the applicable
statute and program rules, if a DOE financial assistance program
involves the award of financial assistance by a recipient to a
subrecipient, the recipient shall provide sufficient advance notice so
that potential subrecipients may prepare timely applications and secure
prerequisite reviews and approvals.
(c) Contents of solicitation. Each solicitation shall provide
information as may be necessary to allow potential applicants to decide
whether to submit an application, to understand how applications will
be evaluated, and to know what the obligations of a recipient would be.
At a minimum, each solicitation must include:
(1) A control number assigned by the issuing DOE office;
(2) The amount of money available for award and, if appropriate,
the expected size of individual awards broken down by areas of priority
or emphasis, and the expected number of awards;
(3) The type of award instrument or instruments to be used;
(4) The Catalog of Federal Domestic Assistance number for the
program;
(5) Who is eligible to apply;
(6) The expected duration of DOE support or the period of
performance;
(7) An application form or the format to be used, location for
application submission, and number of copies required;
(8) The name of the responsible DOE Contracting Officer (or, for
program notices or solicitations issued by the program office, the
program office contact) to contact for additional information, and, as
appropriate, an address where application forms may be obtained;
(9) Whether loans are available under the DOE Minority Economic
Impact (MEI) loan program, 10 CFR part 800, to finance the cost of
preparing a financial assistance application, and, if MEI loans are
available, a general description of the eligibility requirements for
such a loan, a reference to Catalog of Federal Domestic Assistance
Number 81.063, and the name and address of the DOE office from which
additional information and loan application forms can be obtained;
(10) Appropriate periods or due dates for submission of
applications and a statement describing the consequences of late
submission. If programs have established a series of due dates to allow
for the comparison of applications against each other, these dates
shall be indicated in the solicitation;
(11) The types of projects or activities eligible for support;
(12) Evaluation criteria and the weight or relative importance of
each, which may include one or more of the following or other criteria,
as appropriate:
(i) Qualifications of the applicant's personnel who will be working
on the project;
(ii) Adequacy of the applicant's facilities and resources;
(iii) Cost-effectiveness of the project;
(iv) Adequacy of the project plan or methodology;
(v) Management capability of the applicant;
(vi) Sources of financing available to the project. Any requirement
concerning cost sharing shall be clearly stated (See also Sec. 600.30,
Cost Sharing). Cost sharing is generally encouraged. However, unless
cost sharing is required by the solicitation, it shall not be
considered in the evaluation process and shall be considered only at
the time the award is negotiated.
(vii) Relationship of the proposed project to the objectives of the
solicitation;
(13) A listing of program policy factors, if any, indicating the
relative importance of each, if appropriate. Examples of program policy
factors are:
(i) Geographic distribution;
(ii) Diverse types and sizes of applicant entities;
(iii) A diversity of methods, approaches, or kinds of work; and
(iv) Projects which are complementary to other DOE programs or
projects;
(14) References to or copies of:
(i) Statutory authority for the program;
(ii) Applicable rules, including the appropriate subparts of this
part;
(iii) Other terms and conditions applicable to awards to be made
under the solicitation, including allowable and unallowable costs and
reporting requirements;
(iv) Policies and procedures for patents, data, copyrights,
audiovisual productions and exhibits;
(v) Any required assurances not included in the application form;
(15) The deadline for submission of required or optional
preapplications;
(16) Date, time, and location of any briefing for applicants;
(17) Required presubmission reviews and clearances, including a
statement as to whether review under E.O. 12372, ``Intergovernmental
Review of Federal Programs'', is required.
(18) Dates by which selections and awards are expected to be made
and whether unsuccessful applications will be returned to the applicant
or be retained by DOE and for what period of time;
(19) A statement that DOE is under no obligation to pay for any
costs associated with preparation or submission of applications if an
award is not made. If an award is made, such costs may be allowable as
provided in the applicable cost principles (See Secs. 600.127 and
600.222);
(20) A statement that DOE reserves the right to fund, in whole or
in part, any, all, or none of the applications submitted in response to
the solicitation; and
(21) Any other relevant information, including explanatory
information or factual basis for justifications required by this part.
Sec. 600.9 Notice of program interest.
(a) General. (1) DOE may publish periodic Notices of Program
Interest in the Federal Register and other media, as appropriate, which
describes broad, general, technical problems and areas of investigation
for which DOE may award grants or cooperative agreements.
(2) DOE shall evaluate any application submitted under a Notice of
Program Interest as an unsolicited application.
(b) Contents. The notice shall include:
(1) A brief description of the areas of interest for which DOE may
provide financial assistance;
(2) A statement about how resulting applications will be evaluated
and the criteria for selection and funding;
(3) An expiration date with an explanation that such a date does
not represent a common deadline for applications but rather that
applications may be submitted at any time before the notice expires;
and
(4) The location for application submission.
[[Page 7170]]
Sec. 600.10 Form and content of applications.
(a) General. Applications shall be required for all financial
assistance projects or programs.
(b) Forms. Applications shall be on the form or in the format and
in the number of copies specified in a program rule, in the
solicitation, or in these regulations. (See also Secs. 600.112 and
600.210.) For unsolicited applications, a guide for preparation and
submission is available from Field/Headquarters Support Division,
Office of Procurement and Assistance Management, Department of Energy,
1000 Independence Avenue SW., Washington, DC 20585.
(c) Contents of an application. In general, a financial assistance
application shall include:
(1) A facesheet containing basic identifying information. The
facesheet shall be the Standard Form (SF)424 or other approved DOE
application form;
(2) A detailed narrative description of the proposed project,
including the objectives of the project and the applicant's plan for
carrying it out;
(3) A budget with supporting justification; and
(4) Any required preaward assurances.
(d) Incomplete applications. DOE may return an application that:
(1) Is not signed, either in writing or electronically, by an
official authorized to bind the applicant; or
(2) Omits any information or documentation required by statute,
program rule, or the solicitation, if the nature of the omission
precludes review of the application.
(e) Supplemental information. During the review of a complete
application, DOE may request the submission of additional information
only if the information is essential to evaluate the application.
Sec. 600.11 Intergovernmental review.
Intergovernmental review of DOE financial assistance shall be
conducted in accordance with 10 CFR part 1005.
Sec. 600.12 Generally applicable requirements.
(a) Except as expressly exempted by Federal statute or program
rule, recipients and subrecipients of DOE financial assistance shall
comply with all generally applicable requirements to which they are
subject. Generally applicable requirements include, but are not limited
to, the requirements of this part, Federal statutes, the OMB Circulars
and other Governmentwide guidance implemented by this part, Executive
Orders, and the requirements identified in appendix A of this part.
(b) Provisions shall be made to design and construct all buildings,
in which DOE funds are used, to meet appropriate seismic design and
construction standards. Seismic codes and standards meeting or
exceeding the provisions of each of the model codes listed in this
paragraph are considered to be appropriate for purposes of this part.
These codes provide a level of seismic safety that is substantially
equivalent to the National Earthquake Hazards Reduction Program (NEHRP)
Recommended Provisions for the Development of Seismic Regulations for
New Buildings, 1988 Edition (Federal Emergency Management
Administration 222 and 223). Revisions of these model codes that are
substantially equivalent to or exceed the then current or immediately
preceding edition of the NEHRP Recommended Provisions (which are
updated triennially) shall be considered to be appropriate standards.
The model codes are as follows:
(1) 1991 Uniform Building Code, of the International Council of
Building Officials,
(2) 1992 Supplement to the National Building Code, of the Building
Official and Code Administrators International.
(3) 1992 Amendments to the Standard Building Code, of the Southern
Building Code Congress International.
Sec. 600.13 Objective merit review.
(a) General. (1) It is the policy of DOE that any financial
assistance be awarded through a merit-based selection process.
Objective merit review means a thorough, consistent and independent
examination of applications based on pre-established criteria by
persons knowledgeable in the field of endeavor for which support is
requested.
(2) Each program office must establish an objective merit review
system covering the financial assistance programs it administers.
Objective merit review of financial assistance applications is intended
to be advisory and is not intended to replace the authority of the
project/program official with responsibility for deciding whether an
award will be made. It is expected that the cognizant project/program
officer(s) who will select or be in the direct chain of supervision
recommending selection or rejection of applications will not be a part
of the objective review group. The objective merit review system must
set forth the relationship between the reviewing individuals, or the
review committees or groups, program/project management involved with
directly advising the selection official with respect to program/
project policy considerations and the selection official who has the
final decision-making authority. In defining this relationship, the
system must set out, as a minimum, the decision-making and
documentation processes to be followed by the selection official in
accepting or rejecting objective merit review recommendations.
(b) Each formal review system must contain the following elements:
(1) Basic review standards. Applications should undergo an initial
review for conformance with technical and administrative requirements
stated in the notice or solicitation and for funding availability. For
applications which pass the initial review, the DOE evaluation shall be
in accordance with stated evaluation criteria set forth in the
applicable program rule or notice, solicitation, or, where appropriate,
the unsolicited proposal criteria in Sec. 600.6(c)(7).
(2) Applications which have successfully completed an initial
review are normally subjected to an objective merit review by a group
comprised of three or more professionally and technically qualified
persons. This advisory review is limited to technical and/or cost
matters and should be separate from any programmatic review of program/
policy factors involved in making a selection/rejection decision.
(3) The reviewers of any particular application may be any mixture
of federal or non-federal experts, including individuals from within
the cognizant program office, except those involved in approving/
disapproving the application. The DOE shall select external (non-DOE
Federal or non-federal) reviewers on the basis of their professional
qualifications and expertise.
(c) Reviewers with interest in application being reviewed.
Reviewers must comply with the requirements for the avoidance of
conflict of interest established in Sec. 600.14.
(d) Outside reviewers. An outside reviewer shall be required to
sign, either in writing or electronically, a written statement agreeing
to use the application information only for review and to treat it in
confidence except to the extent that the information is available to
the general public without restriction as to its use from any source,
including the applicant. Further, the reviewer shall be required to
agree to comply with any notice or restriction placed on the
application. Upon completion of the review, the reviewer shall return
all copies of the application (or abstracts, if any) to DOE; and unless
authorized by DOE, the reviewer shall not contact the applicant
concerning any aspect of the application.
[[Page 7171]]
Sec. 600.14 Conflict of interest.
Any person who participates in the review of applications for DOE
financial assistance or in the administration of DOE financial
assistance shall comply with 1010.101(a) and 1010.302(a)(1) of the DOE
rules on the conduct of employees and special employees (consultants)
at 10 CFR part 1010. Current and former DOE employees who participate
in any aspect of the financial assistance process shall comply with all
applicable requirements of 10 CFR part 1010.
Sec. 600.15 Authorized uses of information.
(a) General. Information contained in applications shall be used
only for evaluation purposes unless such information is generally
available to the public or is already the property of the Government.
The Trade Secrets Act, 18 U.S.C. 1905, prohibits the unauthorized
disclosure by Federal employees of trade secret and confidential
business information.
(b) Treatment of application information. (1) An application may
include technical data and other data, including trade secrets and/or
privileged or confidential commercial or financial information, which
the applicant does not want disclosed to the public or used by the
Government for any purpose other than application evaluation. To
protect such data, the applicant should specifically identify each page
including each line or paragraph thereof containing the data to be
protected and mark the cover sheet of the application with the
following Notice as well as referring to the Notice on each page to
which the Notice applies:
Notice of Restriction on Disclosure and Use of Data
The data contained in pages ______ of this application have been
submitted in confidence and contain trade secrets or proprietary
information, and such data shall be used or disclosed only for
evaluation purposes, provided that if this applicant receives an
award as a result of or in connection with the submission of this
application, DOE shall have the right to use or disclose the data
herein to the extent provided in the award. This restriction does
not limit the Government's right to use or disclose data obtained
without restriction from any source, including the applicant.
(2) Unless a solicitation specifies otherwise, DOE shall not refuse
to consider an application solely on the basis that the application is
restrictively marked.
(3) Data (or abstracts of data) marked with the Notice under
paragraph (b)(1) of this section shall be retained in confidence and
used by DOE or its designated representatives as specified in
Sec. 600.13 solely for the purpose of evaluating the proposal. The data
so marked shall not be disclosed or used for any other purpose except
to the extent provided in any resulting award, or to the extent
required by law, including the Freedom of Information Act (5 U.S.C.
552) (10 CFR part 1004). The Government shall not be liable for
disclosure or use of unmarked data and may use or disclose such data
for any purpose.
(4) The Government shall obtain unlimited rights in the technical
data contained in any application which results in an award except
those portions of the technical data which the applicant asserts and
properly marks as proprietary data, or which are not directly related
to or will not be utilized in the project and are deleted from the
application with the concurrence of DOE.
(5) The clause at 48 CFR 52.227-23, which applies only to technical
data and not to other data such as privileged or confidential
commercial or financial information shall apply to every award.
Sec. 600.16 Legal authority and effect of an award.
(a) A DOE financial assistance award is valid only if it is in
writing and is signed, either in writing or electronically, by a DOE
Contracting Officer.
(b) DOE funds awarded under a grant or cooperative agreement shall
be obligated as of the date the DOE Contracting Officer signs the
award; however, the recipient is not authorized to incur costs under an
award prior to the beginning date of the budget period shown in the
award except as may be authorized in accordance with Secs. 600.125(e)
or 600.230 of this part. The duration of the DOE financial obligation
shall not extend beyond the expiration date of the budget period shown
in the award unless authorized by a DOE Contracting Officer by means of
a continuation or renewal award or other extension of the budget
period.
Sec. 600.17 Contents of award.
Each financial assistance award shall be made on a Notice of
Financial Assistance Award (DOE F 4600.1) which contains basic
identifying and funding information together with attachments including
a budget, any special terms and conditions, and any other provisions
necessary to establish the respective right, duties, obligation, and
responsibilities of DOE and the recipient, consistent with the
requirements of this part.
Sec. 600.18 Recipient acknowledgement of award.
(a) After signature by the DOE Contracting Officer, the award shall
be sent to the recipient. The recipient shall acknowledge acceptance by
returning a copy signed either in writing or electronically. No DOE
funds shall be disbursed until the award document signed by the
recipient is received by DOE.
(b) In the event a recipient declines an award, DOE shall
deobligate the funds obligated by the award after providing the
applicant with at least two weeks written notice of DOE's intention to
deobligate.
(c) After the recipient acknowledges the award, the terms and
conditions of the award may be amended only upon the written request or
with the written concurrence of the recipient unless the amendment is
one which DOE may make unilaterally in accordance with a program rule
or this part.
Sec. 600.19 Notification to unsuccessful applicants.
DOE shall promptly notify in writing each applicant whose
application has not been selected for award or whose application cannot
be funded because of the unavailability of appropriated funds. If the
application was not selected, the written notice shall briefly explain
why the application was not selected and, if for grounds other than
unavailability of funds, shall offer the unsuccessful applicant the
opportunity for a more detailed explanation upon request.
Sec. 600.20 Maximum DOE obligation.
(a) The maximum DOE obligation to the recipient is--
(1) For monetary awards, the amount shown in the award as the
amount of DOE funds obligated, and
(2) Any designated property.
(b) DOE shall not be obligated to make any additional,
supplemental, continuation, renewal, or other award for the same or any
other purpose.
Sec. 600.21 Access to records.
(a) In addition to recipient and subrecipient responsibilities
relative to access to records specified in Secs. 600.153 and 600.242,
for any negotiated contract or subcontract in excess of $10,000 under a
grant or cooperative agreement, DOE, the Comptroller General of the
United States, the recipient and the subrecipient (if the contract was
awarded under a financial assistance subaward), or any of their
authorized representatives shall have the right of access to any books,
documents, papers, or other records of the contractor or subcontractor
which are pertinent to
[[Page 7172]]
that contract or subcontract, in order to make audit, examination,
excerpts, and copies.
(b) The right of access may be exercised for as long as the
applicable records are retained by the recipient, subrecipient,
contractor, or subcontractor.
Sec. 600.22 Disputes and appeals.
(a) Informal dispute resolution. Whenever practicable, DOE shall
attempt to resolve informally any dispute over the award or
administration of financial assistance. Informal resolution, including
resolution through an alternative dispute resolution mechanism, shall
be preferred over formal procedures available in 10 CFR Part 1024, to
the extent practicable.
(b) Alternative dispute resolution (ADR). Before issuing a final
determination in any dispute in which informal resolution has not been
achieved, the Contracting Officer shall suggest that the other party
consider the use of voluntary consensual methods of dispute resolution,
such as mediation. The DOE dispute resolution specialist is available
to provide assistance for such disputes, as are trained mediators of
other federal agencies. ADR may be used at any stage of a dispute.
(c) Final determination. Whenever a dispute is not resolved
informally or through an alternative dispute resolution process, DOE
shall mail (by certified mail) a brief written determination signed by
a Contracting Officer, setting forth DOE's final disposition of such
dispute. Such determination shall contain the following information:
(1) A summary of the dispute, including a statement of the issues
and of the positions taken by the Department and the party or parties
to the dispute; and
(2) The factual, legal and, if appropriate, policy reasons for
DOE's disposition of the dispute.
(d) Right of appeal. (1) Except as provided in paragraph (f)(1) of
this section, the final determination under paragraph (c) of this
section may be appealed to the Financial Assistance Appeals Board (the
Board) in accordance with the procedures set forth in 10 CFR part 1024.
(2) If the final determination under paragraph (c) of this section
involves a dispute over which the Board has jurisdiction as provided in
paragraph (f)(2) of this section, the Contracting Officer's
determination shall state that, with respect to such dispute, the
determination shall be the final decision of the Department unless,
within 60 days, a written notice of appeal is filed.
(3) If the final determination under paragraph (c) of this section
involves a dispute over which the Board has no jurisdiction as provided
in paragraph (f)(1) of this section, the Contracting Officer's
determination shall state that, effective immediately or on a later
date specified therein, the determination shall, with respect to such
dispute, be the final decision of the Department.
(e) Effect of appeal. The filing of an appeal with the Board shall
not stay any determination or action taken by DOE which is the subject
of the appeal. Consistent with its obligation to protect the interests
of the Federal Government, DOE may take such authorized actions as may
be necessary to preserve the status quo pending decision by the Board,
or to preserve its ability to provide relief in the event the Board
decides in favor of the appellant.
(f) Review on appeal. (1) The Board shall have no jurisdiction to
review:
(i) Any preaward dispute (except as provided in paragraph
(f)(2)(ii) of this section), including use of any special restrictive
condition pursuant to Secs. 600.114 or 600.212;
(ii) DOE denial of a request for a deviation under Secs. 600.4,
600.103, or 600.205 of this part;
(iii) DOE denial of a request for a budget revision or other change
in the approved project under Secs. 600.125, 600.127, 600.222, or
600.230 of this part or under another term or condition of the award;
(iv) Any DOE action authorized under Secs. 600.162(a) (1), (2), (3)
or (5); or Secs. 600.243 (a)(1), (a)(3) for suspensions only; or
Sec. 600.162(a)(4) or Sec. 600.243(a)(4) for actions disapproving
renewal applications or other requests for extension of time or
additional funding for the same project when related to recipient
noncompliance, or such actions authorized by program rule;
(v) Any DOE decision about an action requiring prior DOE approval
under Sec. 600.144, or Sec. 600.236 of this part or under another term
or condition of the award;
(vi) A DOE decision not to make a continuation award, which
decision is based on the insufficiency of available appropriations;
(vii) Any matter which is under the jurisdiction of the Patent
Compensation Board (10 CFR 780.3);
(viii) Any matter which may be heard by the Invention Licensing
Appeals Board (10 CFR 781.65 and 781.66); and
(ix) Any other dispute not described in paragraph (f)(2) of this
section.
(2) In addition to any right of appeal established by program rule,
or by the terms and conditions (not inconsistent with paragraph (f)(1)
of this section) of an award, the Board shall have jurisdiction to
review:
(i) A DOE determination that the recipient has failed to comply
with the applicable requirements of this part, the program statute or
rules, or other terms and conditions of the award;
(ii) A DOE decision not to make a continuation award based on any
of the determinations described in paragraph (f)(2)(i) of this section;
(iii) Termination of an award for cause, in whole or in part, by
DOE;
(iv) A DOE determination that an award is void or invalid;
(v) The application by DOE of an indirect cost rate; and
(vi) DOE disallowance of costs.
(3) In reviewing disputes authorized under paragraph (f)(2) of this
section, the Board shall be bound by the applicable law, statutes, and
rules, including the requirements of this part, and by the terms and
conditions of the award.
(4) The decision of the Board shall be the final decision of the
Department.
Sec. 600.23 Debarment and suspension.
Applicants, recipients, subrecipients, and contractors under
financial assistance awards may be debarred and suspended for the
causes and in accordance with the procedures set forth in 10 CFR part
1036.
Sec. 600.24 Noncompliance.
(a) Except for noncompliance with nondiscrimination requirements
under 10 CFR part 1040, whenever DOE determines that a recipient has
not complied with the applicable requirements of this part, with the
requirements of any applicable program statute or rule, or with any
other term or condition of the award, a DOE Contracting Officer shall
provide to the recipient (by certified mail, return receipt requested)
a written notice setting forth:
(1) The factual and legal bases for the determination of
noncompliance;
(2) The corrective actions and the date (not less than 30 days
after the date of the notice) by which they must be taken.
(3) Which of the actions authorized under Secs. 600.122(n),
600.162(a) or Sec. 600.243(a) of this part DOE may take if the
recipient does not achieve compliance within the time specified in the
notice, or does not provide satisfactory assurances that actions have
been initiated which will achieve compliance in a timely manner.
(b) DOE may take any of the actions set forth in Sec. 600.121(n,),
Sec. 600.162(a),
[[Page 7173]]
or Sec. 600.243(a) of this part concurrent with the written notice
required under paragraph (a) of this section or with less than 30 days
written notice to the recipient whenever:
(1) There is evidence the award was obtained by fraud;
(2) The recipient ceases to exist or becomes legally incapable of
performing its responsibilities under the financial assistance award;
or
(3) There is a serious mismanagement or misuse of financial
assistance award funds necessitating immediate action.
Sec. 600.25 Suspension and termination.
(a) Suspension and termination for cause. DOE may suspend or
terminate an award for cause on the basis of:
(1) a noncompliance determination under Secs. 600.24, 600.122(n),
600.162(a), or Sec. 600.243(a); or
(2) an suspension or debarment of the awardee under Sec. 600.23.
(b) Notification requirements. Except as provided in Sec. 600.24,
600.162(a), or Sec. 600.243(a) before suspending or terminating a award
for cause, DOE shall mail to the awardee (by certified mail, return
receipt requested) a separate written notice in addition to that
required by Secs. 600.24(a), 600.162(a), or Sec. 600.243(a) at least
ten days prior to the effective date of the suspension or termination.
Such notice shall include, as appropriate:
(1) The factual and legal bases for the suspension or termination;
(2) The effective date or dates of the DOE action;
(3) If the action does not apply to the entire award, a description
of the activities affected by the action;
(4) Instructions concerning which costs shall be allowable during
the period of suspension, or instructions concerning allowable
termination costs, including in either case, instructions concerning
any subgrants or contracts;
(5) Instructions concerning required final reports and other
closeout actions for terminated awards (see Secs. 600.170 through
600.173 and Secs. 600.250 through 600.252);
(6) A statement of the awardee's right to appeal a termination for
cause pursuant to Sec. 600.22; and
(7) The dated signature of a DOE Contracting Officer.
(c) Suspension. (1) Unless DOE and the awardee agree otherwise, no
period of suspension shall exceed 90 days.
(2) DOE may cancel the suspension at any time, up to and including
the date of expiration of the period of suspension, if the awardee
takes satisfactory corrective action before the expiration date of the
suspension or gives DOE satisfactory evidence that such corrective
action will be taken.
(3) If the suspension has not been cancelled by the expiration date
of the period of suspension, the awardee shall resume the suspended
activities or project unless, prior to the expiration date, DOE
notifies the awardee in writing that the period of suspension shall be
extended consistent with paragraph (c)(1) of this section or that the
award shall be terminated.
(4) As of the effective date of the suspension, DOE shall withhold
further payments and shall allow new obligations incurred by the
awardee during the period of suspension only if such costs were
authorized in the notice of suspension or in a subsequent letter.
(5) If the suspension is cancelled or expires and the award is not
terminated, DOE shall reimburse the awardee for any authorized
allowable costs incurred during the suspension and, if necessary, may
amend the award to extend the period of performance.
(d) Termination by mutual agreement. In addition to any situation
where a termination for cause pursuant to Secs. 600.24, 600.160 through
600.162 or Secs. 600.243 through 600.244 is appropriate, either DOE or
the awardee may initiate a termination of an award (or portion thereof)
as described in this paragraph. If the awardee initiates a termination,
the awardee must notify DOE in writing and specify the awardee's
reasons for requesting the termination, the proposed effective date of
the termination, and, in the case of a partial termination, a
description of the activities to be terminated, and an appropriate
budget revision. DOE shall terminate an award or portion thereof under
this paragraph only if both parties agree to the termination and the
conditions under which it shall occur. If DOE determines that the
remaining activities under a partially terminated award would not
accomplish the purpose for which the award was originally awarded, DOE
may terminate the entire award.
(e) Effect of termination. The awardee shall incur no new
obligations after the effective date of the termination of an award (or
portion thereof), and shall cancel as many outstanding obligations as
possible. DOE shall allow full credit to the awardee for the DOE share
of noncancellable obligations properly incurred by the awardee prior to
the effective date of the termination.
(f) Subgrants. Awardees shall follow the policies and procedures in
this section and in Secs. 600.24, 600.160 through 600.162 or
Secs. 600.243 through 600.244 for suspending and terminating subgrants.
Sec. 600.26 Funding.
(a) General. The project period during which DOE expects to provide
award support for an approved project shall be specified on the Notice
of Financial Assistance Award (DOE Form 4600.1).
(b) Budget period and continuation awards. If the project period is
12 months or less, the budget period and the project period shall be
coextensive. Multiyear awards, including formula awards, shall
generally be funded annually within the approved project period.
Funding for each budget period within the project period shall be
contingent on DOE approval of a continuation application submitted in
accordance with a schedule specified by DOE. A continuation application
shall include:
(1) A statement of technical progress or status of the project to
date;
(2) A detailed description of the awardee's plans for the conduct
of the project during the coming year; and
(3) A detailed budget for the upcoming budget period, including an
estimate of unobligated balances. A detailed budget need not be
submitted if the new or renewal application contained future-year
budgets sufficiently detailed to allow DOE to review and approve the
categories and elements of cost. Should the award have a change in
scope or significant change in the budget, DOE may request a detailed
budget.
(4) DOE shall review a continuation application for the adequacy of
the awardee's progress and planned conduct of the project in the
subsequent budget period. DOE shall not require a continuation
application to compete against any other application. The amount and
award of continuation funding is subject to the availability of
appropriations.
(c) Renewal awards. Discretionary renewal awards may be made either
on the basis of a solicitation or on a noncompetitive basis. If DOE
proposes to restrict eligibility for a discretionary renewal award to
the incumbent grantee, the noncompetitive award must be justified in
accordance with Sec. 600.6(b)(2). Renewal applications must be
submitted no later than 6 months prior to the scheduled expiration of
the project period unless a program rule or other published instruction
establishes a different application deadline.
(d) Extensions. Unless otherwise specified in the award terms and
conditions, recipients of financial assistance awards, except
recipients of SBIR awards (See Sec. 600.181), may extend the expiration
date of the final budget period of the project (thereby extending the
project period) if
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additional time beyond the established expiration date is needed to
assure adequate completion of the original scope of work within the
funds already made available. A single extension, which shall not
exceed twelve (12) months, may be made for this purpose, and must be
made prior to the originally established expiration date. The recipient
must notify the cognizant DOE Contracting Officer in the awarding
office in writing within ten (10) days of making the extension.
Sec. 600.27 Patent and data provisions.
(a) General. Financial assistance shall be awarded and administered
by DOE in compliance with the patent and data provisions of this
section (See also Secs. 600.136 and 600.234.) To the extent not
otherwise provided in this part, the policies, procedures and clauses
referenced for contracts in 48 CFR part 927 and 41 CFR part 9-9 shall
normally be applicable to the award and administration of Departmental
grants and cooperative agreements. Copies of 41 CFR part 9-9 are
available by contacting the DOE Patent Counsel.
(b) Required clauses. In all solicitations and awards both for the
support of research, development, and demonstration and for other
efforts, the DOE Contracting Officer shall consult the DOE Patent
Counsel for applicable patent and data clauses from those listed below
and/or for modifications thereto. In reading each 48 CFR part 27 and 48
CFR part 952 patent and data clause selected for inclusion in a
solicitation or award, the term ``contract'' when referring to a prime
contract shall be read as ``award.'' The term ``contractor'' shall be
read as referring to the ``awardee.'' The term ``subcontract'' shall be
read as ``subaward or a procurement contract under an award or subaward
and/or a procurement subcontract under an awardee's or subawardee's
contract.'' The term ``Acquisition'' with respect to the Long Form
Patent Rights Clause shall be read as ``Retention.'' The terms
``offerors'' and ``quoters'' shall be read as ``applicants,'' and
``proposal'' and ``quotation'' shall be read as ``application.''
(1) Patent clauses. (i) (Short Form Patent Clause). Incorporate the
clause at 48 CFR 952.227-11 for awards to a domestic small business
firm or nonprofit organization as defined at 48 CFR 27.301. In
accordance with 35 U.S.C. 202(a)(ii), the DOE may issue an exceptional
circumstances determination. To implement any exceptional circumstances
determination, DOE will modify 48 CFR 952.227-11 to retain greater
rights in subject inventions. Such modifications will be only to the
extent necessary to implement the exceptional circumstances
determination.
(ii) (Long Form Patent Clause). For awards to a large business firm
or other organization, other than a domestic small business firm or
nonprofit organization as set forth in 48 CFR 27.301, incorporate the
clause at 48 CFR 952.227-13.
(iii) The notice of Right to Request Patent Waiver at 48 CFR
952.227-84 shall also be inserted in all solicitations to advise
applicants of their rights to request in advance of, or within 30 days
after the award is signed, a waiver of all or any part of the rights of
the United States with respect to subject inventions. For unsolicited
applications, DOE shall provide this notice to the applicant prior to
award.
(2) Data Clauses (includes copyright provisions) (i) Rights in
Data--General. (A) Incorporate 48 CFR 52.227-14 with Alternates I and
V. Solicitations shall also include the Representation of Limited
Rights Data and Restricted Computer Software clause at 48 CFR 52.227-
15.
(B) In awards for grants and cooperative agreements with
institutions of higher education, hospitals, and other non-profit
organizations, the following paragraph (c) will be used in lieu of the
provisions in 48 CFR 52.227-14(c):
(c) Copyright. (1) Data first produced in the performance of the
award. Except as otherwise specifically provided in this award, the
recipient may establish claim to copyright subsisting in any data
first produced in the performance of this award. When claim to
copyright is made, the Recipient shall affix the applicable
copyright notice of 17 U.S.C. 401 or 402 and acknowledgement of
Government sponsorship (including award number) to the data when
such data are delivered to the Government, as well as when the data
are published or deposited for registration as a published work in
the U.S. Copyright Office. The recipient grants to the Government a
royalty-free, nonexclusive and irrevocable right to reproduce,
publish, or otherwise use the work for Federal purposes, and to
authorize others to do so. The right to publish includes the right
to publicly distribute. The right to use the work for Federal
purposes includes the right to prepare derivative works.
(C) For grants and cooperative agreements with commercial
organizations, foreign governments, organizations under the
jurisdiction of foreign governments, and international organizations,
the provisions of the following paragraph (d)(3) shall be used in
addition to the provisions in 48 CFR 52.227-14:
(d)(3) The Recipient agrees not to establish claim to copyright
in computer software first produced in the performance of this award
without prior written permission of the Contracting Officer. When
such permission is granted, the Contracting Officer shall specify
appropriate terms to assure dissemination of the software. The
recipient shall promptly deliver to the Contracting Officer or to
the DOE Patent Counsel designated by the Contracting Officer a duly
executed and approved instrument fully confirmatory of all rights to
which the Government is entitled, and other terms pertaining to the
computer software to which claim to copyright is made.
(D) If programmatic needs on a particular award require the
delivery to the Government of limited rights data or restricted
computer software, Alternates II or III of 48 CFR 52.227-14 shall also
be added.
(ii) Restriction on Disclosure and Use of Data. Insert the Notice
at Sec. 600.15(b)(1) in all solicitations.
(iii) Rights to Application Data. As discussed at
Sec. 600.15(b)(5), incorporate 48 CFR 52.227-23.
(iv) Additional data requirements. Incorporate 48 CFR 52.227-16. In
the event all technical data requirements are known in advance of and
are set forth in the agreement or, the award is for the performance of
basic or applied research and is to be performed solely by a university
or college as discussed in 48 CFR 27.406(b), 48 CFR 52.227-16 does not
need to be incorporated.
(3) Authorization and consent. Incorporate 48 CFR 52.227-1 or
Alternates I or II, as appropriate, in accordance with the guidance in
48 CFR 927.201-1 and 48 CFR 27.201.
(4) Patent indemnity. Incorporate the clause set forth in 48 CFR
52.227-3, as appropriate, in accordance with the guidance in 48 CFR
27.203-1 and 48 CFR 27.203-3.
(5) Filing of Patent Applications-Classified Subject Matter.
Incorporate the following paragraphs in any solicitation or award which
covers, or is likely to cover, classified subject matter:
Classified Inventions
(a) The recipient shall not file or cause to be filed on any
invention or discovery conceived or first actually reduced to
practice in the course of or under this award in any country other
than the United States, an application or registration for a patent
without first obtaining written approval of the Contracting Officer.
(b) When filing a patent application in the United States on any
invention or discovery conceived of or first actually reduced to
practice in the course of or under this award, the subject matter of
which is classified for reasons of security, the awardee shall
observe all applicable security regulations covering the
transmission of classified subject matter. When transmitting the
patent application to the United States Patent and Trademark
[[Page 7175]]
Office, the awardee shall, by separate letter, identify by agency and
agreement number the award(s) which require security classification
markings to be placed on the application.
(6) Notice and Assistance Regarding Patent and Copyright
Infringement. Incorporate the clause at 48 CFR 52.227-2, in accordance
with the guidance in 48 CFR 27.202, in all awards in excess of $100,000
for construction, research, development, and demonstration work which
is to be performed within the United States, its possessions, or Puerto
Rico.
(7) Royalty Information. Incorporate 48 CFR 52.227-6.
(8) Refund of Royalties. As discussed in 48 CFR 927.206,
incorporate the clause at 48 CFR 952.227-9 in solicitations and awards
where the Contracting Officer believes royalties will have to be paid
by the awardees or subawardee or contractor at any tier.
(9) Subawards and contracts under award. The recipient shall
include the applicable clauses of this section in any subaward or
contract awarded under the award and assure that the applicable clauses
are also included by subrecipients in contracts.
Sec. 600.28 Restrictions on lobbying.
Procedures regarding restrictions on lobbying activities of
applicants and recipients are contained in 10 CFR 601.110.
Sec. 600.29 Fixed obligation awards.
(a) General. This section contains provisions applicable to the
award of financial assistance instruments on a fixed amount basis.
Under a fixed obligation award, funds are issued in support of a
project without a requirement for Federal monitoring of actual costs
subsequently incurred.
(b) Provisions applicable to fixed obligation awards. Financial
assistance awards may be made on a fixed obligation basis subject to
the following requirements:
(1) Each fixed obligation award may neither exceed $100,000 nor
exceed one year in length.
(2) Programs which require mandatory cost sharing are not eligible.
(3) Proposed costs must be analyzed in detail to ensure consistency
with applicable cost principles.
(4) Budget categories are not stipulated in making an award.
However, budgets are submitted by an applicant and reviewed for
purposes of establishing the amount to be awarded.
(5) Payments must be made in the same manner as other financial
assistance awards, except that when determined appropriate by the
cognizant program official and contracting officer a lump sum payment
may be made.
(6) Recipients must certify in writing to the contracting officer
at the end of the project that the activity was completed or the level
of effort was expended, however should the activity or effort not be
carried out, the recipient would be expected to make appropriate
reimbursements.
(7) Periodic reports may be established for each award so long as
they are not more frequently than quarterly.
(8) Changes in principal investigator or project leader, scope of
effort, or institution, must receive the prior approval of the
Department.
Sec. 600.30 Cost sharing.
In addition to the requirements of Sec. 600.123 or Sec. 600.224,
the following requirements apply to research, development, and
demonstration projects:
(a) When DOE awards financial assistance for research, development,
and demonstration projects where the primary purpose of the project is
the ultimate commercialization and utilization of technology by the
private sector and when there are reasonable expectations that the
recipient will receive significant present or future economic benefits
beyond the instant award as a result of the performance of the project,
cost sharing shall be required. Unless the cost sharing is required by
statute, a waiver of the requirement on a single-case or class basis
may be approved by the cognizant Program Assistant Secretary or
designee.
(b) Except as provided in section 3002 of the Energy Policy Act of
1992, 42 U.S.C. 13542, or program rule, DOE will decide, on a case-by-
case basis, the amount of cost sharing required for a particular
project.
(c) Factors in addition to those specified in Sec. 600.123 or
Sec. 600.224, which may be considered when negotiating cost sharing for
research, development, and demonstration projects include the potential
benefits to a recipient resulting from the project and the length of
time before a project is likely to be commercially successful.
[FR Doc. 96-4144 Filed 2-23-96; 8:45 am]
BILLING CODE 6450-01-P
