[Federal Register Volume 64, Number 179 (Thursday, September 16, 1999)]
[Proposed Rules]
[Pages 50334-50388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23031]
[[Page 50333]]
_______________________________________________________________________
Part II
National Aeronautics and Space Administration
_______________________________________________________________________
14 CFR Parts 1260 and 1274
NASA Grants and Cooperative Agreements; Proposed Rule
Federal Register / Vol. 64, No. 179 / Thursday, September 16, 1999 /
Proposed Rules
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Parts 1260 and 1274
NASA Grants and Cooperative Agreements
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: This proposed rule revises NASA's grant and cooperative
agreement regulations in order to clarify and amplify administrative
requirements. Revisions have been made to reduce administrative
requirements on grant and cooperative agreement recipients and ensure
that uniform policies are followed by NASA centers.
DATES: Comments should be submitted on or before November 15, 1999.
ADDRESSES: Interested parties should submit written comments to Jeff
Lupis, NASA Headquarters, Office of Procurement, Analysis Division
(Code HC), Washington, DC 20546. Comments may also be submitted by e-
mail to jlupis@hq.nasa.gov.
FOR FURTHER INFORMATION CONTACT: Jeff Lupis, NASA Headquarters, Code
HC, Washington, DC 20546, telephone: (202) 358-0462; e-mail:
jlupis@hq.nasa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
A comprehensive revision is being made to NASA grant and
cooperative agreement policy codified at 14 CFR 1260, Grants and
Cooperative Agreements, and 14 CFR 1274, Grants and Cooperative
Agreements with Commercial Firms. The revision has been initiated by
NASA as part of re-engineering the process for awarding and
administering grants and cooperative agreements. Changes are chiefly
aimed at reducing paperwork requirements or clarifying pre-established
policies. Three new policies being adopted by NASA relating to titling
of equipment, awarding grants to commercial organizations, and vendor
registration in the DoD Central Contractor Registration (CCR) System
are policies already in use by other agencies. A synopsis of some of
the more significant changes being adopted under this revision are:
incorporation of a standard grant and cooperative agreement cover page;
a new grant numbering system; expanded guidance on appropriate use of
grant awards; clarification on participation by foreign organizations;
reduction in the lead time goal for awarding grants; streamlined grant
award documentation; clarification of grant administration
responsibilities; a new policy allowing the award of grants to
commercial firms; a new policy that (except for exceptional
circumstances) vests title to acquired equipment with the grant
recipient as ``exempt'' property, and a new policy requiring CCR
registration prior to award of a grant or cooperative agreement.
B. Regulatory Flexibility Act
An initial Regulatory Flexibility Analysis has not been prepared
because the proposed changes are not expected to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The
revisions made under this proposed rule are largely limited to
administrative changes to the grant and cooperative agreement award and
administration process, other changes (e.g. vesting of title to
property to grant recipients) will not have a significant economic
impact. Also, an estimated two thirds of NASA vendors are already
registered in the CCR System.
C. Paperwork Reduction Act
This proposed rule includes a new requirement for collection of
information from grant and cooperative agreement recipients for CCR
registration. This collection of information requires NASA to obtain
approval from the Office of Management and Budget under 44 U.S.C. 3501,
et seq. The required approval will be requested.
List of Subjects in 14 CFR Parts 1260 and 1274
Grant Programs--Science and Technology.
Tom Luedtke,
Associate Administrator for Procurement.
Accordingly, 14 CFR Chapter V is proposed to be amended as follows:
1. Part 1260 is revised to read as follows:
PART 1260--GRANTS AND COOPERATIVE AGREEMENTS
Subpart A--General
Sec.
1260.1 Authority.
1260.2 Purpose.
1260.3 Definitions.
1260.4 Applicability.
1260.5 Amendment.
1260.6 Publication.
1260.7 Deviations.
Pre-Award Requirements
1260.10 Proposals.
1260.11 Evaluation and selection.
1260.12 Choice of award instrument.
1260.13 Award procedures.
1260.14 Limitations.
1260.15 Format and numbering.
1260.16 Distribution.
Provisions
1260.20 Provisions.
1260.21 Compliance with OMB Circular A-110.
1260.22 Technical publications and reports.
1260.23 Extensions.
1260.24 Termination and enforcement.
1260.25 Change in principal investigator or scope.
1260.26 Financial management.
1260.27 Equipment and other property.
1260.28 Patent rights.
1260.29 Invention reporting and rights.
1260.30 Rights in data.
1260.31 National security.
1260.32 Nondiscrimination.
1260.33 Subcontracts.
1260.34 Clean air and water.
1260.35 Investigative requirements.
1260.36 Travel and transportation.
1260.37 Safety.
1260.38 Drug-Free Workplace.
Special Conditions
1260.50 Special conditions.
1260.51 Cooperative agreement special condition.
1260.52 Multiple year grant or cooperative agreement.
1260.53 Incremental funding.
1260.54 Cost sharing.
1260.55 Reports substitution.
1260.56 Withholding.
1260.57 New technology
1260.58 Designation of new technology representative and patent
representative.
1260.59 Choice of law.
1260.60 Public information.
1260.61 Allocation of risk/liability.
1260.62 Payment--to foreign organizations.
1260.63 Customs clearance and visas.
1260.64 Taxes.
1260.65 Exchange of technical data and goods.
1260.66 Listing of reportable equipment and other property.
1260.67 Equipment and other property under grants with commercial
firms.
1260.68 Invoices and payments under grants with commercial firms.
1260.69 Electronic funds transfer payment methods.
Post-Award Requirements
1260.70 Delegation of administration.
1260.71 Supplements and renewals.
1260.72 Adherence to original budget estimates.
1260.73 Transfers, novations, and change of name agreements.
1260.74 Property use, disposition, and vesting of title.
1260.75 Summary of report requirements.
1260.76 Termination and enforcement.
1260.77 Closeout procedures.
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Appendix to Subpart A to Part 1260--Listing of Exhibits
Subpart B--Uniform Administrative Requirements for Grants and
Cooperative Agreements With Institutions of Higher Education,
Hospitals, and Other Non-Profit Organizations
General
1260.101 Purpose.
1260.102 Definitions.
1260.103 Effect on other issuances.
1260.104 Deviations.
1260.105 Subawards.
Pre-Award Requirements
1260.110 Purpose.
1260.111 Pre-award policies.
1260.112 Forms for applying for Federal assistance.
1260.113 Debarment and suspension.
1260.114 Special award conditions.
1260.115 Metric system of measurement.
1260.116 Resource Conservation and Recovery Act (RCRA).
1260.117 Certifications and representations.
Post-Award Requirements
Financial and Program Management
1260.120 Purpose of financial and program management.
1260.121 Standards for financial management systems.
1260.122 Payment.
1260.123 Cost sharing or matching.
1260.124 Program income.
1260.125 Revision of budget and program plans.
1260.126 Non-Federal audits.
1260.127 Allowable costs.
1260.128 Period of availability of funds.
Property Standards
1260.130 Purpose of property standards.
1260.131 Insurance coverage.
1260.132 Real property.
1260.133 Federally-owned and exempt property.
1260.134 Equipment.
1260.135 Supplies and other expendable property.
1260.136 Intangible property.
1260.137 Property trust relationship.
Procurement Standards
1260.140 Purpose of procurement standards.
1260.141 Recipient responsibilities.
1260.142 Codes of conduct.
1260.143 Competition.
1260.144 Procurement procedures.
1260.145 Cost and price analysis.
1260.146 Procurement records.
1260.147 Contract administration.
1260.148 Contract provisions.
Reports and Records
1260.150 Purpose of reports and records.
1260.151 Monitoring and reporting program performance.
1260.152 Financial reporting.
1260.153 Retention and access requirements for records.
Termination and Enforcement
1260.160 Purpose of termination and enforcement.
1260.161 Termination.
1260.162 Enforcement.
After-the-Award Requirements
1260.170 Purpose.
1260.171 Closeout procedures.
1260.172 Subsequent adjustments and continuing responsibilities.
1260.173 Collections of amounts due.
Appendix A to Subpart B of Part 1260--Contract Provisions
Authority: 42 U.S.C. 2473(c)(1), Pub. L. 97-258, 96 Stat. 1003
(31 U.S.C. 6301 et seq.), and OMB Circular A-110.
Subpart A--General
Sec. 1260.1 Authority.
(a) The National Aeronautics and Space Administration (NASA) awards
grants and cooperative agreements under the authority of 42 U.S.C.
2473(c)(5), the National Aeronautics and Space Act. This part 1260 is
issued under the authority of 42 U.S.C. 2473(c)(1), Pub. L. 97-258, 96
Stat. 1003 (31 U.S.C. 6301 et seq.), and OMB Circular A-110.
(b) The Office of Management and Budget (OMB) approved information
collection under the Paperwork Reduction Act and assigned OMB control
numbers 2700-0047, Property Management and Control; 2700-0048, Patents;
and 2700-0049, Financial Management and Control.
Sec. 1260.2 Purpose.
(a) This subpart A of the NASA Grant and Cooperative Agreement
Handbook (also subpart A of 14 CFR part 1260), provides supplemental
NASA policies that clarify and amplify government-wide regulations for
awarding and administering grants and cooperative agreements with
educational and non-profit organizations. The government-wide
regulations that this subpart supplements are set forth in OMB Circular
A-110 ``Uniform Administrative Requirements for Grants and Agreements
With Institutions of Higher Education, Hospitals, and Other Non-Profit
Organizations.'' (NASA has adopted OMB Circular A-110 as subpart B of
this part 1260.)
(b) As required by the Office of Management and Budget (OMB), NASA
has also adopted the standards set forth in OMB Circular No. A-133,
Audits of States, Local Governments, and Non-Profit Organizations.
Sec. 1260.3 Definitions.
(a) The following definitions are a supplement to the subpart B
definitions set forth at Sec. 1260.102. Additional definitions
applicable to specific categories of grants and cooperative agreements
are set forth at 14 CFR 1273.3 and 14 CFR 1274.102.
(b) Throughout subpart A to this part 1260, the term ``grant''
includes ``cooperative agreement'' unless otherwise indicated.
Administrative grant officer means a Federal employee delegated
responsibility for grant administration; e.g., a NASA grant officer who
has retained grant administration responsibilities, or an Office of
Naval Research (ONR) grant officer delegated grant administration by a
NASA grant officer.
Amendment means any document used to effect modifications to grants
and cooperative agreements. Amendments may be issued unilaterally at
the discretion of the grant officer.
Commercial firm means any corporation, trust or other organization
which is organized primarily for profit.
Effective date means the date work can begin, which could be
earlier or later than the date of signature on a basic award or
modification. Expenditures made prior to award of a grant are incurred
at the recipient's risk.
Expiration date means the date of completion specified in the
grant, after which expenditures may not be charged against the grant
except to satisfy obligations to pay allowable costs committed on or
before that date.
Historically Black Colleges and Universities means institutions
determined by the Secretary of Education to meet the requirements of 34
CFR 608.2 and listed therein.
Minority educational institution means an institution determined by
the Secretary of Education to meet the requirements of 34 CFR 637.4.
Non-profit organization means an organization that qualifies for
the exemption from taxation under section 501 of the Internal Revenue
Code of 1954, as amended, 26 U.S.C. 501.
Progress report means a concise statement of work accomplished
during the report period (see Secs. 1260.22 and 1260.75(b)(3)).
Recipient acquired equipment means equipment purchased or
fabricated with grant funds by a recipient for the performance of work
under its grant.
Small business concern means a concern, including its affiliates,
which is independently owned and operated, not dominant in the field of
operation in which it is bidding, and qualifies as a small business
under the criteria and size standards in 13 CFR part 121.
Small disadvantaged business concern means a small business concern
owned and controlled by individuals
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who are both socially and economically disadvantaged and meets the
criteria set forth at 13 CFR part 24.
Summary of research means a document summarizing the results of the
entire project, which includes bibliographies, abstracts, and lists of
other media in which the research was discussed.
Women-owned small business concern means a small business concern
that is at least 51 percent owned by women who are U.S. citizens and
who also control and operate the business (15 U.S.C. 637(d)).
Sec. 1260.4 Applicability.
(a) Subparts A and B of this part 1260 establish policies and
procedures for grants and cooperative agreements awarded by NASA to
institutions of higher education, hospitals, and other non-profit
organizations.
(b) Subject to the special considerations in this paragraph,
subparts A and B of this part 1260 are also applicable to NASA grants
and cooperative agreements awarded to commercial firms which do not
involve cost sharing. For grants and cooperative agreements with
commercial organizations which involve resource contributions by the
Recipient, see 14 CFR part 1274.
(1) The allowability of costs incurred by commercial firms is
determined in accordance with the provisions of the Federal Acquisition
Regulation (FAR) at 48 CFR part 31.
(2) NASA does not allow for payment of profit or fee to commercial
firms under grant awards.
(3) When applying the policies set forth under Sec. 1260.74, the
grant officer shall vest title to any equipment purchased under the
grant with the Government. The special condition at Sec. 1260.67,
Equipment and Other Property Under Grants With Commercial Firms, shall
be incorporated into all grants with commercial firms in place of the
provision at Sec. 1260.27, Equipment and Other Property.
(4) Due to differing NASA patent policies applicable to large
businesses, special conditions at Sec. 1260.57, New Technology, and
Sec. 1260.58, Designation of New Technology Representative and Patent
Representative, shall be incorporated into all grants with commercial
firms other than those with small businesses, in place of the provision
at Sec. 1260.29, Patent Rights.
(5) Payments under grants with commercial firms will be made based
on incurred costs. NASA Form 272 is not required. Commercial firms will
be required to submit invoices on a no more than quarterly basis. The
special condition at Sec. 1260.68, Invoices and Payments Under Grants
With Commercial Firms, shall be incorporated into all grants with
commercial firms in place of the provision at Sec. 1260.26, Financial
Management.
(6) Payments will be made to commercial firms via electronic funds
transfer. The special condition at Sec. 1260.69, Electronic Funds
Transfer Payment Method, shall be incorporated into all grants with
commercial firms.
(7) Delegation of grant administration functions consistent with
the policies set forth at Sec. 1260.70 (i.e., property administration
and closeout are to be delegated) will be made to the cognizant field
office of the Defense Contract Management Command instead of to the
Office of Naval Research. Delegations will be made using NASA Form
1674, Letter of Delegation, for the Administration of Grants and
Cooperative Agreements (Exhibit F to subpart A of this part 1260,
available at the address given in Exhibit F). Cognizant offices for
performing administration under individual grants are set forth in the
``DoD Directory of Contract Administration Services Components,'' which
is available on the internet at: http://www.dcmc.hq.dla.mil/casbook/
casbook.htm.
Sec. 1260.5 Amendment.
This part 1260 will be amended by publication of changes in the
Federal Register. Changes will be issued as Grant Notices and
incorporated into the official version of the handbook located at the
internet web site.
Sec. 1260.6 Publication.
The official site for accessing the NASA Grant and Cooperative
Agreement Handbook, including current Grant Notices, is on the internet
at: http://ec.msfc.nasa.gov/hq/grcover.htm
Sec. 1260.7 Deviations.
(a) A deviation is required for any of the following:
(1) When a prescribed provision (but not a special condition) set
forth verbatim in this part 1260 is modified or omitted.
(2) When a provision is set forth in this part 1260, but not for
use verbatim, and the Center substitutes a provision which is
inconsistent with the intent, principle, and substance of the
provision.
(3) When a form prescribed by this part 1260 is altered or another
form is used in its place.
(4) When limitations, imposed by this handbook upon the use of a
grant provision, form, procedure, or any other grant action, are
changed.
(5) When a form is created for recipient use that constitutes a
``Collection of Information'' within the meaning of the Paperwork
Reduction Act (44 U.S.C. 35) and its implementation in 5 CFR part 1320.
(b) Requests for authority to deviate from this part 1260 shall be
submitted to the Office of Procurement, NASA Headquarters, Procurement
Operations Division (HS). Requests, signed by the procurement officer,
shall contain:
(1) A full description of the deviation, the circumstances in which
it will be used, and identification of the requirement from which a
deviation is sought;
(2) The rationale for the request, pertinent background
information, and the intended effect of the deviation;
(3) The name of the recipient, identification of the grant
affected, and the dollar value;
(4) A statement as to whether the deviation has been re quested
previously, and, if so, details of that request; and
(5) A copy of legal counsel's concurrence or comments.
(c) Where it is necessary to obtain a deviation on OMB Circular A-
110 (subpart B of this part 1260), Code HS will process all necessary
documents in accordance with 1260.104.
Pre-Award Requirements
Sec. 1260.10 Proposals.
(a) Consistent with 31 U.S.C. 6301(3), NASA's policy is to use
competitive procedures to award grants whenever possible. A grant can
result from:
(1) A proposal submitted in response to a Broad Agency Announcement
(BAA) such as a NASA Research Announcement (NRA) or an Announcement of
Opportunity (AO), a Cooperative Agreement Notice (CAN), an Agencywide
program announcement such as the Graduate Student Research Program, or
other forms of announcements approved by the Associate Administrator
for Procurement (HS). NRA's are described in the NASA FAR Supplement
(NFS) 48 CFR 1835.016. AO's are described in 48 CFR part 1872.
(2) An Unsolicited Proposal for new and innovative ideas. Guidance
on the submission of unsolicited proposals is contained in the Federal
Acquisition Regulation (FAR) 48 CFR subpart 15.6 and (NFS) 48 CFR
subpart 1815.6. The synopsis requirement in FAR part 5, however, does
not apply to the grant process. Contact with NASA technical personnel
prior to proposal submission
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is encouraged to determine if preparation of a proposal is warranted.
These discussions should be limited to understanding NASA research
needs and do not jeopardize the unsolicited status of any subsequently
submitted proposal.
(b) The proposal shall contain a detailed narrative description of
the work to be undertaken, including the objectives of the project and
the applicant's plan for carrying it out.
(1) All proposals shall include budget data as prescribed in the
Budget Summary (Exhibit A to subpart A of this part 1260, available at
the address given in Exhibit A). Narrative detail must support the
proposed budget as required in Exhibit A.
(i) The recipient institution is responsible for ensuring that
costs charged are allowable, allocable, and reasonable under the
applicable cost principles governed by OMB Circular No. A-21 or A-122.
For other details see 1260.127.
(ii) Subject to applicable cost principles, facilities and
administrative cost rates are negotiated between recipients and the
cognizant agencies assigned under OMB Circular No. A-21. NASA is
required to apply the applicable negotiated rate for all grants awarded
to the recipient.
(iii) NASA may accept cost sharing when voluntarily offered. For
further guidance see 1260.123. For grants and cooperative agreements
with commercial organizations that involve costs sharing, see 14 CFR
part 1274. The amount of cost sharing will not be a factor in
determining whether to select a proposal for award. However, recipients
may be requested to secure nonfederal matching funds equal to the
program portion of training and education grants. In accordance with
NASA policy to foster continuity of research, multiple year grant
proposals are encouraged, where appropriate, for a period generally up
to three years. Proposals for multiple year grants shall describe the
entire research project and include a complete budget for year one and
separate estimates for each subsequent year.
(2) A Taxpayer Identification Number (TIN) must be included with
the address listed on the proposal. If an award is made, advance
payments cannot be made without a TIN (31 U.S.C. 7702(c)(1)).
(3) Prior to implementation of the Integrated Financial Management
(IFM) System at each center, all grant and cooperative agreement
recipients are required to register in the Department of Defense (DoD)
Central Contractor Registeration (CCR) database. Registration is
required in order to obtain a Commercial and Government Entity (CAGE)
code, which will be used as a grant and cooperative agreement
identification number for the new system. The grant officer shall
verify that the prospective awardee is registered in the CCR database
using the DUNS number or, if applicable, the DUNS+4 number, via the
Internet at http://ccr.edi.disa.mil/ccr/cgi-bin/status.pl or by calling
toll free: 800-841-4431, commercial: 696-961-5757.
(c)(1) Grant officers are required to ensure that all necessary
certifications, disclosures, and assurances have been obtained prior to
awarding a grant or cooperative agreement.
(2) Each new proposal shall include a certification for debarment
and suspension under the requirements of 14 CFR 1265.510 and 1260.117.
(3) Each new proposal for an award exceeding $100,000 shall include
a certification, and a disclosure form (SF LLL) if required, on
Lobbying under the requirements of 14 CFR 1271.110 and 1260.117.
(4) Unless a copy is on file at the NASA center, recipients must
furnish an assurance on NASA Form (NF) 1206 on compliance with Civil
Rights statutes specified in 14 CFR parts 1250 through 1253.
Sec. 1260.11 Evaluation and selection.
(a) Technical evaluation of proposals will be conducted by the
cognizant NASA technical office and may be based on peer reviews.
(b) Under NRA's, AO's, other BAA's, and CAN's, the selecting
official will furnish documentation requested by the grant officer,
(including a copy of the NRA, selection statement, and peer review
evaluation if requested), to confirm that the award is being made as a
result of a selection under a NRA, AO, other BAA, or CAN. The technical
office will forward to the grant office a completed award package,
including a funded procurement request, technical evaluation of the
proposed budget, and other support documentation, at least 29 days
prior to the requested award date, or before the expiration of the
funded period in the case of the renewal of an existing effort.
(c) If a proposal is not selected, the proposer will be notified by
the selecting official in accordance with the procedures set forth in
the NRA, AO, CAN, or BAA.
(d) Unsolicited proposals will be evaluated in accordance with the
following procedure:
(1) Evaluations of unsolicited proposals to be awarded as grants or
cooperative agreements will be conducted using the same criteria used
for reviewing unsolicited proposals to be awarded as contracts, as set
forth at FAR subpart 15.6 and (NFS) 48 CFR subpart 1815.6. Normally,
unsolicited proposals are accepted to perform discrete projects with
defined anticipated outcomes and completion dates. An unsolicited
proposal that results in a grant or cooperative agreement with no
defined end date, and which requires subsequent submission of follow-on
unsolicited proposals to ensure continuation of the effort, should be
closely reviewed to ensure that it meets the FAR definition for a valid
unsolicited proposal.
(2) An unsolicited proposal recommended for acceptance shall be
supported by a Justification for Acceptance of an Unsolicited Proposal
(JAUP) prepared by the cognizant technical office. The JAUP shall be
submitted for the approval of the grant officer after review and
concurrence at a level above the technical officer. However, this
review and concurrence is not required for technical officers at a
division chief or higher level. The grant officer's signature on the
award document will indicate approval of the JAUP.
(3) NASA will notify in writing organizations that submit
unsolicited proposals that will not be funded. Method of notification
is at the discretion of the grant officer. Proposals will be returned
only when requested. Agency procedures for handling unsolicited
proposals are specified at (NFS) 48 CFR 1815.606.
(e) For awards made non-competitively, written justifications for
equipment or travel will be submitted by the technical office for grant
officer approval when more than half of the proposed budget is for
equipment or travel and associated indirect cost. The justification
shall describe the extent to which the equipment or travel is
necessary. The grant officer's signature on the award will indicate
approval of the justification.
(f) The evaluation of the proposal budget will conform to the
following procedure:
(1) The technical officer will review the proposer's estimated cost
for conformance to program requirements and fund availability. The
results of this review shall be recorded in Column B of the proposed
Budget Summary Form (Exhibit A to subpart A of this part 1260,
available at the address given in Exhibit A). New budgets are not
required when the program office recommended funding is within twenty
percent (20 percent) of the proposed amount, provided specific proposed
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objectives have not been added or deleted. However, when funding
decreases in equipment and/or subcontracts are involved, the cognizant
program office is required to identify the cost element(s) affected by
the change in funding level.
(2) The grant officer will review the budget, and any changes made
by the technical officer, to identify any item which may be unallowable
under the cost principles, or which appears unreasonable or
unnecessary. The grant officer will complete Column C of the Budget
Summary after discussing significant changes with the recipient and/or
technical office. Requests for details from the recipient should be
limited.
(3) The grant officer will address requests for direct charge of
equipment in the negotiation summary, and state whether the purchase is
approved as a direct cost.
(g) 42 U.S.C. 2459d prohibits NASA from funding any grant for
longer than one year if the effect is to provide a guaranteed customer
base for new commercial space hardware or services. The only exception
would be if an Appropriations Act specifies the new commercial space
hardware or services to be used.
(h) NASA reserves the right to either fully fund or incrementally
fund grants based on fiscal law and program considerations. Grants with
anticipated annual funding exceeding $50,000 may be funded for less
than the amount stated in the proposal.
(1) The grant officer will determine the number of incremental
funding actions that will be allowed.
(2) The special condition at Sec. 1260.53, Incremental Funding,
will be included in the grant.
(i) Proposals for efforts that involve printing, binding, and
duplicating in excess of 25,000 pages are subject to the Government
Printing and Binding Regulations, No. 26, February 1990, S. Pub. 101-9,
U.S. Government Printing Office, Washington, DC 20402, published by the
Congressional Joint Committee on Printing. The technical office will
refer such proposals to the Installation Central Printing Management
Officer (ICPMO). The grant officer will be advised in writing of the
results of the ICPMO review.
(j) The provision at Sec. 1260.30, Rights in Data, is adequate only
for grants for basic or applied research where the principal purpose
(or only expected NASA involvement) is the publication or dissemination
of the results, such as in journals or NASA publications (see
Sec. 1260.22). Rights in data for other types of grants and cooperative
agreements should be developed with Center Patent Counsel on a case-by-
case basis.
(k) By acceptance of a grant (containing the provision at
Sec. 1260.34) the recipient agrees that it is in compliance with the
Clean Air and Federal Water Pollution Control Acts. The Administrator
may approve exemptions from this prohibition under certain
circumstances under Executive Order 11738. Requests for exemptions or
renewals thereof shall be made to the Office of Procurement, NASA
Headquarters, Program Operations Division (Code HS), Washington, DC
20546.
(l) Requests for acquisition of property may be made by a recipient
either as part of the original budget proposal or subsequent to award.
Comprehensive guidance on evaluating requests for acquisition of
property, vesting of title, and administration issues, is set forth at
Sec. 1260.74.
Sec. 1260.12 Choice of award instrument.
(a) This section and Sec. 1260.111 provide guidance on the
appropriate choice of award instruments consistent with 31 U.S.C. 6301
to 6308. Throughout Sec. 1260.12, the term ``grant'' does not include
``cooperative agreements.''
(b)(1) A procurement contract is a mutually binding legal
relationship obligating the seller to furnish supplies or services
(including construction), and the buyer pays for them.
(2) The principal purpose of a procurement contract is to acquire,
for NASA's direct use or benefit, a well-defined, specific effort
clearly required for the accomplishment of a scheduled NASA mission or
project.
(3) If it is determined that a procurement contract is the
appropriate type of funding instrument to meet NASA's purposes, the
procurement shall be conducted under the FAR and the NFS (48 CFR
chapter 18).
(4) If an action is to be awarded for a dollar amount below the
simplified acquisition threshold, the action may be completed by a
contracting officer as a purchase order. The purchase order must be
properly modified to include necessary language pertaining to data
rights, key personnel requirements, and any other necessary
requirements as determined by the contracting officer.
(c) A grant shall be used as the legal instrument to reflect a
relationship between NASA and a recipient whenever the principal
purpose is the transfer of anything of value to the recipient to
accomplish a public purpose of support or stimulation authorized by
Federal statute. Grants are distinguished from cooperative agreements
in that substantial involvement is not expected between NASA and the
recipient when carrying out the activity. Grants are distinguished from
contracts in that grants provide financial assistance to the recipient
to conduct a fairly autonomous program; contracts entail acquisition.
Various types of NASA grants contain different provisions and
conditions as described in Secs. 1260.20 and 1260.50. The major types
of grants and cooperative agreements are defined as follows. Grants and
cooperative agreements to carry out other authorized purposes should be
used to the extent appropriate, and must be in compliance with OMB
Circular A-110.
(1) Research grant. A research grant shall be used to accomplish a
NASA objective through stimulating or supporting the acquisition of
knowledge or understanding of the subject or phenomena under study, or
attempting to determine and exploit the potential of scientific
discoveries or improvements in technology, materials, processes,
methods, devices, or techniques and advance the state of the art. The
recipient will bear prime responsibility for the conduct of research,
and exercises judgment and original thought toward attaining the
scientific goals within broad parameters of the research areas proposed
and the resources provided;
(2) Education grant. An education grant is an agreement that
provides funds to an educational institution or other nonprofit
organizations within one or more of the following areas:
(i) Capturing student interest and/or improving student performance
in science, mathematics, technology, or related fields;
(ii) Enhancing the skill, knowledge, or ability of teachers or
faculty members in science, mathematics, or technology;
(iii) Supporting national educational reform movements;
(iv) Conducting pilot programs or research to increase
participation and/or to enhance performance in science, mathematics, or
technology education at all levels; and
(v) Developing instructional materials (e.g., teacher guides,
printed publications, computer software, and videotapes) or networked
information services for education;
(3) Training grant. A training grant is an agreement that provides
funds primarily for scholarships, fellowships, or stipends to students,
teachers, and/or faculty.
(i) NASA training grants are awarded to colleges, universities, or
other non-profit organizations; not to individual students, teachers,
or faculty members.
[[Page 50339]]
It is the responsibility of the institution receiving the grant to
approve the faculty, teachers, and/or students who will participate in
the specific program, in cooperation with NASA. If a student, teacher,
or faculty member ceases to participate in the program for any reason,
the institution, with prior NASA approval, may appoint another student,
teacher, or faculty member to complete the remaining portion of the
grant period. Replacement students, teachers, and/or faculty electing
to apply for the following program year are not automatically entitled
to an award and are subject to the evaluation/selection procedures
administered to new applicants. Any participant receiving support under
a NASA training grant may not concurrently hold another Federal
fellowship or traineeship.
(ii) No applicant shall be denied consideration or appointment on
the grounds of race, creed, color, national origin, age, sex, or
disability.
(iii) Students and faculty receiving direct support under a NASA
training grant must be U.S. citizens, except for those supported by the
NASA Earth System Science Fellowship Program, the Graduate Student
Fellowship in Global Change Research Program, and the GLOBE Program.
(iv) Duration of the award is program specific. Refer to program
policies and procedures for details. Renewal is contingent upon a
successful performance evaluation as prescribed by the program,
concurrence by the NASA technical officer, and the availability of
funds.
(v) No substantial involvement is expected between NASA and the
recipient. A student or faculty member receiving support under a NASA
training grant does not incur any formal obligation to the Government.
(vi) The use of training grant funds to acquire equipment, or to
acquire or construct facilities will not be permitted. Government
furnished equipment will not be provided.
(vii) An Administrative Report must be submitted under the
guidelines described by the specific program policies and procedures.
(4) Facilities grant. A facilities grant is used to provide for the
acquisition, construction, use, maintenance, and disposition of
facilities. Facilities, as used in this section, means property used
for production, maintenance, research, development, or testing. Prior
approval by the Associate Administrator of Procurement is required
before proceeding with a facilities grant. To obtain prior approval, a
package will be forwarded to the Director, Program Operations Division
(HS), during the planning phase of the grant, that includes pertinent
background information, details on Congressional Authorization, dollar
value, and name of the recipient. Other information, such as a copy of
the proposed facility grant award document, is not required. It is
unlikely an award will be approved unless specifically authorized by
Congress. A review by legal counsel to assure legal sufficiency is also
required.
(d) Cooperative agreement. A cooperative agreement shall be used as
the legal instrument reflecting a relationship between NASA and a
recipient whenever the principal purpose is the transfer of anything of
value to the recipient to accomplish a public purpose of support or
stimulation authorized by Federal statute, and substantial involvement
is anticipated between NASA and the recipient during performance of the
contemplated activity (31 U.S.C. 6305). Characteristics inherent in a
cooperative agreement include those that apply to a grant, plus the
following:
(1) Substantial NASA involvement in and contribution to the
technical aspects of the effort are necessary for its accomplishment.
This could involve an active NASA role in collaborative relations,
access to a NASA site or equipment, or sharing NASA facilities and
personnel. For example, a university investigator could work for a
substantial amount of time at a NASA Center, a NASA investigator could
work at a university, or when the collaboration is such that a jointly
authored report or education curriculum product is appropriate;
(2) The project, conducted as proposed, would not be possible
without extensive NASA-recipient technical collaboration;
(3) The nature of the collaboration shall be clearly defined and
specified in the special condition at Sec. 1260.51.
(e)(1) Grants and cooperative agreements with foreign
organizations. Grants and cooperative agreements with foreign
organizations provide for research to be performed in whole, or in
part, by a foreign organization, with funding being provided by NASA to
the foreign organization as reimbursement for the work performed.
(2) It is NASA policy that, in general, research with foreign
organizations will not be conducted through grants or cooperative
agreements, but instead will be accomplished on a no-exchange-of-funds
basis. In these cases, NASA enters into agreements undertaking projects
of international scientific collaboration. In rare instances, NASA may
enter into an international agreement under which funds will be
transferred to a foreign recipient.
(3) Grants and cooperative agreements to foreign organization are
made on an exceptional basis only. Awards require the prior approval of
the Headquarters Office of External Relations (Code I) and the
Headquarters Office of the General Counsel (Code G). Requests to award
foreign grants or cooperative agreements are to be coordinated through
the Office of Procurement, Program Operations Division (Code HS).
Requests for approval shall contain:
(i) The identity of the foreign entity, the country or countries
involved, and the purpose of the grant or cooperative agreement.
(ii) The Space Act Agreement(s) or underlying international
agreement involved, if any.
(iii) A description of the effort to be undertaken by the entity
described in paragraph (e)(3)(i) of this section, including their
dollar value.
(iv) The reason why the grant or cooperative agreement requires a
placement with a foreign organization.
(v) The reason why the work can not be accomplished on a no
exchange of funds basis.
(4) Grants and cooperative agreements to foreign organizations
require a review by the Office of General Counsel.
(5) The requirements of this section do not apply to the purchase
of supplies or services (excluding research) from non-U.S. sources by
U.S. grant or cooperative agreement recipients, when necessary to
support research efforts.
(f)(1) The decision whether to use a contract, grant or cooperative
agreement as an award instrument must be based on the principal purpose
of the relationship. When NASA, within its authority, enters into a
transaction where the principal purpose is to accomplish a public
purpose of support or stimulation authorized by Federal statute, a
grant or a cooperative agreement is the appropriate instrument.
Conversely, if the principal purpose of a transaction is to accomplish
a NASA requirement, i.e., to produce something for NASA's own use, a
procurement contract is the appropriate instrument. Two essential
questions must be asked to ensure that a grant or cooperative agreement
is the appropriate instrument. The first question is: Will NASA be
directly harmed in furthering a specific NASA mission requirement if
the effort is not accomplished? The answer to this question must be
``no.'' The second question is: Is the work being performed by the
recipient primarily for its own purposes, which NASA is merely
supporting with financial or other
[[Page 50340]]
assistance? The answer to this question must be ``yes.'' If these
criteria are met, then the effort is not a NASA requirement, and can
then be considered as to whether it supports or stimulates a public
purpose.
(2) In applying the principal purpose test, it must be determined
whether the Government is the direct beneficiary or user of the
activity. If NASA provides the specifications for the project; or is
having the project completed based on its own identified needs; or will
directly use the report or result of the project for a scheduled NASA
mission, then, in most cases, the principal purpose is to acquire
property or services for the direct benefit or use of NASA, and thus, a
contractual relationship exists. However, there may be cases where NASA
expects to derive some incidental use or benefit from funded
activities. In fact, any extramural expenditure that furthers the
Agency's goals or mission can be said to be of benefit or use to the
Government. But not every expenditure produces for the Government a
benefit or use that is direct; i.e., immediate, uninterrupted, or
specific. Where an expenditure will produce a benefit or use that is
only indirect in nature, a grant or cooperative agreement may be used.
(3) The status of the entity involved is not a primary factor in
determining the appropriate award instrument. For example, an entity
that operates on a non-profit basis may receive funding through a
contract, and is not limited to receiving grants or cooperative
agreements. Similarly, a profit-making firm may receive funding through
grants, cooperative agreements, or contracts.
(4) NASA offices may be mandated through their missions to support
specific scientific, educational, or training programs. The office may
be accountable to NASA management, the Administration, or Congress for
oversight and proper implementation of the program, may require direct
oversight, may be directly accountable for the results of the program
and that the work be successfully completed. Whenever the office
requesting the grant or cooperative agreement would be directly harmed
in performing its mission if an award was not made, a grant or
cooperative agreement is not appropriate. Specific examples of
situations requiring special scrutiny include--
(i) Education grants that for the administration of a program for
which the education office is directly responsible;
(ii) Research or education grants to establish and support
university laboratories on a non-competitive basis, with the resulting
work of direct benefit to NASA; or
(iii) Training grants that hire university students, on a non-
competitive basis, to perform work at a NASA Center in direct support
of NASA personnel, and perform work which is required in support of a
NASA mission.
(5) A grant may be used to provide funding to an association to
hold a conference (among its members and NASA officials) where the
benefits flow primarily to the association and its members, not to
NASA. The principal purpose will be to advance research or other
purposes of the association. Thus, NASA may not direct an association
in arranging the conference or in providing other services for NASA's
benefit. The conference should be run by the association, not by NASA.
Conferences sponsored or initiated by NASA primarily to meet a specific
NASA need or obtain information for the direct benefit of NASA must be
supported by means of a contract.
Sec. 1260.13 Award procedures.
(a) Award instruments are classified as follows:
(1) Annual grants are grants awarded for a short term (e.g., on an
annual basis).
(2) Multiple year grants support research projects that may span
several years.
NASA policy is to make maximum use of multiple year grants. A
Multiple Year Grant is generally selected for a period of three years
in keeping with NASA's policy calling for research to be peer reviewed
at least every three years. Grants with periods of performance in
excess of three years may be appropriate when the NASA technical office
determines at the inception of the grant that a period of performance
in excess of three years is necessary to complete a discrete research
effort.
(i) If the decision to provide multiple year funding to a research
proposal is made, the special condition at Sec. 1260.52, Multiple Year
Grant or Cooperative Agreement, will be included in the award.
(ii) Periods approved under the Multiple Year Grant or Cooperative
Agreement special condition at Sec. 1260.52, and funded at the levels
specified in the special condition, are not considered to be new
awards. Therefore, new proposals, new proposal-related certifications
(such as Disclosure of Lobbying Activities, and Debarment and
Suspension), new technical evaluations, and new budget proposals are
not required, as long as this information for the multiple year period
was reviewed and approved as part of the original proposal.
(iii) If NASA program constraints or developments within the
research project dictate a reduction in the funding level specified
under a Multiple Year Grant period, research may continue at the
reduced level under the terms of the provisions; however, the recipient
may rebudget under the grant provisions to keep the project within the
funding actually provided.
(3) An augmentation to a grant may be issued as a supplement at any
time when work is introduced which is outside the scope of the approved
proposal or when there is a need for substantial unanticipated funding.
Augmentations require the submission of revised budget proposals and
technical evaluations covering the additional work. Since augmentations
will be performed within the existing period of performance,
certifications will not normally be required.
(4) A grant extension may be placed to extend the grant beyond the
expiration date, in accordance with the provision at Sec. 1260.23,
Extensions, if additional time beyond the established period of
performance is required to assure adequate completion of the original
scope of work within the available funding.
(5) Grant renewals provide for continuation of research beyond the
original scope, period of performance and funding levels; therefore,
new proposals, certifications and technical evaluations are required
prior to the execution of a grant renewal. Grant renewals will be
awarded as new grants. Continued performance within a period specified
under the Multiple Year Grant provision does not constitute a renewal.
For research originally awarded through a competitive NRA, CAN, or
other competitive announcement that has completed its period of
performance, peer review of a proposal to continue the research should
be accomplished prior to selecting the research grant for renewal. If
the effort was originally awarded through an unsolicited proposal, a
new justification to accept the unsolicited proposal would be required
(however, also see Sec. 1260.12(g)(5)). Multiple year grant special
conditions may be incorporated into renewals.
(b) While NASA normally provides full funding support for research
grants, alternate methods of grant funding are as follows:
(1) Since NASA grant recipients usually gain no measurable
commercial or economic benefit from grants, other than conducting
research, cost sharing for research grants is not generally
[[Page 50341]]
required. NASA may, however, accept cost sharing when voluntarily
offered. Additionally, in instances when the grant officer determines
that the recipient will benefit from the research results through sales
to non-Federal entities, cost sharing based upon this mutuality of
interest will apply. See Sec. 1260.123. When cost sharing is used, the
grant officer shall insert a Special Condition substantially as shown
in Sec. 1260.54, Cost Sharing. (See 14 CFR part 1274 for grants and
cooperative agreements with commercial organizations involving cost
sharing.)
(2) NASA may provide partial support for a research project or
conference where additional funding is being provided by other Federal
agencies. If the grant also involves cost sharing by the recipient, the
grant officer will ensure that the recipient's share does not include
any Federal funds.
Sec. 1260.14 Limitations.
(a) NASA does not award grants merely to provide donative
assistance no matter how worthy the purpose, but to the extent that
appropriations are available to carry out authorized Agency programs.
Research in any academic discipline related to NASA interests normally
will qualify. However, advice of legal counsel should be sought in
unusual situations, or when unusual project activities or
organizational attributes are evident.
(b) It is NASA's policy that non-monetary (zero dollar) grants or
cooperative agreements shall not be used, except for no-cost
extensions.
(c) Loans of Government personal property not associated with a
contract, grant, or cooperative agreement under 31 U.S.C. 6301 to 6308,
and made under the Space Act of 1958, should be consummated as loan
agreements. Also, excess Government research property may be donated to
educational institutions and nonprofit organizations pursuant to 15
U.S.C. 3710(I). See Sec. 51260.133(a)(2).
(d) Neither grants nor cooperative agreements shall be used as
legal instruments for consulting service arrangements.
Sec. 1260.15 Format and numbering.
(a) A grant shall be brief, containing only those provisions and
special conditions necessary to protect the interests of the
Government.
(b) Cover page formats shown in Exhibit B to subpart A of part 1260
shall be used for all NASA grant and cooperative agreement award
documents. Provisions for grants with U.S. organizations shall be
incorporated by reference, and preprinted checklists may be used
(Exhibit C to subpart A of this part 1260). Both special conditions and
provisions for grants with foreign organizations will be printed in
full text. An acceptance block may be added when the grant officer
finds it necessary to require bilateral execution of the grant. Program
budgets are not generally attached to the award document. When it is
necessary to attach the budget due to revisions to the original
proposed budget or other reasons, this information should be suitably
marked as confidential, and is not be disclosed outside of the
Government without the consent of the grantee.
(c) The Identification Numbering System to be used prior to
Integrated Financial Management Project (IFMP) implementation will be
applied as follows:
(1) For research, education, and facilities grants, numbering shall
conform to (NFS) 48 CFR 1804.7102(a) by including the Center
Identification Number, except that a NAG prefix will be used in lieu of
the NAS prefix (e.g., NAG5 would be the Goddard prefix designation).
They will be sequentially numbered.
(2) Cooperative agreements will use the prefix NCC plus the Center
Identification Number. They will be sequentially numbered.
(3) Training grants will use the prefix NGT plus the Center
Identification Number. They will be sequentially numbered.
(4) The Catalog of Federal Domestic Assistance (CFDA) Numbers does
not apply to NASA grants.
(d) The Identification Numbering System will be revised after IFMP
implementation. There will be a phase-in term for Center implementation
of the IFMP. For centers using IFMP Performance Purchasing; the
following numbering system shall be used:
(1) Document Type for grants. For research, education, facilities,
and training grants, the document type prefix GR shall be used.
(2) Document Type for cooperative agreements. Cooperative
agreements will use the prefix CO.
(3) Agency Identifier. The Agency identifier NAS shall follow the
document number.
(4) Center Smart Codes. The Center identifier shall follow the
document type:
------------------------------------------------------------------------
Installation Smart code
------------------------------------------------------------------------
Ames Research Center......................... A
Dryden Flight Research Center................ D
Glenn Research Center........................ C
Goddard Space Flight Center.................. G
Headquarters................................. H
Johnson Space Center......................... J
Kennedy Space Center......................... K
Langley Research Center...................... L
Marshall Space Flight Center................. M
NASA Management Office-JPL................... P
Stennis Space Center......................... S
------------------------------------------------------------------------
(5) Fiscal Year. The fiscal year shall be represented as two
digits.
(6) Procurement Code. ``G'' will be used as the procurement code to
identify grants. Cooperative Agreements will be identified using ``A''
as the procurement code.
(7) Serial Numbers. Installations shall number grants and
cooperative agreements serially by fiscal year. The serial number shall
be six digits commencing with ``000001'' and continuing in succession.
(8) As an example of the above set forth methodology, the first two
grants awarded by Marshall Space Flight Center in fiscal year 1999
would be GRNASM99G000001 and GRNASM99G000002.
(9) The Catalog of Federal Domestic Assistance (CFDA) Numbers does
not apply to NASA grants.
Sec. 1260.16 Distribution.
(a) Copies of grants and supplements will be provided to--
(1) Payment offices (original copy);
(2) Technical officers;
(3) Administrative grant officers when delegated;
(4) The NASA Center for AeroSpace Information (CASI), Attn:
Document Processing Section, 7121 Standard Drive, Hanover, MD 21076;
and
(5) Other appropriate offices as determined by the grant officer.
(b) In addition to receipt of grants and supplements, the
administrative grant officer will receive a copy of the approved
budget.
(c) The file will record the addresses for distribution.
Provisions
Sec. 1260.20 Provisions.
(a) Research grants, education grants, and cooperative agreements
with U.S. educational institutions and nonprofit organizations shall
incorporate by reference the provisions set forth in Secs. 1260.21
through 1260.38. Training grants shall incorporate by reference the
provisions set forth in Secs. 1260.21 through 1260.38, except that the
grant officer will substitute Sec. 1260.22, Technical Publications and
Reports, with reporting requirements as specified by the program
office.
[[Page 50342]]
(b) Facilities grants provisions will be selected on a case-by-case
basis (please refer to Sec. 1260.50).
(c) Research grants awarded to foreign organizations, when approved
by Headquarters, will include the following provisions at a minimum:
Secs. 1260.21, 1260.22, 1260.23, 1260.24, 1260.25, 1260.26, 1260.27,
1260.29, 1260.33, 1260.35, 1260.36 and 1260.37. Additional special
conditions will be selected on a case by case basis (please refer to
1260.50). All provisions will be provided in full text. Referenced
handbooks, statutes, or other regulations, which the recipient may not
have access to, must be made available when requested by the foreign
organization.
(d) The provisions set forth at Sec. 1260.21 through 1260.38 do not
apply to awards made under the Federal Demonstration Partnership (FDP).
FDP awards are subject to the FDP Phase III General Terms and
Conditions and the NASA Agency Specific Requirements Modifications to
the General Terms and Conditions (Exhibit D to subpart A of this part
1260). Since these documents are provided directly to the FDP
institutions, they are not to be attached to FDP grants. However, the
grant officer will include a statement similar to the following on FDP
grants: ``The Federal Demonstration Partnership General Terms and
Conditions and NASA Agency-specific Requirements apply to this award.''
(e) Grants or cooperative agreements awarded by NASA to the
Commercial Space Centers under the Space Development and Commercial
Research (SDCR) Program require special conditions in addition to those
set forth at Secs. 1260.21 through 1260.38. SDCR Special Conditions are
required to be included in full text for all SDCR Grants and
Cooperative Agreements (Exhibit E to subpart A of this part 1260).
Changes or additions to these Special Conditions must be approved by
the Office of Space Utilization and Product Development (Code UM) prior
to the award of the grant. Requests for changes or additions are to be
coordinated through the Office of Procurement, Program Operations
Division (Code HS).
(f) Grants and cooperative agreements awarded by NASA to commercial
organizations where cost sharing is not required shall incorporate the
provisions set forth at Secs. 1260.21 through 1260.38, modified as set
forth under Sec. 1260.4(b).
(g) Grants and cooperative agreements not specifically classified
elsewhere in this section, but that are awarded for other authorized
purposes, shall include provisions selected on a case-by-case basis.
(h) Whenever the word ``grant'' appears in Secs. 1260.21 through
1260.38, it shall be deemed to include, as appropriate, the term
``cooperative agreement.''
Sec. 1260.21 Compliance with OMB Circular A-110.
Compliance With OMB Circular A-110 (Date)
This grant or cooperative agreement is subject to the
requirements set forth in OMB Circular A-110, Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations. Recipients
are required to comply with the requirements of A-110, as adopted by
NASA as subpart B of part 1260 of title 14 of the Code of Federal
Regulations. Specific provisions set forth in this award document
are provided to supplement and clarify, not replace, the Circular,
except in circumstances where a waiver from Circular requirements
has been obtained by NASA.
[End of provision]
Sec. 1260.22 Technical publications and reports.
(This provision describes standard reporting requirements that
should be applied in most circumstances. The requirements set forth
under this provision may be modified by the grant officer based on
specific report needs for the grant or cooperative agreement, provided
that reporting requirements do not conflict with Sec. 1260.151. Any
special reporting requirements will be set forth as a special condition
in the award document.)
Technical Publications and Reports (Date)
(a) NASA encourages the widest practicable dissemination of
research results at any time during the course of the investigation.
All information disseminated as a result of the grant shall contain
a statement which acknowledges NASA's support and identifies the
grant by number (e.g., ``The material is based upon work supported
by NASA under award No(s) GRNASM99G000001, etc.'').
(b) Reports shall be in the English language, informal in
nature, and ordinarily not exceed three pages (not counting
bibliographies, abstracts, and lists of other media). The recipient
shall submit the following reports:
(1) A Progress Report for all but the final year of the grant.
Each report is due 60 days before the anniversary date of the grant
and shall briefly describe what was accomplished during the
reporting period as outlined in Sec. 1260.151(d). A special
condition specifying more frequent reporting may be required.
(2) A Summary of Research (or Educational Activity Report in the
case of Education Grants) is due within 90 days after the expiration
date of the grant, regardless of whether or not support is continued
under another grant. This report shall be a comprehensive summary of
significant accomplishments during the duration of the grant.
(c) Progress Reports, Summaries of Research, and Educational
Activity Reports shall include the following on the first page:
(1) Title of the grant.
(2) Type of report.
(3) Name of the principal investigator.
(4) Period covered by the report.
(5) Name and address of the recipient's institution.
(6) Grant number.
(d) Progress Reports, Summaries of Research, and Educational
Activity Reports shall be distributed as follows:
(1) The original report, in both hard copy and electronic
format, to the Technical Officer.
(2) One copy to the NASA Grant Officer, with a notice to the
Administrative Grant Officer, (when administration of the grant has
been delegated to ONR), that a report was sent.
(e) For Summaries of Research and published reports, one
microreproducible copy shall also be sent to the NASA Center for
AeroSpace Information (CASI), Attn: Document Processing Section, 7121
Standard Drive, Hanover, MD 21076.
[End of provision]
Sec. 1260.23 Extensions.
Extensions (Date)
(a) It is NASA policy to provide maximum possible continuity in
funding grant-supported research and educational activities,
therefore, grants may be extended for additional periods of time
when necessary to complete work that was part of the original award.
NASA generally only approves such extensions within funds already
made available. Any extension that would require additional funding
must be supported by a proposal submitted at least three months in
advance of the expiration date of the grant.
(b) In accordance with Sec. 1260.125(e)(2), Recipients may
extend the expiration date of a grant if additional time beyond the
established expiration date is required to assure adequate
completion of the original scope of work within the funds already
made available. For this purpose, the recipient may make a one-time
no-cost extension, not to exceed 12 months, prior to the established
expiration date. Written notification of such an extension request,
with the supporting reasons, must be received by the NASA Grant
Officer at least ten days prior to the expiration of the award. A
copy of the extension request must also be forwarded to cognizant
Office of Naval Research office. NASA reserves the right to
disapprove the extension if the requirements set forth at
Sec. 1260.125(e)(2) are not met.
(c) Requests for approval for all other no-cost extensions must
be submitted in writing to the NASA Grant Officer. Copies are to be
forwarded to the cognizant Office of Naval Research office.
[End of provision]
[[Page 50343]]
Sec. 1260.24 Termination and enforcement.
Termination and Enforcement (Date)
As a clarification to the termination and enforcement conditions
of this award specified in Secs. 1260.160 through 1260.162, although
NASA's policy is to consult with the recipient, NASA reserves the
right to suspend or terminate the award without prior notice when it
believes such action is necessary to protect the interest of the
Government.
[End of provision]
Sec. 1260.25 Change in principal investigator or scope.
Change in Principal Investigator or Scope (Date)
The following guidance is provided as an amplification to prior
approval requirements set forth at Sec. 1260.125(c):
(a) The Recipient shall obtain the approval of the NASA Grant
Officer for a change of the principal investigator, or for a
significant absence of the Principal Investigator from the project,
defined as a three month absence from the program or a 25 percent
reduction in time devoted to the project. Significantly reduced
availability of the services of the principal investigator(s) named
in the grant instrument could be grounds for termination, unless
alternative arrangements are made and approved in writing by the
Grant Officer.
(b) Prior written approval is required from NASA if there is to
be a significant change in the objective or scope.
[End of provision]
Sec. 1260.26 Financial management.
Financial Management (Date)
(a) Advance payments by electronic funds transfer will be made
by the Financial Management Office of the NASA Center which issued
the grant in accordance with procedures provided to the recipient.
The recipient shall submit Federal Cash Transaction Reports (SF 272)
to the aforementioned office and to the Administrative Grant Officer
(if NASA has delegated administration) within 15 working days
following the end of each Federal fiscal quarter, containing current
estimates of the cash requirements for each of the four months
following the quarter being reported. The final SF 272 is due within
90 days after the expiration date of the grant. The final SF 272
shall be submitted to the Financial Management Office, with copies
sent to the NASA Grant Officer, and to the Administrative Grant
Officer when the Office of Naval Research (ONR) has been delegated
grant closeout responsibilities.
(b) Unless otherwise directed by the Grant Officer, any
unexpended balance of funds which remains at the end of any funding
period, except the final funding period of the grant, shall be
carried over to the next funding period, and may be used to defray
costs of any funding period of the grant. This includes allowing the
carry over of funds to the second and subsequent years of a multiple
year grant. This provision also applies to subcontractors performing
substantive work under the grant. For grant renewals, the estimated
amount of unexpended funds shall be identified in the grant budget
section of the recipient's renewal proposal. NASA reserves the right
to remove unexpended balances from grants when insufficient efforts
have been made by the grantee to liquidate funding balances in a
timely fashion.
[End of provision]
Sec. 1260.27 Equipment and other property.
Equipment and Other Property (Date)
(a) On an exceptional basis, NASA permits acquisition of special
purpose and general purpose equipment specifically required for use
exclusively for research activities.
(1) Acquisition of special purpose or general purpose equipment
costing in excess of $5,000 (unless a lower threshold has been
established by the recipient) and not included in the approved
proposal budget, requires the prior approval of the NASA Grant
Officer. Requests to the NASA Grant Officer for the acquisition of
equipment shall be supported by written documentation setting forth
the description, purpose, and acquisition value of the equipment,
and including a written certification that the equipment will be
used exclusively for research, activities. (A change in the model
number of a prior approved piece of equipment does not require re-
submission for that item.)
(2) NASA may elect to take title to items of special purpose or
general purpose equipment after it is no longer necessary for
performance of the grant. The recipient will be advised of the
Government's intention to take title in writing if the item is
approved for recipient purchase. Generally, the notification is made
through inclusion of the special condition at 1260.66, Listing of
Reportable Equipment and Other Property. If the Government does not
exercise its right to take title to property acquired by the
recipient with grant funds at the time the acquisition is approved,
the property will be considered exempt according to 1260.133(b).
When property is classified as exempt, the recipient shall hold
title without further obligation to the Federal Government,
including reporting of the equipment.
(3) Special purpose or general purpose equipment acquired by the
recipient with grant funds, valued under $5,000 (unless a lower
threshold is established by the recipient) are classified as
``supplies,'' do not require the prior approval of the NASA Grant
Officer, shall vest in the recipient, and will be considered
``exempt'' in accordance with 1260.133(b).
(4) Grant funds may be expended for the acquisition of land or
interests therein or for the acquisition and construction of
facilities only under a facilities grant, as defined in 1260.12(g).
(b) The recipient shall submit an annual Inventory Report, to be
received no later than October 31 of each year, which lists all
reportable (non-exempt equipment and/or Federally owned property) in
its custody as of September 30. Negative responses for annual
Inventory Reports (when there is no reportable equipment) are not
required. A Final Inventory Report of Federally Owned Property,
including equipment where title was taken by the Government, will be
submitted by the recipient no later than 60 days after the
expiration date of the grant. Negative responses for Final Inventory
Reports are required.
(1) All reports will include the information listed in paragraph
(f)(1) of 1260.134, Equipment. No specific report form or format is
required, provided that all necessary information set forth at
1260.134(f)(1) is provided.
(2) The original of each report shall be submitted to the Center
Deputy Chief Financial Officer, Finance (DCFO(F)). Copies shall be
furnished to the Center Industrial Property Officer and to ONR.
[End of provision]
Sec. 1260.28 Patent rights.
Patent Rights (Date)
As stated at 1260.136, this award is subject to the provisions
of 37 CFR 401.3(a) which requires use of the standard clause set out
at 37 CFR 401.14 ``Patent Rights (Small Business Firms and Nonprofit
Organizations)'' and the following:
(a) Where the term ``contract'' or ``contractor'' is used in the
``Patent Rights'' clause, the term shall be replaced by the term
``grant'' or ``recipient,'' respectively.
(b) In each instance where the term ``Federal Agency,''
``agency,'' or ``funding Federal agency'' is used in the ``Patent
Rights'' clause, the term shall be replaced by the term ``NASA.''
(c) The NASA regulation applicable to paragraph (e) of the
``Patent Rights'' clause is at 37 CFR part 404, Licensing of
Government-owned Inventions.
(d) The following item is added to the end of paragraph (f) of
the ``Patent Rights'' clause: ``(5) The recipient shall include a
list of any Subject Inventions required to be disclosed during the
preceding year in the performance report, technical report, or
renewal proposal. A complete list (or a negative statement) for the
entire award period shall be included in the summary of research.''
(e) The term ``subcontract'' in paragraph (g) of the ``Patent
Rights'' clause shall include purchase orders.
(f) The NASA implementing regulation for paragraph (g)(2) of the
``Patent Rights'' clause is at 48 CFR 1827.304-4(a)(i)(B).
(g) The following requirement constitutes paragraph (l) of the
``Patent Rights'' clause:
``(l) Communications. A copy of all submissions or requests
required by this clause, plus a copy of any reports, manuscripts,
publications or similar material bearing on patent matters, shall be
sent to the Center Patent Counsel and the NASA Grant Officer in
addition to any other submission requirements in the grant
provisions. If any reports contain information describing a
``subject invention'' for which the recipient has elected or may
elect to retain title, NASA will use reasonable efforts to delay
public release by NASA or publication by NASA in a NASA technical
series until an application filing date has been established,
provided that the recipient identify the information and the
``subject invention'' to which it relates at the time of submittal.
If required by the NASA Grant Officer, the recipient shall
[[Page 50344]]
provide the filing date, serial number and title, a copy of the
patent application, and a patent number and issue date for any
``subject invention'' in any country in which the recipient has
applied for patents.''
(h) NASA Inventions. NASA will use reasonable efforts to report
inventions made by NASA employees as a consequence of, or which bear
a direct relation to, the performance of specified NASA activities
under this agreement and, upon timely request, will use reasonable
efforts to grant the recipient an exclusive, or partially exclusive,
revocable, royalty-bearing license, subject to the retention of a
royalty-free right of the Government to practice or have practiced
the invention by or on behalf of the Government.
(i) In the event NASA contractors are tasked to perform work in
support of specified activities under a cooperative agreement and
inventions are made by contractor employees, the recipient will
normally retain title to its employee inventions in accordance with
35 U.S.C. 202, 14 CFR part 1245, and Executive Order 12591. In the
event the recipient decides not to pursue rights to title in any
such invention and NASA obtains title to such inventions, NASA will
use reasonable efforts to report such inventions and, upon timely
request, will use reasonable efforts to grant the recipient an
exclusive, or partially exclusive, revocable, royalty-bearing
license, subject to the retention of a royalty-free right of the
Government to practice or have practiced the invention by or on
behalf of the Government.
[End of provision]
Sec. 1260.29 Invention reporting and rights.
(The grant officer may revise the language under paragraph (d) of
this provision to modify each party's rights based on the particular
circumstances of the program and/or the recipient's need to protect
specific proprietary information. Any modification to the standard
language set forth under the provision requires the concurrence of the
Center's Patent Counsel and the provision be printed in full text.)
Invention Reporting and Rights (Date)
(a) As used in this provision:
(1) The term ``invention'' means any invention or discovery
which is or may be patentable or otherwise protectable under Title
35 of the United States Code, or any novel variety of plant which is
or may be protected under the Plant Variety Protection Act (7 U.S.C.
2321 et seq.).
(2) The term ``made'' when used in relation to any invention
means the conception or first actual reduction to practice of such
invention.
(b) The recipient shall report promptly to the grant officer
each invention made in the performance of work under this grant. The
report of such invention shall--
(1) Identify the inventor(s) by full name; and
(2) Include such full and complete technical information
concerning the invention as is necessary to enable an understanding
of the nature and operation thereof.
(c) Reporting shall be made on NASA Form 1679 Disclosure of
Invention and New Technology (Including Software).
(d) The recipient hereby grants to the Government of the United
States of America, as represented by the Administrator of the
National Aeronautics and Space Administration, the full rights,
title, and interest in and to each such invention throughout the
world.
Sec. 1260.30 Rights in data.
(The grant officer may revise the language under this provision to
modify each party's rights based on the particular circumstances of the
program and/or the recipients need to protect specific proprietary
information. Any modification to the standard language set forth under
the provision requires the concurrence of the Center's Patent Counsel
and that the provision be printed in full text.)
Rights in Data (Date)
(a) Fully Funded Efforts.
(1) ``Data'' means recorded information, regardless of form, the
media on which it may be recorded, or the method of recording. The
term includes, but is not limited to, data of a scientific or
technical nature, computer software and documentation thereof, and
data comprising commercial and financial information.
(2) The recipient grants to the Federal Government, a royalty-
free, nonexclusive and irrevocable license to use, reproduce,
distribute (including distribution by transmission) to the public,
perform publicly, prepare derivative works, and display publicly,
data in whole or in part and in any manner for Federal purposes and
to have or permit others to do so for Federal purposes only.
(3) In order that the Federal Government may exercise its
license rights in data, the Federal Government, upon request to the
recipient, shall have the right to review and/or obtain delivery of
data resulting from the performance of work under this grant, and
authorize others to receive data to use for Federal purposes.
(b) Cost Sharing and/or Matching Efforts. When the recipient
cost shares with the Government on the effort, the following is
added:
``(5) In the event data first produced by recipient in carrying
out recipient's responsibilities under an agreement is furnished to
NASA, and recipient considers such data to embody trade secrets or
to comprise commercial or financial information which is privileged
or confidential, and such data is so identified with a suitable
notice or legend, the data will be maintained in confidence and
disclosed and used by the Government and its contractors (under
suitable protective conditions) only for experimental, evaluation,
research and development purposes, by or on behalf of the Government
for an agreed to period of time, and thereafter for Federal purposes
as defined in Sec. 1260.30(a)(2).''
(c) Add the following paragraph in Cooperative Agreements.
``(#) As to data first produced by NASA in carrying out NASA's
responsibilities under a cooperative agreement and which data would
embody trade secrets or would comprise commercial or financial
information that is privileged or confidential if it has been
obtained from the recipient, such data will be marked with an
appropriate legend and maintained in confidence for 5 years (unless
a shorter period has been agreed to between the Government and
recipient) after development of the information, with the express
understanding that during the aforesaid period such data may be
disclosed and used (under suitable protective conditions) by or on
behalf of the Government for Government purposes only, and
thereafter for any purpose whatsoever without restriction on
disclosure and use. Recipient agrees not to disclose such data to
any third party without NASA's written approval until the
aforementioned restricted period expires.''
[End of provision]
Sec. 1260.31 National security.
National Security (Date)
Normally, NASA grants do not involve classified information.
However, if it is known in advance that a grant involves classified
information or if the work on the grant is likely to develop
classified information, individuals performing on the grant who will
have access to the information must obtain the appropriate security
clearance in advance of performing on the grant, in accordance with
NASA Policy Guidance (NPG) 1620.1 Security Procedures and
Guidelines. When access to classified information is not originally
anticipated in the performance of a grant, but such information is
subsequently sought or potentially developed by the grant recipient,
the NASA Grant Officer who issued the grant shall be notified
immediately, and prior to work under the grant proceeding, to
implement the appropriate clearance requirements.
[End of provision]
Sec. 1260.32 Nondiscrimination.
Nondiscrimination (Date)
(a) To the extent provided by law and any applicable agency
regulations, this award and any program assisted thereby are subject
to the provisions of Title VI of the Civil Rights Act of 1964
(Public Law 88-352), Title IX of the Education amendments of 1972
(Public Law 92-318, 20 U.S.C. 1681 et seq.), Section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), the Age Discrimination
Act of 1975 (Public Law 94-135), the implementing regulations issued
pursuant thereto by NASA, and the assurance of compliance which the
recipient has filed with NASA.
(b) The recipient shall obtain from each organization that
applies or serves as a subrecipient, contractor or subcontractor
under this award (for other than the provision of commercially
available supplies, materials, equipment, or general support
services) an assurance of compliance as required by NASA
regulations.
(c) Work on NASA grants is subject to the provisions of Title VI
of the Civil Rights Act
[[Page 50345]]
of 1964 (Public Law 88-352; 42 U.S.C. 2000d-l), Title IX of the
Education Amendments of 1972 (20 U.S.C. 1680 et seq.), Section 504
of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), the
Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), and the
NASA implementing regulations (14 CFR parts 1250, 1251, 1252, and
1253).
[End of provision]
Sec. 1260.33 Subcontracts.
Subcontracts (Date)
(a) Recipients shall notify NASA when a subcontract award will
be made that falls within the thresholds established at
Sec. 1260.144(e). When pre-award review of a subcontract is
requested by the NASA Grant Officer in accordance with
Sec. 1260.144(e), the following specific documents will be made
available to the NASA Grant Officer. (The Grant Officer can request
additional documents):
(1) A copy of the proposed subcontract.
(2) The basis for subcontractor selection.
(3) Justification for lack of competition when competitive bids
or offers are not obtained.
(4) The subcontract budget and basis for subcontract cost or
price.
(b) The recipient (with the exception of foreign organizations)
shall utilize small business concerns, small disadvantaged business
concerns, Historically Black Colleges and Universities, minority
educational institutions, and women-owned small business concerns as
subcontractors to the maximum extent practicable.
[End of provision]
Sec. 1260.34 Clean air and water.
Clean Air and Water (Date)
(Applicable only if the award exceeds $100,000, or a facility to
be used has been the subject of a conviction under the Clean Air Act
(42 U.S.C. 1857c-8(c)(1) or the Federal Water Pollution Control Act
(33 U.S.C. 1319(c)), and is listed by EPA, or if the award is not
otherwise exempt). The recipient agrees to the following:
(a) Comply with applicable standards, orders or regulations
issued pursuant to the Clean Air Act, as amended (42 U.S.C. 7401 et
seq.) and of the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.).
(b) Ensure that no portion of the work under this award will be
performed in a facility listed on the Environmental Protection
Agency (EPA) List of Violating Facilities on the date that this
award was effective unless and until the EPA eliminates the name of
such facility or facilities from such listings.
(c) Use its best efforts to comply with clean air standards and
clean water standards at the facility in which the award is being
performed.
(d) Insert the substance of the provisions of this clause into
any nonexempt subaward or contract under the award.
(e) Report violations to NASA or to EPA.
[End of provision]
Sec. 1260.35 Investigative requirements.
Investigative Requirements (Date)
(a) As requested by NASA, the recipient of each grant, and any
other individuals to perform on the grant, agree to provide
sufficient personal/biographical information necessary to conduct an
investigation of the individual's background. The purpose of the
investigation is to allow access to a NASA Center, or to NASA
information, for performance of this grant. The recipient
acknowledges that NASA reserves the right to perform security
checks, and to deny or restrict access to a NASA Center, facility,
computer system, or technical information as appropriate.
(b) All visit requests must be submitted in a timely manner in
accordance with instructions provided by the Center(s) to be
visited.
[End of provision]
Sec. 1260.36 Travel and transportation.
Travel and Transportation (Date)
(a) The Fly American Act, 49 U.S.C. 1517, requires the recipient
to use U.S. flag air carriers for international air transportation
of personnel and property to the extent that service by those
carriers is available.
(b) Department of Transportation regulations, 49 CFR part 173,
govern recipient shipment of hazardous materials and other items.
[End of provision]
Sec. 1260.37 Safety.
Safety (Date)
(a) The recipient shall act responsibly in matters of safety and
shall take all reasonable safety measures in performing under this
grant or cooperative agreement. The recipient shall comply with all
applicable federal, state, and local laws relating to safety. The
recipient shall maintain a record of, and will notify the NASA Grant
Officer of any accident involving death, disabling injury or
substantial loss of property. The recipient will advise NASA of
hazards that come to its attention as a result of the work performed
through routine status reports furnished in compliance with this
grant or cooperative agreement.
(b) Where the work under this grant or cooperative agreement
involves flight hardware, the hazardous aspects, if any, of such
hardware will be identified, in writing, by the recipient.
Compliance with this provision by subcontractors shall be the
responsibility of the recipient.
[End of provision]
Sec. 1260.38 Drug-free workplace.
Drug-Free Workplace (Date)
(a) Definitions. As used in this provision--
Controlled substance means a controlled substance in schedules I
through V of section 202 of the Controlled Substances Act (21 U.S.C.
812) and as further defined in regulation at 21 CFR 1308.11 through
1308.15.
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the
Federal or State criminal drug statutes.
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing,
possession, or use of any controlled substance.
Drug-free workplace means the site(s) for the performance of
work done by the Recipient in connection with a specific grant or
cooperative agreement at which employees of the Recipient are
prohibited from engaging in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance.
Employee means an employee of a Recipient directly engaged in
the performance of work under a Government grant or cooperative
agreement. ``Directly engaged'' is defined to include all direct
cost employees and any other Recipient employee who has other than a
minimal impact or involvement in performance of the grant or
cooperative agreement.
Individual means a proposer/recipient that has no more than one
employee including the proposer/recipient.
(b) The Recipient, if other than an individual, shall--within 30
days after award (unless a longer period is agreed to in writing),
or as soon as possible for grants and cooperative agreements of less
than 30 days performance duration--
(1) Publish a statement notifying its employees that the
unlawful manufacture, distribution, dispensing, possession, or use
of a controlled substance is prohibited in the Recipient's workplace
and specifying the actions that will be taken against employees for
violations of such prohibition;
(2) Establish an ongoing drug-free awareness program to inform
such employees about--
(i) The dangers of drug abuse in the workplace;
(ii) The Recipient's policy of maintaining a drug-free
workplace;
(iii) Any available drug counseling, rehabilitation, and
employee assistance programs; and
(iv) The penalties that may be imposed upon employees for drug
abuse violations occurring in the workplace;
(3) Provide all employees engaged in performance of the grant or
cooperative agreement with a copy of the statement required by
paragraph (b)(1) of this provision;
(4) Notify such employees in writing in the statement required
by paragraph (b)(1) of this provision that, as a condition of
continued employment on the grant or cooperative agreement, the
employee will--
(i) Abide by the terms of the statement; and
(ii) Notify the employer in writing of the employee's conviction
under a criminal drug statute for a violation occurring in the
workplace no later than 5 days after such conviction;
(5) Notify the Grant Officer in writing within 10 days after
receiving notice under paragraph (b)(4)(ii) of this provision, from
an employee or otherwise receiving actual notice of such conviction.
The notice shall include the position title of the employee;
(6) Within 30 days after receiving notice under paragraph
(b)(4)(ii) of this provision of
[[Page 50346]]
a conviction, take one of the following actions with respect to any
employee who is convicted of a drug abuse violation occurring in the
workplace:
(i) Taking appropriate personnel action against such employee,
up to and including termination; or
(ii) Require such employee to satisfactorily participate in a
drug abuse assistance or rehabilitation program approved for such
purposes by a Federal, State, or local health, law enforcement, or
other appropriate agency; and
(7) Make a good faith effort to maintain a drug-free workplace
through implementation of paragraphs (b)(1) though (b)(6) of this
provision.
(c) The Recipient, if an individual, agrees by acceptance of the
grant or cooperative agreement, not to engage in the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance during performance.
(d) In addition to other remedies available to the Government,
the Recipient's failure to comply with the requirements of paragraph
(b) or (c) of this provision may render the Recipient subject to
suspension of payments, termination of the grant or cooperative
agreement, and suspension or debarment.
[End of provision]
Special Conditions
Sec. 1260.50 Special conditions.
(a) In addition to the provisions set forth in Secs. 1260.21
through 1260.38, NASA grants and cooperative agreements are subject to
special conditions, which either are not applicable to all awards or
are temporary in nature. Examples are found in Secs. 1260.51 through
1260.69, but NASA may impose other conditions as discussed in
Sec. 1260.114 or as the requirements dictate. Deviations are not
required for changes made to special conditions.
(b) Special conditions will be printed in full text.
(c) In facilities grants, special conditions will be selected on a
case-by-case basis. As appropriate, the requirements of the following
sections will apply: Sec. 1260.123(c), Cost Sharing or Matching;
Sec. 1260.125(h), Revision of Budget and Program Plans; and
Sec. 1260.132, Real Property.
(d) Research grants with foreign organizations will include special
conditions at Secs. 1260.59 through 1260.61, modified as necessary,
when not covered under a Memorandum of Agreement (MOA). In addition,
other special conditions (e.g., Secs. 1260.62 through 1260.65) will be
written with the aid of legal counsel, and added when necessary.
Sec. 1260.51 Cooperative agreement special condition.
Cooperative Agreement Special Condition (Date)
(a) This award is a cooperative agreement as it is anticipated
there will be substantial NASA involvement during performance of the
effort. NASA and the recipient mutually agree to the following
statement of anticipated cooperative interactions which may occur
during the performance of this effort:
(Reference the approved proposal that contains a detailed
description of the work and insert a concise statement of the exact
nature of the cooperative interactions that deals with existing
facts and not contingencies.)
(b) The terms ``grant'' and ``recipient'' mean ``cooperative
agreement'' and ``recipient of cooperative agreement,''
respectively, wherever the terms appear in provisions and special
conditions included in this agreement.
(c) NASA's ability to participate and perform its collaborative
effort under this cooperative agreement is subject to the
availability of appropriated funds and nothing in this cooperative
agreement commits the United States Congress to appropriate funds
therefor.
Sec. 1260.52 Multiple year grant or cooperative agreement.
Multiple Year Grant or Cooperative Agreement (Date)
This is a multiple year grant or cooperative agreement.
Contingent on the availability of funds, scientific progress of the
project, and continued relevance to NASA programs, NASA anticipates
continuing support at approximately the following levels:
Second year $________, Anticipated funding date ________.
Third year $________, Anticipated funding date ________.
(Periods may be added or omitted, as applicable)
Sec. 1260.53 Incremental funding.
Incremental Funding (Date)
(a) Only $________ of the amount indicated on the face of this
award is available for payment and allotted to this award. NASA
contemplates making additional allotments of funds during
performance of this effort. It is anticipated that these funds will
be obligated as appropriated funds become available without any
action required by the recipient. The recipient will be given
written notification by the NASA Grant Officer.
(b) The recipient agrees to perform work up to the point at
which the total amount paid or payable by the Government
approximates but does not exceed the total amount actually allotted
to this grant or cooperative agreement. NASA is not obligated to
reimburse the recipient for the expenditure of amounts in excess of
the total funds allotted by NASA to this grant or cooperative
agreement. The recipient is not authorized to continue performance
beyond the amount allotted to this award.
Sec. 1260.54 Cost sharing.
Cost Sharing (Date)
(a) NASA and the recipient will share in providing the resources
necessary to perform the agreement. NASA funding and non-cash
contributions (personnel, equipment, facilities, etc.) and the
dollar value of the recipient's cash and/or non-cash contribution
will be on a ____ percent NASA; ____ percent recipient basis.
(b) The funding and non-cash contributions by both parties is
represented by the following dollar amounts:
Government Share-------------------------------------------------------
Recipient Share--------------------------------------------------------
Total Amount-----------------------------------------------------------
(c) Criteria and procedures for the allowability and
allocability of cash and non-cash contributions shall be governed by
Sec. 1260.123, Cost Sharing or Matching. The applicable Federal cost
principles are cited in Sec. 1260.127.
(d) The recipient's share shall not be charged to the Government
under this agreement or under any other contract, grant, or
cooperative agreement.
Sec. 1260.55 Reports substitution.
Reports Substitution (Date)
Technical Reports may be substituted for the required
Performance Reports. The title page of such reports shall clearly
indicate that the substitution has been made and will show the
period covered by the originally required Performance Report.
Sec. 1260.56 Withholding.
Withholding (Date)
If a recipient fails to comply with the terms and conditions of
this grant or cooperative agreement, including reporting
requirements, NASA may withhold advance payments under this award,
and may also withhold future awards to the recipient, pending
correction of the deficiency by the recipient. If advance payments
are withheld, the Grant Officer will notify the NASA Financial
Management Office when payments may resume.
Sec. 1260.57 New technology.
New Technology (Date)
(a) Definitions.
Administrator, as used in this special condition, means the
Administrator of the National Aeronautics and Space Administration
(NASA) or duly authorized representative.
Grant, as used in this special condition, means any actual or
proposed grant, cooperative agreement, understanding, or other
arrangement, and includes any assignment, substitution of parties,
or subcontract executed or entered into thereunder.
Made, as used in this special condition, means conception or
first actual reduction to practice; provided, that in the case of a
variety of plant, the date of determination (as defined in section
41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d)) must
also occur during the period of grant performance.
[[Page 50347]]
Nonprofit organization, as used in this special condition, means
a domestic university or other institution of higher education or an
organization of the type described in section 501(c)(3) of the
Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and exempt from
taxation under section 501(a) of the Internal Revenue Code (26
U.S.C. 501(a)), or any domestic nonprofit scientific or educational
organization qualified under a State nonprofit organization statute.
Practical application, as used in this special condition, means
to manufacture, in the case of a composition or product; to
practice, in the case of a process or method; or to operate, in case
of a machine or system; and, in each case, under such conditions as
to establish that the invention is being utilized and that its
benefits are, to the extent permitted by law or Government
regulations, available to the public on reasonable terms.
Reportable item, as used in this special condition, means any
invention, discovery, improvement, or innovation of the grantee,
whether or not patentable or otherwise protectable under Title 35 of
the United States Code, made in the performance of any work under
any NASA grant or in the performance of any work that is
reimbursable under any provision in any NASA grant providing for
reimbursement of costs incurred before the effective date of the
grant. Reportable items include, but are not limited to, new
processes, machines, manufactures, and compositions of matter, and
improvements to, or new applications of, existing processes,
machines, manufactures, and compositions of matter. Reportable items
also include new computer programs, and improvements to, or new
applications of, existing computer programs, whether or not
copyrightable or otherwise protectable under Title 17 of the United
States Code.
Small business firm, as used in this special condition, means a
domestic small business concern as defined at 15 U.S.C. 632 and
implementing regulations (see 13 CFR 121.401 through 121.413) of the
Administrator of the Small Business Administration.
Subject invention, as used in this special condition, means any
reportable item which is or may be patentable or otherwise
protectible under Title 35 of the United States Code, or any novel
variety of plant that is or may be protectable under the Plant
Variety Protection Act (7 U.S.C. 2321 et seq.).
(b) Allocation of principal rights.
(1) Presumption of title.
(i) Any reportable item that the Administrator considers to be a
subject invention shall be presumed to have been made in the manner
specified in paragraph (1) or (2) of section 305(a) of the National
Aeronautics and Space Act of 1958 (42 U.S.C. 2457(a)) (hereinafter
called ``the Act''), and that presumption shall be conclusive unless
at the time of reporting the reportable item the Recipient submits
to the Grant Officer a written statement, containing supporting
details, demonstrating that the reportable item was not made in the
manner specified in paragraph (1) or (2) of section 305(a) of the
Act.
(ii) Regardless of whether title to a given subject invention
would otherwise be subject to an advance waiver or is the subject of
a petition for waiver, the Recipient may nevertheless file the
statement described in paragraph (b)(1)(i) of this special
condition. The Administrator will review the information furnished
by the Recipient in any such statement and any other available
information relating to the circumstances surrounding the making of
the subject invention and will notify the Recipient whether the
Administrator has determined that the subject invention was made in
the manner specified in paragraph (1) or (2) of section 305(a) of
the Act.
(2) Property rights in subject inventions. Each subject
invention for which the presumption of paragraph (b)(1)(i) of this
special condition is conclusive or for which there has been a
determination that it was made in the manner specified in paragraph
(1) or (2) of section 305(a) of the Act shall be the exclusive
property of the United States as represented by NASA unless the
Administrator waives all or any part of the rights of the United
States, as provided in paragraph (b)(3) of this special condition.
(3) Waiver of rights.
(i) Section 305(f) of the Act provides for the promulgation of
regulations by which the Administrator may waive the rights of the
United States with respect to any invention or class of inventions
made or that may be made under conditions specified in paragraph (1)
or (2) of section 305(a) of the Act. The promulgated NASA Patent
Waiver Regulations, 14 CFR part 1245, subpart 1, have adopted the
Presidential Memorandum on Government Patent Policy of February 18,
1983, as a guide in acting on petitions (requests) for such waiver
of rights.
(ii) As provided in 14 CFR part 1245, subpart 1, Recipients may
petition, either prior to execution of the grant or within 30 days
after execution of the grant, for advance waiver of rights to any or
all of the inventions that may be made under a grant. If such a
petition is not submitted, or if after submission it is denied, the
Recipient (or an employee inventor of the Recipient) may petition
for waiver of rights to an identified subject invention within eight
months of first disclosure of the invention in accordance with
paragraph (e)(2) of this special condition, or within such longer
period as may be authorized in accordance with 14 CFR 1245.105.
(c) Minimum rights reserved by the Government.
(1) With respect to each subject invention for which a waiver of
rights is applicable in accordance with 14 CFR part 1245, subpart 1,
the Government reserves--
(i) An irrevocable, nonexclusive, nontransferable, royalty-free
license for the practice of such invention throughout the world by
or on behalf of the United States or any foreign government in
accordance with any treaty or agreement with the United States; and
(ii) Such other rights as stated in 14 CFR 1245.107.
(2) Nothing contained in this paragraph (c) shall be considered
to grant to the Government any rights with respect to any invention
other than a subject invention.
(d) Minimum rights to the Recipient.
(1) The Recipient is hereby granted a revocable, nonexclusive,
royalty-free license in each patent application filed in any country
on a subject invention and any resulting patent in which the
Government acquires title, unless the Recipient fails to disclose
the subject invention within the times specified in paragraph (e)(2)
of this special condition. The Recipient's license extends to its
domestic subsidiaries and affiliates, if any, within the corporate
structure of which the Recipient is a party and includes the right
to grant sublicenses of the same scope to the extent the Recipient
was legally obligated to do so at the time the grant was awarded.
The license is transferable only with the approval of the
Administrator except when transferred to the successor of that part
of the Recipient's business to which the invention pertains.
(2) The Recipient's domestic license may be revoked or modified
by the Administrator to the extent necessary to achieve expeditious
practical application of the subject invention pursuant to an
application for an exclusive license submitted in accordance with 37
CFR part 404, Licensing of Government Owned Inventions. This license
will not be revoked in that field of use or the geographical areas
in which the Recipient has achieved practical application and
continues to make the benefits of the invention reasonably
accessible to the public. The license in any foreign country may be
revoked or modified at the discretion of the Administrator to the
extent the Recipient, its licensees, or its domestic subsidiaries or
affiliates have failed to achieve practical application in that
foreign country.
(3) Before revocation or modification of the license, the
Recipient will be provided a written notice of the Administrator's
intention to revoke or modify the license, and the Recipient will be
allowed 30 days (or such other time as may be authorized by the
Administrator for good cause shown by the Recipient) after the
notice to show cause why the license should not be revoked or
modified. The Recipient has the right to appeal to the Administrator
any decision concerning the revocation or modification of its
license.
(e) Invention identification, disclosures, and reports.
(1) The Recipient shall establish and maintain active and
effective procedures to assure that reportable items are promptly
identified and disclosed to Recipient personnel responsible for the
administration of this New Technology special condition within six
months of conception and/or first actual reduction to practice,
whichever occurs first in the performance of work under this grant.
These procedures shall include the maintenance of laboratory
notebooks or equivalent records and other records as are reasonably
necessary to document the conception and/or the first actual
reduction to practice of the reportable items, and records that show
that the procedures for identifying and disclosing reportable items
are followed. Upon request, the Recipient shall furnish the Grant
Officer a description of such procedures for evaluation and for
determination as to their effectiveness.
(2) The Recipient will disclose each reportable item to the
Grant Officer within
[[Page 50348]]
two months after the inventor discloses it in writing to Recipient
personnel responsible for the administration of this New Technology
special condition or, if earlier, within six months after the
Recipient becomes aware that a reportable item has been made, but in
any event for subject inventions before any on sale, public use, or
publication of such invention known to the Recipient. The disclosure
to the agency shall be in the form of a written report and shall
identify the grant under which the reportable item was made and the
inventor(s) or innovator(s). It shall be sufficiently complete in
technical detail to convey a clear understanding, to the extent
known at the time of the disclosure, of the nature, purpose,
operation, and physical, chemical, biological, or electrical
characteristics of the reportable item. The disclosure shall also
identify any publication, on sale, or public use of any subject
invention and whether a manuscript describing such invention has
been submitted for publication and, if so, whether it has been
accepted for publication at the time of disclosure. In addition,
after disclosure to the agency, the Recipient will promptly notify
the agency of the acceptance of any manuscript describing a subject
invention for publication or of any on sale or public use planned by
the Recipient for such invention.
(3) The Recipient shall furnish the Grant Officer the following:
(i) Interim reports every 12 months (or such longer period as
may be specified by the Grant Officer) from the date of the grant,
listing reportable items during that period, and certifying that all
reportable items have been disclosed (or that there are no such
inventions) and that the procedures required by paragraph (e)(1) of
this special condition have been followed.
(ii) A final report, within 3 months after completion of the
grant work, listing all reportable items or certifying that there
were no such reportable items, and listing all subcontracts at any
tier containing a patent rights clause or certifying that there were
no such subcontracts.
(4) The Recipient agrees, upon written request of the Grant
Officer, to furnish additional technical and other information
available to the Recipient as is necessary for the preparation of a
patent application on a subject invention and for the prosecution of
the patent application, and to execute all papers necessary to file
patent applications on subject inventions and to establish the
Government's rights in the subject inventions.
(5) The Recipient agrees, subject to FAR 27.302(j), that the
Government may duplicate and disclose subject invention disclosures
and all other reports and papers furnished or required to be
furnished pursuant to this special condition.
(f) Examination of records relating to inventions.
(1) The Grant Officer or any authorized representative shall,
until 3 years after final payment under this grant, have the right
to examine any books (including laboratory notebooks), records, and
documents of the Recipient relating to the conception or first
actual reduction to practice of inventions in the same field of
technology as the work under this grant to determine whether--
(i) Any such inventions are subject inventions;
(ii) The Recipient has established and maintained the procedures
required by paragraph (e)(1) of this special condition; and
(iii) The Recipient and its inventors have complied with the
procedures.
(2) If the Grant Officer learns of an unreported Recipient
grantee invention that the Grant Officer believes may be a subject
invention, the Recipient may be required to disclose the invention
to the agency for a determination of ownership rights.
(3) Any examination of records under this paragraph will be
subject to appropriate conditions to protect the confidentiality of
the information involved.
(g) Withholding of payment (this paragraph does not apply to
subcontracts).
(1) Any time before final payment under this grant, the Grant
Officer may, in the Government's interest, withhold payment until a
reserve not exceeding $50,000 or 5 percent of the amount of this
grant, whichever is less, shall have been set aside if, in the Grant
Officer's opinion, the Recipient fails to--
(i) Establish, maintain, and follow effective procedures for
identifying and disclosing reportable items pursuant to paragraph
(e)(1) of this special condition;
(ii) Disclose any reportable items pursuant to paragraph (e)(2)
of this special condition;
(iii) Deliver acceptable interim reports pursuant to paragraph
(e)(3)(i) of this special condition; or
(iv) Provide the information regarding subcontracts pursuant to
paragraph (h)(4) of this special condition.
(2) Such reserve or balance shall be withheld until the Grant
Officer has determined that the Recipient has rectified whatever
deficiencies exist and has delivered all reports, disclosures, and
other information required by the grant.
(3) Final payment under the grant shall not be made before the
Recipient delivers to the Grant Officer all disclosures of
reportable items required by paragraph (e)(2) of this special
condition, and an acceptable final report pursuant to paragraph
(e)(3)(ii) of this special condition.
(4) The Grant Officer may decrease or increase the sums withheld
up to the maximum authorized in paragraph (g)(1) of this special
condition. No amount shall be withheld under this paragraph while
the amount specified by this paragraph is being withheld under other
provisions of the grant. The withholding of any amount or the
subsequent payment thereof shall not be construed as a waiver of any
Government rights.
(h) Subcontracts.
(1) Unless otherwise authorized or directed by the Grant
Officer, the Recipient shall--
(i) Include the clause at NASA FAR Supplement (NFS) 1852.227-70,
New Technology, (suitably modified to identify the parties) in any
subcontract hereunder (regardless of tier) with other than a small
business firm or nonprofit organization for the performance of
experimental, developmental, or research work; and
(ii) Include the clause at FAR 52.227-11 (suitably modified to
identify the parties) in any subcontract hereunder (regardless of
tier) with a small business firm or nonprofit organization for the
performance of experimental, developmental, or research work.
(2) In the event of a refusal by a prospective subcontractor to
accept such a clause the Recipient--
(i) Shall promptly submit a written notice to the Grant Officer
setting forth the subcontractor's reasons for such refusal and other
pertinent information that may expedite disposition of the matter;
and
(ii) Shall not proceed with such subcontract without the written
authorization of the Grant Officer.
(3) In the case of subcontracts at any tier, the agency,
subcontractor, and Recipient agree that the mutual obligations of
the parties created by this special condition constitute a contract
between the subcontractor and NASA with respect to those matters
covered by this grant.
(4) The Recipient shall promptly notify the Grant Officer in
writing upon the award of any subcontract at any tier containing a
patent rights clause by identifying the subcontractor, the
applicable patent rights clause, the work to be performed under the
subcontract, and the dates of award and estimated completion. Upon
request of the Grant Officer, the Recipient shall furnish a copy of
such subcontract, and, no more frequently than annually, a listing
of the subcontracts that have been awarded.
(5) The subcontractor will retain all rights provided for the
Recipient in paragraph (h)(1)(i) or (ii) of this special condition,
whichever is included in the subcontract, and the Recipient will
not, as part of the consideration for awarding the subcontract,
obtain rights in the subcontractor's subject inventions.
(i) Preference for United States industry. Unless provided
otherwise, no Recipient that receives title to any subject invention
and no assignee of any such Recipient shall grant to any person the
exclusive right to use or sell any subject invention in the United
States unless such person agrees that any products embodying the
subject invention will be manufactured substantially in the United
States. However, in individual cases, the requirement may be waived
by the Administrator upon a showing by the Recipient or assignee
that reasonable but unsuccessful efforts have been made to grant
licenses on similar terms to potential licensees that would be
likely to manufacture substantially in the United States or that
under the circumstances domestic manufacture is not commercially
feasible.
Sec. 1260.58 Designation of new technology representative and patent
representative.
Designation of New Technology Representative and Patent Representative
(Date)
(a) For purposes of administration of the special condition of
this grant entitled ``New Technology,'' the following named
representatives are hereby designated by the Grant Officer to
administer such special condition:
[[Page 50349]]
------------------------------------------------------------------------
Address (including
Title Office code zip code)
------------------------------------------------------------------------
New Technology Representative
Patent Representative
------------------------------------------------------------------------
(b) Reports of reportable items, and disclosure of subject
inventions, interim reports, final reports, utilization reports, and
other reports required by the special condition, as well as any
correspondence with respect to such matters, should be directed to
the New Technology Representative unless transmitted in response to
correspondence or request from the Patent Representative. Inquires
or requests regarding disposition of rights, election of rights, or
related matters should be directed to the Patent Representative.
This special condition shall be included in any subcontract
hereunder requiring a ``New Technology'' provision or ``Patent
Rights--Retention by the Contractor (Short Form)'' clause, unless
otherwise authorized or directed by the Grant Officer. The
respective responsibilities and authorities of the above-named
representatives are set forth in 1827.305-370 of the NASA FAR
Supplement.
Sec. 1260.59 Choice of law.
Choice of Law (Date)
The rights and obligations of the parties to the grant (or
cooperative agreement) shall be ascertainable by recourse to the
laws of the United States of America. However, it is understood that
the laws of the recipient's country will generally apply to
recipient activities within that country.
Sec. 1260.60 Public information.
Public Information (Date)
Information regarding this grant (including a copy of this award
document) may be released by the recipient without restriction.
However, technical information relating to work performed under this
grant where there was a NASA contribution should be released by the
recipient only after consultation with the NASA Technical Officer.
Sec. 1260.61 Allocation of risk/liability.
Allocation of Risk/Liability (Date)
(a) With respect to activities undertaken under this agreement,
the recipient agrees not to make any claim against NASA or the U.S.
Government with respect to the injury or death of its employees or
its contractors and subcontractor employees, or to the loss of its
property or that of its contractors and subcontractors, whether such
injury, death, damage or loss arises through negligence or
otherwise, except in the case of willful misconduct.
(b) In addition, the recipient agrees to indemnify and hold the
U.S. Government and its contractors and subcontractors harmless from
any third party claim, judgment, or cost arising from the injury to
or death of any person, or for damage to or loss of any property,
arising as a result of its possession or use of any U.S. Government
property.
Sec. 1260.62 Payment--to foreign organizations.
Payment--To Foreign Organizations
(For grants or cooperative agreements with foreign
organizations, this clause will be developed on a case-by-case
basis.)
Sec. 1260.63 Customs clearance and visas.
Customs Clearance and Visas
(For grants or cooperative agreements with foreign
organizations, this clause will be developed on a case-by-case
basis.)
Sec. 1260.64 Taxes.
Taxes
(For grants or cooperative agreements with foreign
organizations, this clause will be developed on a case-by-case
basis.)
Sec. 1260.65 Exchange of technical data and goods.
Exchange of Technical Data and Goods
(For grants or cooperative agreements with foreign
organizations, this clause will be developed on a case-by-case
basis.)
Sec. 1260.66 Listing of reportable equipment and other property.
Listing of Reportable Equipment and Other Property (Date)
(a) Title to federally-owned property provided to the recipient
remains vested in the Federal Government, and shall be managed in
accordance with 1260.133. The following items of federally-owned
property are being provided to the recipient for use in performance
of the work under this grant or cooperative agreement:
{List property or state ``not applicable.''}
(b) The following specific items of equipment acquired by the
recipient have been identified by NASA for transfer of title to the
Government when no longer required for performance under this grant
or cooperative agreement. This equipment will be managed in
accordance with Sec. 1260.134, and shall be transferred to NASA or
NASA's designee in accordance with the procedures set forth at
Sec. 1260.134(g):
{List property or state ``not applicable.''}
Sec. 1260.67 Equipment and other property under grants with commercial
firms.
Equipment and Other Property Under Grants With Commercial Firms (Date)
(a) This grant permits acquisition of special purpose equipment
required for the conduct of research. Acquisition of special purpose
equipment costing in excess of $5,000 and not included in the
approved proposal budget requires the prior approval of the Grant
Officer unless the item is merely a different model of an item shown
in the approved proposal budget.
(b) Recipients may not purchase, as a direct cost to the grant,
items of general purpose equipment, examples of which include but
are not limited to office equipment and furnishings, air
conditioning equipment, reproduction and printing equipment, motor
vehicles, and automatic data processing equipment. If the Recipient
requests an exception, the Recipient shall submit a written request
for Grant Officer approval, prior to purchase by the Recipient,
stating why the Recipient cannot charge the general purpose
equipment to indirect costs.
(c) Under no circumstances shall grant funds be used to acquire
land or any interest therein, to acquire or construct facilities (as
defined in 48 CFR (FAR) 45.301), or to procure passenger carrying
vehicles.
(d) The Government shall have title to equipment and other
personal property acquired with Government funds. Such property
shall be disposed of pursuant to 48 CFR (FAR) 45.603.
(e) Title to Government furnished equipment (including
equipment, title to which has been transferred to the Government
prior to completion of the work) will remain with the Government.
(f) The Recipient shall establish and maintain property
management standards for Government property and otherwise manage
such property as set forth in 48 CFR (FAR) 45.5 and 48 CFR (NFS)
1845.5.
(g) Recipients shall submit annually a NASA Form 1018, NASA
Property in the Custody of Contractors, in accordance with the
instructions on the form, the provisions of 48 CFR (NFS) 1845.71 and
any supplemental instructions that may be issued by NASA for the
current reporting period. The original NF 1018 shall be submitted to
the center Deputy Chief Financial Officer, Finance, with three
copies sent concurrently to the center Industrial Property Officer.
The annual reporting period shall be from October 1 of each year
through September 30 of the following year. The report shall be
submitted in time to be received by October 31. Negative reports
(i.e. no reportable property) are required. The information
contained in the reports is entered into the NASA accounting system
to reflect current asset values for agency financial statement
purposes. Therefore, it is essential that required reports be
received no later than October 31. A final report is required within
30 days after expiration of the agreement.
(h) The requirements set forth in this special condition
supercedes grant provision Sec. 1260.27, Equipment and Other
Property.
Sec. 1260.68 Invoices and payments under grants with commercial firms.
Invoices and Payments Under Grants With Commercial Firms (Date)
(a) Invoices for payment of actual incurred costs shall be
submitted by the recipient no more frequently than on a quarterly
basis.
(b) Invoices shall be submitted by the recipient to the
following offices:
(1) The original invoice shall be sent directly to the payment
office designated on the grant cover page.
(2) Copies of the invoice shall be sent to the NASA Technical
Officer and NASA Grant Officer.
(c) All invoices shall reference the grant number.
(d) The final invoice shall be marked ``Final'' and shall be
submitted within 90 days of the expiration of the grant.
[[Page 50350]]
(e) The requirements set forth in this special condition
supercedes grant provision Sec. 1260.26, Financial Management.
Sec. 1260.69 Electronic funds transfer payment methods.
Electronic Funds Transfer Payment Methods (Date)
Payments under this grant will be made by the Government by
electronic funds transfer through the Treasury Fedline Payment
System (FEDLINE) or the Automated Clearing House (ACH), at the
option of the Government. After award, but no later than 14 days
before an invoice is submitted, the Recipient shall designate a
financial institution for receipt of electronic funds transfer
payments, and shall submit this designation to the Grant Officer or
other Government official, as directed.
(a) For payment through FEDLINE, the Recipient shall provide the
following information:
(1) Name, address, and telegraphic abbreviation of the financial
institution receiving payment.
(2) The American Bankers Association 9-digit identifying number
for wire transfers of the financing institution receiving payment if
the institution has access to the Federal Reserve Communication
System.
(3) Payee's account number at the financial institution where
funds are to be transferred.
(4) If the financial institution does not have access to the
Federal Reserve Communications System, name, address, and
telegraphic abbreviation of the correspondent financial institution
through which the financial institution receiving payment obtains
wire transfer activity. Provide the telegraphic abbreviation and
American Bankers Association identifying number for the
correspondent institution.
(b) For payment through ACH, the Recipient shall provide the
following information:
(1) Routing transit number of the financial institution
receiving payment (same as American Bankers Association identifying
number used for FEDLINE).
(2) Number of account to which funds are to be deposited.
(3) Type of depositor account (``C'' for checking, ``S'' for
savings).
(4) If the Recipient is a new enrollee to the ACH system, a
``Payment Information Form,'' SF 3881, must be completed before
payment can be processed.
(c) In the event the Recipient, during the performance of this
grant, elects to designate a different financial institution for the
receipt of any payment made using electronic funds transfer
procedures, notification of such change and the required information
specified above must be received by the appropriate Government
official 30 days prior to the date such change is to become
effective.
(d) The documents furnishing the information required in this
clause must be dated and contain the signature, title, and telephone
number of the Recipient official authorized to provide it, as well
as the Recipient's name and contract number.
(e) Failure to properly designate a financial institution or to
provide appropriate payee bank account information may delay
payments of amounts otherwise properly due.
(f) The requirements set forth in this special condition
supercedes grant provision 1260.26, Financial Management.
Post-Award Requirements
Sec. 1260.70 Delegation of administration.
(a) Property administration and closeout of NASA grants and
cooperative agreements will be delegated to the Office of Naval
Research (ONR). Exceptions to this policy are:
(1) Training grants will not be delegated.
(2) Grants of short duration (9 months or less) or low dollar value
($50k or less) will normally not be delegated.
(3) Grant officers may waive specific administration requirements
in exceptional circumstances for individual grants. Exceptions to
delegation must be justified and approved in writing by the grant
officer, and made part of the file.
(4) Waiver of delegation of property administration or closeout to
be instituted by a center as a standard practice constitutes a
deviation to this handbook, and requires approval in accordance with
1260.7.
(b) Delegations will be made by use of NF 1674 (Exhibit F to
subpart A of this part 1260). The NF 1674, the award document, and the
approved budget will be sent to ONR in a single package
(electronically, when possible).
(c) Upon acceptance of a delegation, ONR agrees to the following:
(1) On a monthly basis, ONR will provide each center a Report of
Accepted Delegations listing each grant or cooperative agreement
accepted for administration, with pertinent information including the
ONR point of contacts name, phone number, and e-mail address.
(2) On a monthly basis, ONR will electronically send to each Center
Commercial Technology Office a listing of New Technology Reports it has
received.
(3) On a quarterly basis, ONR will provide the cognizant grant
officers a ``List of Delinquent Recipients'' that failed to provide
timely interim or final reports.
(4) Property administration should always be delegated, even if it
is not anticipated that property will be provided by the government or
acquired by the recipient. ONR shall follow DoD property administration
policies and procedures, plus the following NASA requirements:
(i) The recipient shall maintain property records and manage
nonexpendable personal property in accordance with 14 CFR 1260.134.
During Property Control System Analyses (PCSA), ONR will check the
recipient's understanding and test compliance of property management
requirements, including the accuracy of recipient property reports. ONR
will provide one copy of each PCSA Report to the appropriate NASA
center industrial property officer.
(ii) ONR will investigate and notify NASA as appropriate for any
unauthorized property acquisitions by the recipient. See the provision
at 1260.27.
(iii) ONR will notify the cognizant grant officer and industrial
policy officer when property is lost, damaged or destroyed.
(iv) Under no circumstances will Government property be disposed
without instructions from NASA.
(v) Prior to disposition, except when returned to NASA or
reutilized on other NASA programs, ONR will ensure all NASA
identifications are removed or obliterated from property, and hard
drives of computers are cleared of sensitive or NASA owned/licensed
software/data.
Sec. 1260.71 Supplements and renewals.
(a) A NASA grant officer can unilaterally make minor or
administrative changes to a grant; e.g., Reports Substitution
(Sec. 1260.55) and Withholding (Sec. 1260.56).
(b) To ensure timely completion and closeout of grants, renewal
proposals to continue the same effort at the same institution that are
accepted for award by NASA will be awarded as new grants versus
continuation of the existing grant.
(1) When work under a grant is to be continued through an
extension, or through a renewal of the work under a new grant, the
continuation effort should be instituted concurrent with the original
expiration date. When possible, the period of performance should be
continuous with the prior grant period of performance. The extension or
a renewal of a grant (see Sec. 1260.13(a)) beyond the original
expiration date is a unilateral decision by NASA based upon
availability of funds, continued research relevance, and progress made
by the recipient.
(2) To insure uninterrupted programs, the technical office should
forward to the grant office a completed award package, including a
funded procurement request, technical evaluation of the proposed
budget, and other support documentation, at least 29 days before the
expiration of the funded period. .
[[Page 50351]]
(c) Requests by the recipient to have a grant modified must be in
writing to the grant officer. Prior approvals and changes are detailed
in Sec. 1260.125.
(d) A no-cost extension can be issued by the recipient as detailed
in paragraph (b) of the provision at Sec. 1260.23, Extensions, and
Sec. 1260.125(e). NASA reserves the right to disapprove the extension
request if the requirements set forth at Sec. 1260.125(e)(2) are not
met, including if the extension request is not received ten days prior
to the grant expiration date.
(e) When two or more actions are completed on a single supplement,
the supplement will reflect the effective date of the earliest action.
Sec. 1260.72 Adherence to original budget estimates.
(a) Although NASA assumes no responsibility for budget overruns,
the recipient may spend grant funds without strict adherence to
individual allocations within the proposed budgets, except that
recipients must comply with prior approval requirements for property
and subcontracts as provided in Sec. 1260.27 and Sec. 1260.33.
(b) The revision of budgets and program plans are covered in
Sec. 1260.125.
Sec. 1260.73 Transfers, novations, and change of name agreements.
(a) When the principal investigator changes organizational
affiliation and desires support for the research at a new location,
(i.e., for the grant to be transferred), the grant officer should first
consult with the institution that originally received the grant to
ascertain whether an acceptable replacement principal investigator can
be substituted to complete the research effort. The final decision on
whether an acceptable replacement is available, or that the research
effort should follow the original principal investigator to the new
location, is at the discretion of the NASA technical Officer. If the
decision is made to transfer the grant, the grant at the original
institution must be terminated, and a new proposal must be submitted to
NASA via the appropriate officials of the new institution. Although
such a proposal will be reviewed in the normal manner, every effort
will be made to expedite a decision. Regardless of the action taken on
the new proposal, final reports on the original grant, describing the
scientific progress and expenditure to date, will be required.
(b) Novation and change of name agreements are administrative
actions requiring the involvement of the grant officer. Novations are
legal instruments under which obligations of an organization,
(including the performance of grants), are assumed by a new
organization arising out of a transfer of assets, usually as a result
of a merger or acquisition by the new organization. Change of name
agreements are legal instruments executed by an organization and NASA
that recognizes the legal change of name of the organization without
disturbing the original rights or obligations of the parties.
Procedures for completing novation and change of name agreements are
set forth at FAR subpart 42.12. All novation agreements and change of
name agreements of the recipient, prior to execution, shall be reviewed
by legal counsel for legal sufficiency. It is recommended that the
cognizant ONR office be contacted to determine responsibilities to
complete novation or change of name agreements.
Sec. 1260.74 Property use, disposition, and vesting of title.
(a) Approval for acquisition of property shall conform to the
following procedures:
(1) Grant recipients should supply their own equipment and property
to satisfy research requirements. Providing existing government
equipment or property, or allowing acquisition of property by a grant
recipient, should only be allowed in exceptional circumstances.
(2) In accordance with OMB Circulars A-21 and A-122, prior approval
of property acquisitions is required for special purpose equipment with
a unit cost over $5,000, general purpose equipment with a unit cost
over $5,000, (unless a lower threshold has been established by the
recipient), or coherent systems (as defined in 1260.74(e)) with a value
of over $5,000. The NASA grant officer will retain authority for
approving the expenditure of grant funds for the acquisition of such
equipment. Requests by grant recipients for the acquisition of
equipment shall be supported by written documentation setting forth the
description, purpose, and acquisition value of the equipment, and
include a written certification that the equipment will be used
exclusively for research. (A change in the model number of a prior
approved piece of equipment does not require re-submission for that
item.) NASA grant officers shall not approve the expenditure of grant
funds for the acquisition of equipment unless the recipient's
justification for the equipment demonstrates that the equipment will be
used exclusively for research activities.
(b) Vesting of title to property acquired by the recipient shall
conform to the following procedures:
(1) When a request for the acquisition of property has been
approved, the NASA grant officer, in consultation with the technical
officer, will determine whether NASA has an interest to retain title to
the acquired property for use in future agency programs beyond the
current grant effort. If NASA elects to take title to the equipment
when no longer required for performance of the grant, NASA will notify
the recipient in writing as part of the approval for acquiring the
item. Generally, the notification is made through inclusion of the
special condition at 1260.66, Listing of Reportable Equipment and Other
Property. If the item was requested as part of the original budget, the
award must specify NASA's intention to take title.
(2) Unless there is clear rationale to retain title, as a general
policy NASA encourages titling property to recipients as ``exempt''
when acquired by institutions of higher education, hospitals, and other
non-profit organizations whose primary purpose is the conduct of
scientific research. Unless NASA retains its rights to take title at
the time of approval, equipment purchased with grant funds will be
vested in the recipient as ``exempt'' equipment as set forth at
1260.133(b). The recipient shall have no further obligation or
accountability to the Federal Government for the use or disposition of
``exempt'' property, including reporting requirements.
(3) If NASA elects to take title to recipient acquired property,
the property will be subject to 1260.132(b)(3).
(4) Government titled property will be subject to the provisions
for other Federally owned property as stated in 1260.133.
(c) Equipment with a unit price of $5,000 or less (unless a lower
threshold has been established by the recipient) is properly classified
as ``supplies,'' is not subject to transfer to the Agency, and will be
titled to the recipient in accordance with 1260.135.
(d) Title to Federally-owned property remains with the Government,
and is subject to the following additional requirements:
(1) In accordance with Public Law 94-519, NASA will not acquire
property from other agencies for use on NASA grants.
(2) Government property provided to a grant recipient for use under
a grant will be identified through inclusion of the special condition
at Sec. 1260.66,
[[Page 50352]]
Listing of Reportable Equipment and Other Property.
(3) When Federally-owned property is reported excess by a
recipient, the administrative grant officer will report the equipment
to the center industrial property officer, who will consult with the
technical officer concerning property disposition.
(4) NASA policy encourages the donation of existing, excess NASA
property to nonprofit organizations whose primary purpose is the
conduct of scientific research.
(e) When two or more components are fabricated into a single
coherent system in such a way that the components lose their separate
identities, and their separation would render the system useless for
its original purpose, the components will be considered as integral
parts of a single system. If such a system includes recipient-owned
components, the property will be considered to be exempt. The
requirement for agreement regarding NASA's retention of its option to
take title shall further apply where it is expected that one or more
recipient-acquired components costing $5,000 or less will be fabricated
into a single coherent system costing in excess of $5,000. However, an
item that is used ancillary to a system, without loss of its separate
identity and usefulness, will be considered as a separate item and not
as an integral component of the system.
(f) Property administration and plant clearance for all grants and
cooperative agreements will be delegated to the appropriate ONR office.
(g) NASA grant officers will provide copies of property related
grant documentation to the center industrial property officer and to
the Office of Naval Research (at time of award or modification) when
the NASA program office elects to retain title to an existing item of
Government property, to furnish the property to the recipient in lieu
of donation, or to take title to property acquired by the recipient.
When NASA acquires title to items of recipient acquired equipment or
when NASA transfers an item of Government property to a recipient as
Federally owned property, the NASA grant officer shall notify the
cognizant NASA center financial management officer, the industrial
property officer and Office of Naval Research to ensure proper entries
in financial and property accounting records.
Sec. 1260.75 Summary of report requirements.
(a) Report responsibilities of the grant officer are set forth as
follows:
(1) The grant officer is responsible for submitting the Individual
Procurement Action Report (NF 507) for all grant and cooperative
agreement actions.
(2) The Committee on Academic Science and Engineering (CASE) Report
(NF 1356), for grants and cooperative agreements awarded to educational
institutions, is submitted by the program office with the basic award
procurement request and completed by the grant officer. The grant
officer should initiate an amendment to the NF 1356 whenever the
principal investigator or the technical officer changes.
(b) Intermediate report responsibilities of the recipient are as
follows:
(1) The Federal Cash Transactions Report (SF 272) shall be
submitted by the recipient, in accordance with Sec. 1260.26(a), as a
condition of receiving advance payments. Instructions and answers to
payment questions will be provided by the Financial Management Office
of the Center that issued the grant. (see Sec. 1260.152.)
(2) The annual Inventory Report of Federally Owned Property in
Custody of the Recipient will be submitted by the recipient as required
by Sec. 1260.27(e). The listing shall include information specified in
Sec. 1260.134(f) together with beginning and ending dollar value totals
for the reporting period. Negative reports (i.e., where no property has
been acquired or provided, or where all acquired property has been
titled to the recipient as exempt) are not required. Please note that
any property acquired by the recipient and not titled to the recipient
as exempt, must be reported, even when titled to the recipient as non-
exempt property in accordance with the procedures set forth at
Sec. 1260.134.
(3) A Progress Report shall be submitted in accordance with
Secs. 1260.22 and 1260.151. Recipients are not required to submit more
than the original and two copies. At the request of the technical
officer, technical reports can be submitted as new findings are made
rather than on a predetermined time schedule, by use of the special
condition at Sec. 1260.55, entitled ``Reports Substitution.''
(4) An Educational Activity Report is required annually for
education grants in accordance with Sec. 1260.22. The report is due 60
days prior to the anniversary date of the grant or cooperative
agreement.
(5) A Report of Joint NASA/Recipient Inventions is required for all
grants and cooperative agreements, as applicable, in accordance with
Sec. 1260.28.
(6) A Disclosure of Subject Invention is required for all grants
and cooperative agreements, as applicable, in accordance with
Sec. 1260.28. The reporting of the invention shall be made within two
months after the inventor discloses it to the recipient, and will be
reported on NASA Form 1679 Disclosure of Invention and New Technology
(Including Software) in accordance with the procedures set forth under
Sec. 1260.28.
(7) An Election of Title to a Subject Invention is required for all
grants and cooperative agreements, as applicable, in accordance with
Sec. 1260.28. The notice is due within 1 year after disclosure of the
subject invention if a statutory bar exists, otherwise within 2 years.
(8) A Listing of Subject Inventions is required for all grants and
cooperative agreement, in accordance with Sec. 1260.28. The listing is
due annually.
(9) A Notification of Decision to Forego Patent Protection is
required for all grants and cooperative agreements, as applicable, in
accordance with Sec. 1260.28. The notification is due 30 days before
the expiration of the response period.
(10) A Utilization of Subject Invention Report is required for all
grants and cooperative agreements, as applicable, in accordance with
Sec. 1260.28. The report is due annually.
(11) A Notice of Proposed Transfer of Technology is required for
all grants and cooperative agreements, as applicable, in accordance
with Sec. 1260.30. The notice is required prior to transferring
technology to a foreign firm or institution.
(12) An Annual NASA Form 1018, NASA Property in the Custody of
Contractors, is required for all grants and cooperative agreements with
commercial organizations. The reports are due October 31st of each
year. Negative reports (i.e., no reportable property) are required.
(c) Final report responsibilities of the recipient are as follows:
(1) A Subject Inventions Final Report is required for all grants
and cooperative agreements, as applicable, in accordance with
Sec. 1260.28. The report is due within 90 days after the expiration of
the grant or cooperative agreement.
(2) A properly certified Final Federal Cash Transactions Report, SF
272, is required from the recipient for each grant, in accordance with
Secs. 1260.26(a) and 1260.152. The report is due within 90 days after
the expiration of the grant or cooperative agreement.
(3) A Summary of Research is required for all research grants in
accordance with Sec. 1260.22. Citation of publications resulting from
research, or abstracts thereof, may serve as all or part
[[Page 50353]]
of the Summary of Research. The Summary of Research shall also include
a complete list of all subject inventions (or negative statement)
required to be disclosed that resulted from the work (see the provision
at Sec. 1260.28).
(4) A Final Inventory Report of Federally Owned Property, including
equipment where title was taken by the Government, is required for all
grants and cooperative agreements, where property or equipment has been
provided by the government or acquired by the recipient, Sec. 1260.27.
The report is due within 60 days after the expiration of the grant or
cooperative agreement. Negative reports (i.e., where no property has
been acquired or provided) are required.
(5) A Final Educational Activity Report is required for all
education grants or cooperative agreements. The report is due within 90
days after the expiration of the grant or cooperative agreement.
(6) A Faculty Advisor Survey is required for all training grants.
The report is due from the student's faculty advisor within 60 days
after the expiration of the training grant.
(7) A Summary of Research is required for all training grants. The
report is due from the student within 90 days after the expiration of
the training grant.
(8) An Administrative Report is required for all training grants.
The report is due within 90 days after the expiration of the training
grant.
(9) A Student Evaluation Form is required for all training grants.
The form is due from the student within 90 days after the expiration of
the training grant.
(10) A Final NASA Form 1018, NASA Property in the Custody of
Contractors, is required for all grants and cooperative agreements with
commercial organizations. The report is due within 30 days after the
expiration of the grant or cooperative agreement.
(d) To clarify report requirements to grant and cooperative
agreement recipients, the grant officer will include the ``Required
Publications and Reports'' form (Exhibit G to subpart A of this part
1260) as part of the award document.
Sec. 1260.76 Termination and enforcement.
(a) Suspension or termination of a grant prior to the planned
expiration date must be reserved for exceptional situations that cannot
be handled any other way (see Sec. 1260.160).
(b) The Director, Program Operations Division (Code HS), shall
provide to the General Services Administration information concerning
all NASA debarments, suspensions, determinations of ineligibility, and
voluntary exclusions of persons in accordance with 14 CFR 1265.505.
(c) Remedies for Noncompliance are delineated in Sec. 1260.162.
(d) Failure of the recipient to provide a required report can
result in the Agency and the public being denied information about
grant activities, NASA officials having less information for making
decisions, grant closeout being delayed, and confidence being
undermined as to whether the recipient will meet the requirements under
other grants. Because NASA grants provide for advance payments, a
recipient could be fully paid before final reports are due. At this
point, it is too late to withhold payment on the existing grant.
(e) Consistent with Secs. 1260.122(h) and 1260.162(a), NASA may
suspend advanced payments from recipients that fail to comply with
reporting requirements. To remedy failure to furnish timely reports,
special condition at Sec. 1260.56, Withholding, should be used when
awarding a new grant or modifying an existing grant with non-responsive
organizations.
(1) Special condition at Sec. 1260.56 allows the grant officer to
instruct the Financial Management Office to suspend advanced payments
under an institutions letter of credit pending receipt of the
satisfactorily completed reports required in Sec. 1260.75.
(2) The grant officer may waive the withholding requirement when
the recipient has taken corrective action that makes withholding
unnecessary. To release for payment the amount withheld, grant officers
shall send a memorandum to their Financial Management Office.
(3) The NASA Financial Management Office may require the grant
officer to suspend or terminate a recipients advance payments when the
recipient is not in compliance with requirements for receipt of
advanced payments set forth in the NASA Financial Management Manual.
For example, Advance payments may be suspended when two (2) successive
quarterly reports are late or when more than two (2) reports are late
in a fiscal year.
Sec. 1260.77 Closeout procedures.
Closeout is the process by which NASA determines that all
applicable administrative actions and all required work under the
instrument have been completed by both the recipient and NASA and no
further activity is expected (see Sec. 1260.171).
(a) Closeout will begin within 90 days after the expiration date of
the grant.
(b) Those who are designated to receive NASA reports (except for
CASI, which only acknowledges receipt) must provide certification to
the NASA grant officer, and to ONR when delegated, that the reports
have been received and satisfactorily completed. Electronic
certifications are acceptable. See Secs. 1260.75 and 1260.171(a). The
property certification should indicate that disposal of any remaining
Government property has been made as directed and that NASA has been
compensated for any residual inventory.
(c) When ONR has been delegated closeout and has completed its
actions, the NASA grant officer is to receive from ONR all of the
following:
(1) Certification that all required reports have been received and
approved. However, when a NASA technical officer does not respond to a
third request from ONR to provide a certification for a Summary of
Research, ONR may provide a ``qualified acceptance statement'' in lieu
of the required certification, after providing written notification to
the NASA grant officer.
(2) A DD Form 1593 Contract Administration Completion Record (or
equivalent electronic notification), without supporting or backup
documents, indicating property administration is complete.
(3) An original, signed DD Form 1594 Contract Completion Statement.
(d) A grant is administratively complete and ready for closeout
when:
(1) Property disposition has been completed.
(2) Certifications for all reports have been received.
(3) A DD Form 1594 has been received, when delegated.
(4) Payments have been made for allowable reimbursable costs, and
refunds have been received for any balance of unobligated cash advanced
that is not authorized to be retained for use on other grants (see
Secs. 1260.171 through 1260.173).
(e) Grants will not be closed out if litigation or an appeal is
pending, or when termination action has not been completed.
(f) Records will be retained in accordance with Sec. 1260.153 and
NPG 1441.1, Record Retention Schedules.
Appendix to Subpart A to Part 1260--Listing of Exhibits
Exhibit A--Budget Summary
Exhibit B--Standard Grant and Cooperative Agreement Cover Page
Exhibit C--Provisions
Exhibit D--Federal Demonstration Partnership Terms and Conditions
Exhibit E--Special Conditions for Cooperative Agreements between
NASA and the Commercial Space Centers
[[Page 50354]]
Exhibit F--NASA 1674 Letter of Delegation for the Administration of
Grants and Cooperative Agreements
Exhibit G--Required Publications and Reports
Note: Exhibits are available at NASA Headquarters, Code HC,
Washington, D.C. 20546.
Subpart B--Uniform Administrative Requirements for Grants and
Cooperative Agreements With Institutions of Higher Education,
Hospitals, and Other Non-Profit Organizations
General
Sec. 1260.101 Purpose.
This subpart implements OMB Circular No. A-110 and establishes
uniform administrative requirements for NASA grants and agreements
awarded to institutions of higher education, hospitals, and other non-
profit organizations. NASA shall not impose additional or inconsistent
requirements, except as provided in Secs. 1260.104 and 1260.114 or
unless specifically required by Federal statute or executive order.
Non-profit organizations that implement Federal programs for the States
are also subject to State requirements.
Sec. 1260.102 Definitions.
Accrued expenditures means the charges incurred by the recipient
during a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subcontractors,
and other payees; and
(3) Other amounts becoming owed under programs for which no current
services or performance is required.
Accrued income means the sum of:
(1) Earnings during a given period from services performed by the
recipient, and goods and other tangible property delivered to
purchasers; and
(2) Amounts becoming owed to the recipient for which no current
services or performance is required by the recipient.
Acquisition cost of equipment means the net invoice price of the
equipment, including the cost of modifications, attachments,
accessories, or auxiliary apparatus necessary to make the property
usable for the purpose for which it was acquired. Other charges, such
as the cost of installation, transportation, taxes, duty or protective
in-transit insurance, shall be included or excluded from the unit
acquisition cost in accordance with the recipient's regular accounting
practices. Advance means a payment made by Treasury check or other
appropriate payment mechanism to a recipient upon its request either
before outlays are made by the recipient or through the use of
predetermined payment schedules.
Award means a grant or cooperative agreement that provides support
or stimulation to accomplish a public purpose. Awards include research
grants, training grants, facilities grants, educational grants, and
cooperative agreements in the form of money or property in lieu of
money, by NASA to an eligible recipient. The term does not include:
technical assistance, which provides services instead of money; other
assistance in the form of loans, loan guarantees, interest subsidies,
or insurance; direct payments of any kind to individuals; and,
contracts which are required to be entered into and administered under
procure ment laws and regulations.
Cash contributions means the recipient's cash outlay, including the
outlay of money contributed to the recipient by third parties.
Closeout means the process by which NASA determines that all
applicable administrative actions and all required work of the award
have been completed by the recipient and NASA.
Contract means a procurement contract under an award, and a
procurement subcontract under a recipient's contract.
Cost sharing or matching means that portion of project or program
costs not borne by NASA.
Date of completion means the date on which all work under an award
is completed or the date on the award document, or any supplement or
amendment thereto, on which NASA sponsorship ends.
Disallowed costs means those charges to an award that NASA
determines to be unallowable, in accordance with the applicable Federal
cost principles or other terms and conditions contained in the award.
Equipment means tangible nonexpendable personal property including
exempt property charged directly to the award having a useful life of
more than one year and an acquisition cost of $5,000 or more per unit.
However, consistent with recipient policy, lower limits may be
established.
Excess property means property under the control of any Federal
awarding agency that, as determined by the head thereof, is no longer
required for its needs or the discharge of its responsibilities.
Exempt property means tangible personal property acquired in whole
or in part with Federal funds, where a Federal awarding agency has
statutory authority to vest title in the recipient without further
obligation to the Federal Government. An example of exempt property
authority is contained in the Federal Grant and Cooperative Agreement
Act (31 U.S.C. 6306) for property acquired under an award to conduct
basic or applied research by a non-profit institution of higher
education or non-profit organi zation whose principal purpose is
conducting scientific research.
Federal funds authorized means the total amount of Federal funds
obligated by the Federal Government for use by the recipient. This
amount may include any authorized carryover of unobligated funds from
prior funding periods when permitted by agency regulations or agency
implementing instructions.
Federal share of real property, equipment, or supplies means that
percentage of the property's acquisition costs and any improvement
expenditures paid with Federal funds.
Funding period means the period of time when NASA funding is
available for obligation by the recipient.
Intangible property and debt instruments means, but is not limited
to, trademarks, copyrights, patents and patent applications and such
property as loans, notes and other debt instruments, lease agreements,
stock and other instruments of property ownership, whether considered
tangible or intangible.
NASA means the National Aeronautics and Space Administration
(NASA), including its authorized representatives.
Obligations mean the amounts of orders placed, contracts and grants
awarded, services received and similar transactions during a given
period that require payment by the recipient during the same or a
future period.
Outlays or expenditures means charges made to the project or
program. They may be reported on a cash or accrual basis. For reports
prepared on a cash basis, outlays are the sum of cash disbursements for
direct charges for goods and services, the amount of indirect expense
charged, the value of third party in-kind contributions applied and the
amount of cash advances and payments made to subcontractors. For
reports prepared on an accrual basis, outlays are the sum of cash
disbursements for direct charges for goods and services, the amount of
indirect expense incurred, the value of in-kind contributions applied,
and the net increase (or decrease) in the amounts owed by the recipient
for goods and other property received, for services performed by
employees, contractors, subcontractors and other
[[Page 50355]]
payees and other amounts becoming owed under programs for which no
current services or performance are required.
Personal property means property of any kind except real property.
It may be tangible, having physical existence, or intangible, having no
physical existence, such as copyrights, patents, or securities.
Prior approval means written approval by an authorized official
evidencing prior consent.
Program income means gross income earned by the recipient that is
directly generated by a supported activity or earned as a result of the
award (see exclusions in 1260.124(c) and (f)). Program income includes,
but is not limited to, income from fees for services performed, the use
or rental of real or personal property acquired under federally-funded
projects, the sale of commodities or items fabricated under an award,
license fees and royalties on patents and copyrights, and interest on
loans made with award funds. Interest earned on advances of NASA funds
is not program income. Except as otherwise provided in the regulations
in this subpart or the terms and conditions of the award, program
income does not include the receipt of principal on loans, rebates,
credits, discounts, etc., or interest earned on any of them.
Project costs means all allowable costs, as set forth in the
applicable Federal cost principles, incurred by a recipient and the
value of the contributions made by third parties in accomplishing the
objectives of the award during the project period.
Project period means the period established in the award document
during which NASA sponsorship begins and ends.
Property means, unless otherwise stated, real property, equipment,
intellectual property and debt instruments.
Real property means land, including land improvements, structures
and appurtenances thereto, but excludes movable machinery and
equipment.
Recipient means an organization receiving an award directly from
NASA to carry out a project or program. The term includes public and
private institutions of higher education, public and private hospitals,
and other quasi-public and private non-profit organizations such as,
but not limited to, community action agencies, research institutes,
educational associations, and health centers. The term may include
commercial organizations, foreign or international organizations (such
as agencies of the United Nations) which are recipients,
subcontractors, or contractors or subcontractors of recipients. The
term does not include government-owned contractor-operated facilities
or research centers providing continued support for mission-oriented,
large-scale programs that are government-owned or controlled, or are
designated as federally-funded research and development centers.
Research and development means all research activities, both basic
and applied, and all development activities that are supported at
universities, colleges, and other nonprofit institutions. ``Research''
is defined as a systematic study directed toward fuller scientific
knowledge or understanding of the subject studied. ``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. The term ``research'' also included 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.
Small awards means a grant or cooperative agreement not exceeding
the small purchase threshold.
Subaward means an award of financial assistance in the form of
money, or property in lieu of money, made under an award by a recipient
to an eligible subrecipient or by a subrecipient to a lower tier
subrecipient. The term includes financial assistance when provided by
any legal agreement, even if the agreement is called a contract, but
does not include procurement of goods and services nor does it include
any form of assistance which is excluded from the definition of
``award'' of this section.
Subrecipient means the legal entity to which a subaward is made and
which is accountable to the recipient for the use of the funds
provided. The term may include foreign or international organizations
(such as agencies of the United Nations).
Supplies means all personal property excluding equipment,
intellectual property, and debt instruments as defined in this section,
and inventions of a contractor conceived or first actually reduced to
practice in the performance of work under a funding agreement
(``subject inventions''), as defined in 37 CFR part 401, ``Rights to
Inventions Made by Nonprofit Organizations and Small Business Firms
Under Government Grants, Contracts, and Cooperative Agreements.''
Suspension means an action by NASA that temporarily withdraws NASA
sponsorship under an award, pending corrective action by the recipient
or pending a decision to terminate the award by NASA. Suspension of an
award is a separate action from suspension under Federal agency
regulations implementing Executive Orders 12549 and 12689, ``Debarment
and Suspension.''
Termination means the cancellation of Federal sponsorship, in whole
or in part, under an agreement at any time prior to the date of
completion.
Third party in-kind contributions means the value of non-cash
contributions provided by non-Federal third parties. Third party in-
kind contributions may be in the form of real property, equipment,
supplies and other expendable property, and the value of goods and
services directly benefiting and specifically identifiable to the
project or program.
Unliquidated obligations, for financial reports prepared on a cash
basis, means the amount of obligations incurred by the recipient that
have not been paid. For reports prepared on an accrued expenditure
basis, they represent the amount of obligations incurred by the
recipient for which an outlay has not been recorded.
Unobligated balance means the portion of the funds authorized by
NASA that has not been obligated by the recipient and is determined by
deducting the cumulative obligations from the cumulative funds
authorized.
Unrecovered indirect cost means the difference between the amount
awarded and the amount which could have been awarded under the
recipient's approved negotiated indirect cost rate.
Working capital advance means a procedure whereby funds are
advanced to the recipient to cover its estimated disbursement needs for
a given initial period.
Sec. 1260.103 Effect on other issuances.
For awards subject to this subpart, the requirements of this
subpart apply, except to the extent that any administrative
requirements of codified program regulations, program manuals,
handbooks and other nonregulatory materials are required by statute, or
are authorized in accordance with the deviations provision in
Sec. 1260.104.
Sec. 1260.104 Deviations.
The Office of Management and Budget (OMB) may grant exceptions for
classes of grants or recipients subject to the requirements of this
subpart when exceptions are not prohibited by statute. However, in the
interest of maximum
[[Page 50356]]
uniformity, exceptions from the requirements of this subpart shall be
permitted only in unusual circumstances. NASA may apply more
restrictive requirements to a class of recipients when approved by OMB.
NASA may apply less restrictive requirements when awarding small
awards, except for those requirements which are statutory. Exceptions
on a case-by-case basis may also be made by NASA. See Sec. 1260.6(c).
Sec. 1260.105 Subawards.
Unless sections of this subpart specifically exclude subrecipients
from coverage, the provisions of this subpart shall be applied to
subrecipients performing work under awards if such subrecipients are
institutions of higher education, hospitals or other non-profit
organizations. State and local government subrecipients are subject to
the provisions of 14 CFR part 1273, ``Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments.''
Pre-Award Requirements
Sec. 1260.110 Purpose.
Sections 1260.111 through 1260.117 prescribe forms and instructions
and other pre-award matters to be used in applying for NASA awards.
Sec. 1260.111 Pre-award policies.
(a) Use of grants and cooperative agreements, and contracts. In
each instance, NASA shall decide on the appropriate award instrument
(i.e. grant, cooperative agreement, or contract). The Federal Grant and
Cooperative Agreement Act (31 U.S.C. 6301-08) governs the use of
grants, cooperative agreements and contracts. A grant or cooperative
agreement shall be used only when the principal purpose of a
transaction is to accomplish a public purpose of support or stimulation
authorized by Federal statute. The statutory criterion for choosing
between grants and cooperative agreements is that for the latter,
``substantial involvement is expected between the executive agency and
the State, local government, or other recipient when carrying out the
activity contemplated in the agreement.'' Contracts shall be used when
the principal purpose is acquisition of property or services for the
direct benefit or use of the Federal Government.
(b) Public notice and priority setting. NASA notifies the public of
its intended funding priorities for discretionary grant programs
through Broad Agency Announcements, Cooperative Agreement Notices,
Agency-Wide program announcements, and other approved forms of
announcements.
Sec. 1260.112 Forms for applying for Federal assistance.
(a) NASA shall comply with the applicable report clearance
requirements of 5 CFR part 1320, ``Controlling Paperwork Burdens on the
Public,'' with regard to all forms used by the NASA in place of or as a
supplement to the Standard Form 424 (SF 424) series.
(b) Applicants shall use those forms and instructions prescribed by
NASA in Sec. 1260.10.
Sec. 1260.113 Debarment and suspension.
NASA and recipients shall comply with the nonprocurement debarment
and suspension rule, 14 CFR part 1265, ``Governmentwide Debarment and
Suspension (Nonprocurement) and Governmentwide Requirements for Drug-
Free Workplace (Grants),'' implementing Executive Orders 12549 and
12689, ``Debarment and Suspension.'' This rule restricts contracts with
certain parties that are debarred, suspended or otherwise excluded from
or ineligible for participation in Federal assistance programs or
activities.
Sec. 1260.114 Special award conditions.
If an applicant or recipient has a history of poor performance, is
not financially stable, has a management system that does not meet the
standards prescribed in this subpart, has not conformed to the terms
and conditions of a previous award, or is not otherwise responsible,
NASA may impose additional requirements as needed. Such applicant or
recipient will be notified in writing as to the nature of the
additional requirements, the reason why the additional requirements are
being imposed, the nature of the corrective action needed, the time
allowed for completing the corrective actions, and the method for
requesting reconsideration of the additional requirements imposed. Any
special conditions shall be promptly removed once the conditions that
prompted them have been corrected.
Sec. 1260.115 Metric system of measurement.
The Metric Conversion Act, as amended by the Omnibus Trade and
Competitiveness Act (15 U.S.C. 205) declares that the metric system is
the preferred measurement system for U.S. trade and commerce. The Act
requires each Federal agency to establish a date or dates in
consultation with the Secretary of Commerce, when the metric system of
measurement will be used in the agency's procurements, grants, and
other business-related activities. Metric implementation may take
longer where the use of the system is initially impractical or likely
to cause significant inefficiencies in the accomplishment of federally-
funded activities. NASA follows the provisions of Executive Order
12770, ``Metric Usage in Federal Government Programs.'' NASA's policy
with respect to the metric measurement system is stated in NASA Policy
Directive (NPD) 8010.2, Use of the Metric System of Measurement in NASA
Programs.
Sec. 1260.116 Resource Conservation and Recovery Act (RCRA).
Under the RCRA (Public Law 94-580 codified at 42 U.S.C. 6962), any
State agency or agency of a political subdivision of a State which is
using appropriated Federal funds must comply with Section 6002 of the
RCRA (42 U.S.C. 6962). Section 6002 requires that preference be given
in procurement programs to the purchase of specific products containing
recycled materials identified in guidelines developed by the
Environmental Protection Agency (EPA) (40 CFR parts 247 through 254).
Accordingly, State and local institutions of higher education,
hospitals, and non-profit organizations that receive direct Federal
awards or other Federal funds shall give preference in their
procurement programs funded with Federal funds to the purchase of
recycled products pursuant to the EPA guidelines.
Sec. 1260.117 Certifications and representations.
Unless prohibited by statute or codified regulation, NASA will
allow recipients to submit certain certifications and representations
required by statute, executive order, or regulation on an annual basis,
if the recipients have ongoing and continuing relationships with the
agency. Annual certifications and representations shall be signed by
responsible officials with the authority to ensure recipients'
compliance with the pertinent requirements.
Post-Award Requirements
Financial and Program Management
Sec. 1260.120 Purpose of financial and program management.
Sections 1260.121 through 1260.128 prescribe standards for
financial management systems, methods for making payments and rules
for: satisfying cost sharing and matching requirements, accounting for
program income, budget revision approvals, making audits, determining
allowability
[[Page 50357]]
of cost, and establishing fund availability.
Sec. 1260.121 Standards for financial management systems.
(a) Recipients shall relate financial data to performance data and
develop unit cost information whenever practical. For awards that
support research, it should be noted that it is generally not
appropriate to develop unit cost information.
(b) Recipients' financial management systems shall provide for the
following.
(1) Accurate, current and complete disclosure of the financial
results of each federally-sponsored project or program in accordance
with the reporting requirements set forth in Sec. 1260.152. If NASA
requires reporting on an accrual basis from a recipient that maintains
its records on other than an accrual basis, the recipient shall not be
required to establish an accrual accounting system. These recipients
may develop such accrual data for its reports on the basis of an
analysis of the documentation on hand.
(2) Records that identify adequately the source and application of
funds for federally-sponsored activities. These records shall contain
information pertaining to Federal awards, authorizations, obligations,
unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds,
property and other assets. Recipients shall adequately safeguard all
such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award.
Whenever appropriate, financial information should be related to
performance and unit cost data.
(5) Written procedures to minimize the time elapsing between the
transfer of funds to the recipient from the U.S. Treasury and the
issuance or redemption of checks, warrants or payments by other means
for program purposes by the recipient. To the extent that the
provisions of the Cash Management Improvement Act (CMIA) (Public Law
101-453) govern, payment methods of State agencies, instrumentalities,
and fiscal agents shall be consistent with CMIA Treasury-State
Agreements or the CMIA default procedures codified at 31 CFR part 205,
``Withdrawal of Cash from the Treasury for Advances under Federal Grant
and Other Programs.''
(6) Written procedures for determining the reasonableness,
allocability and allowability of costs in accordance with the
provisions of the applicable Federal cost principles and the terms and
conditions of the award.
(7) Accounting records including cost accounting records that are
supported by source documentation.
(c) Where the Federal Government guarantees or insures the
repayment of money borrowed by the recipient, NASA, at its discretion,
may require adequate bonding and insurance if the bonding and insurance
requirements of the recipient are not deemed adequate to protect the
interest of the Federal Government.
(d) NASA may require adequate fidelity bond coverage where the
recipient lacks sufficient coverage to protect the Federal Government's
interest.
(e) Where bonds are required in the situations described in this
section, the bonds shall be obtained from companies holding
certificates of authority as acceptable sureties, as prescribed in 31
CFR part 223, ``Surety Companies Doing Business with the United
States.''
Sec. 1260.122 Payment.
(a) Payment methods shall minimize the time elapsing between the
transfer of funds from the United States Treasury and the issuance or
redemption of checks, warrants, or payment by other means by the
recipients. Payment methods of State agencies or instrumentalities
shall be consistent with Treasury-State CMIA agreements or default
procedures codified at 31 CFR part 205.
(b)(1) Recipients are to be paid in advance, provided they maintain
or demonstrate the willingness to maintain:
(i) Written procedures that minimize the time elapsing between the
transfer of funds and disbursement by the recipient; and
(ii) Financial management systems that meet the standards for fund
control and accountability as established in Sec. 1260.121.
(2) Cash advances to a recipient organization shall be limited to
the minimum amounts needed and be timed to be in accordance with the
actual, immediate cash requirements of the recipient organization in
carrying out the purpose of the approved program or project. The timing
and amount of cash advances shall be as close as is administratively
feasible to the actual disbursements by the recipient organization for
direct program or project costs and the proportionate share of any
allowable indirect costs.
(c) Whenever possible, advances shall be consolidated to cover
anticipated cash needs for all awards made by NASA to the recipient.
(1) Advance payments will be made by electronic funds transfer.
(2) Advance payment mechanisms are subject to 31 CFR part 205.
(d) [Reserved. Not used by NASA.]
(e) Reimbursement is the preferred method when the requirements in
paragraph (b) of this section cannot be met. NASA may also use this
method on any construction agreement, or if the major portion of the
construction project is accomplished through private market financing
or Federal loans, and the Federal assistance constitutes a minor
portion of the project. When the reimbursement method is used, NASA
shall make payment within 30 days after receipt of the billing, unless
the billing is improper.
(f) If a recipient cannot meet the criteria for advance payments
and NASA has determined that reimbursement is not feasible because the
recipient lacks sufficient working capital, NASA may provide cash on a
working capital advance basis. Under this procedure, NASA shall advance
cash to the recipient to cover its estimated disbursement needs for an
initial period generally geared to the awardee's disbursing cycle.
Thereafter, NASA shall reimburse the recipient for its actual cash
disbursements. The working capital advance method of payment shall not
be used for recipients unwilling or unable to provide timely advances
to their subcontractor to meet the subcontractor's actual cash
disbursements.
(g) To the extent available, recipients shall disburse funds
available from repayments to an interest earned on a revolving fund,
program income, rebates, refunds, contract settlements, audit
recoveries and interest earned on such funds before requesting
additional cash payments.
(h) Unless otherwise required by statute, NASA will not withhold
payments for proper charges made by recipients at any time during the
project period unless the conditions in paragraphs (h)(1) or (2) of
this section apply.
(1) A recipient has failed to comply with the project objectives,
the terms and conditions of the award, or NASA reporting requirements.
(2) The recipient is delinquent in a debt to the United States as
defined in OMB Circular A-129, ``Managing Federal Credit Programs.''
Under such conditions, NASA may, upon reasonable notice, inform the
recipient that payments shall not be made for obligations incurred
after a specified date until the conditions are corrected or the
indebtedness to the Federal Government is liquidated.
[[Page 50358]]
(i) Standards governing the use of banks and other institutions as
depositories of funds advanced under awards are as follows.
(1) Except for situations described in paragraph (i)(2) of this
section, NASA shall not require separate depository accounts for funds
provided to a recipient or establish any eligibility requirements for
depositories for funds provided to a recipient. However, recipients
must be able to account for the receipt, obligation and expenditure of
funds.
(2) Advances of Federal funds shall be deposited and maintained in
insured accounts whenever possible.
(j) Consistent with the national goal of expanding the
opportunities for women-owned and minority-owned business enterprises,
recipients shall be encouraged to use women-owned and minority-owned
banks (a bank which is owned at least 50 percent by women or minority
group members).
(k) Recipients shall maintain advances of Federal funds in interest
bearing accounts, unless the conditions in paragraphs (k)(1), (2), or
(3) of this section apply.
(1) The recipient receives less than $120,000 in Federal awards per
year.
(2) The best reasonably available interest bearing account would
not be expected to earn interest in excess of $250 per year on Federal
cash balances.
(3) The depository would require an average or minimum balance so
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
(l) Interest earned on Federal advances deposited in interest-
bearing accounts in excess of $250 per year shall be remitted annually
to Department of Health and Human Services (DHHS), Payment Management
System, Rockville, MD 20852. Interest amounts up to $250 per year may
be retained by the recipient for administrative expense. In accordance
with 31 CFR part 206, interest should be remitted electronically
through the Automated Clearing House (ACT) to DHHS. Recipients without
this capability may make the remittance by check. In either case, the
remittance should be payable to DHHS and should indicate the
recipient's Entity Identification Number (EIN) and reason, i.e.,
``Interest earned.''
(m) Except as noted elsewhere in this subpart, only the following
forms shall be authorized for the recipients in requesting advances and
reimbursements. Federal agencies shall not require more than an
original and two copies of these forms.
(1) SF-270, Request for Advance or Reimbursement. [Reserved. Not
used by NASA.]
(2) SF-271, Outlay Report and Request for Reimbursement for
Construction Programs. The SF-271 may be used for requesting
reimbursement for NASA construction programs.
Sec. 1260.123 Cost sharing or matching.
(a) All contributions, including cash and third party in-kind,
shall be accepted as part of the recipient's cost sharing or matching
when such contributions meet all of the following criteria.
(1) Are verifiable from the recipient's records.
(2) Are not included as contributions for any other federally-
assisted project or program.
(3) Are necessary and reasonable for proper and efficient
accomplishment of project or program objectives.
(4) Are allowable under the applicable cost principles.
(5) Are not paid by the Federal Government under another award,
except where authorized by Federal statute to be used for cost sharing
or matching.
(6) Are provided for in the approved budget when required by NASA.
(7) Conform to other provisions of this subpart, as applicable.
(b) Unrecovered indirect costs may be included as part of cost
sharing or matching only with the prior approval of NASA.
(c) Values for recipient contributions of services and property
shall be established in accordance with the applicable cost principles.
If NASA authorizes recipients to donate buildings or land for
construction/facilities acquisition projects or long-term use, the
value of the donated property for cost sharing or matching shall be the
lesser of paragraph (c)(1) or (2) of this section.
(1) The certified value of the remaining life of the property
recorded in the recipient's accounting records at the time of donation.
(2) The current fair market value. However, when there is
sufficient justification, NASA may approve the use of the current fair
market value of the donated property, even if it exceeds the certified
value at the time of donation to the project.
(d) Volunteer services furnished by professional and technical
personnel, consultants, and other skilled and unskilled labor may be
counted as cost sharing or matching if the service is an integral and
necessary part of an approved project or program. Rates for volunteer
services shall be consistent with those paid for similar work in the
recipient's organization. In those instances in which the required
skills are not found in the recipient organization, rates shall be
consistent with those paid for similar work in the labor market in
which the recipient competes for the kind of services involved. In
either case, paid fringe benefits that are reasonable, allowable, and
allocable may be included in the valuation.
(e) When an employer other than the recipient furnishes the
services of an employee, these services shall be valued at the
employee's regular rate of pay (plus an amount of fringe benefits that
are reasonable, allowable, and allocable, but exclusive of overhead
costs), provided these services are in the same skill for which the
employee is normally paid.
(f) Donated supplies may include such items as expendable
equipment, office supplies, laboratory supplies or workshop and
classroom supplies. Value assessed to donated supplies included in the
cost sharing or matching share shall be reasonable and shall not exceed
the fair market value of the property at the time of the donation.
(g) The method used for determining cost sharing or matching for
donated equipment, buildings and land for which title passes to the
recipient may differ according to the purpose of the award, if the
conditions in paragraph (g)(1) or (2) of this section apply.
(1) If the purpose of the award is to assist the recipient in the
acquisition of equipment, buildings or land, the total value of the
donated property may be claimed as cost sharing or matching.
(2) If the purpose of the award is to support activities that
require the use of equipment, buildings or land, normally only
depreciation or use charges for equipment and buildings may be made.
However, the full value of equipment or other capital assets and fair
rental charges for land may be allowed, provided that NASA has approved
the charges.
(h) The value of donated property shall be determined in accordance
with the usual accounting policies of the recipient, with the following
qualifications:
(1) The value of donated land and buildings shall not exceed its
fair market value at the time of donation to the recipient as
established by an independent appraiser (e.g., certified real property
appraiser or General Services Administration representative) and
certified by a responsible official of the recipient.
[[Page 50359]]
(2) The value of donated equipment shall not exceed the fair market
value of equipment of the same age and condition at the time of
donation.
(3) The value of donated space shall not exceed the fair rental
value of comparable space as established by an independent appraisal of
comparable space and facilities in a privately-owned building in the
same locality.
(4) The value of loaned equipment shall not exceed its fair rental
value.
(5) The following requirements pertain to the recipient's
supporting records for in-kind contributions from third parties.
(i) Volunteer services shall be documented and, to the extent
feasible, supported by the same methods used by the recipient for its
own employees.
(ii) The basis for determining the valuation for personal service,
material, equipment, buildings and land shall be documented.
Sec. 1260.124 Program income.
(a) The standards set forth in this section shall be used to
account for program income related to projects financed in whole or in
part with Federal funds.
(b) Program income earned during the project period shall be
retained by the recipient and added to funds committed to the project
by NASA and the recipient, and used to further eligible project or
program objectives, unless NASA indicates in the terms and conditions
of the award another alternative to account for program income or the
recipient is subject to special award conditions, as indicated in
1260.114.
(c) Unless program regulations or the terms and conditions of the
award provide otherwise, recipients shall have no obligation to the
Federal Government regarding program income earned after the end of the
project period.
(d) Unless program regulations or the terms and conditions of the
award provide otherwise, costs incident to the generation of program
income may be deducted from gross income to determine program income,
provided these costs have not been charged to the award.
(e) Proceeds from the sale of property shall be handled in
accordance with the requirements of the Property Standards (See
1260.130 through 1260.137).
(f) Unless program regulations or the terms and condition of the
award provide otherwise, recipients shall have no obligation to the
Federal Government with respect to program income earned from license
fees and royalties for copyrighted material, patents, patent
applications, trademarks, and inventions produced under an award.
However, Patent and Trademark Amendments (35 U.S.C. 18) apply to
inventions made under an experimental, developmental, or research
award.
Sec. 1260.125 Revision of budget and program plans.
(a) The budget plan is the financial expression of the project or
program as approved during the award process. It may include either the
Federal and non-Federal share, or only the Federal share, depending
upon requirements in the regulations in this subpart. It shall be
related to performance for program evaluation purposes whenever
appropriate.
(b) Recipients are required to report deviations from budget and
program plans, and request prior approvals for budget and program plan
revisions, in accordance with this section.
(c) For nonconstruction awards, recipients shall request prior
approvals from NASA for the following program or budget related
reasons, except the item in paragraph (c)(5) of this section, which is
waived by NASA.
(1) Change in the scope or the objective of the project or program
(even if there is no associated budget revision requiring prior written
approval).
(2) Change in a key person specified in the application or award
document.
(3) The absence for more than three months, or a 25 percent
reduction in time devoted to the project, by the approved project
director or principal investigator.
(4) The need for additional Federal funding.
(5) The transfer of amounts budgeted for indirect costs to absorb
increases in direct costs, or vice versa.
Notice: NASA waives prior approval of such revisions.
(6) The inclusion of costs that require prior approval in
accordance with OMB Circular A-21, ``Cost Principles for Institutions
of Higher Education;'' OMB Circular A-122, ``Cost Principles for Non-
Profit Organizations;'' 45 CFR part 74 appendix E, ``Principles for
Determining Costs Applicable to Research and Development under Grants
and Contracts with Hospitals;'' or 48 CFR part 31, ``Contract Cost
Principles and Procedures,'' as applicable.
(7) The transfer of funds allotted for training allowances (direct
payment to trainees) to other categories of expense.
(8) Unless described in the application and funded in the approved
awards, the subaward, transfer or contracting out of any work under an
award. This provision does not apply to the purchase of supplies,
material, equipment or general support services.
(d) No other prior approval requirements for specific items will be
imposed unless a deviation has been approved by OMB.
(e) NASA has determined to waive the following cost-related and
administrative prior written approvals otherwise required by OMB
Circulars A-21, A-110 and A-122 to allow recipients to do the
following:.
(1) Incur pre-award costs 90 calendar days prior to award or more
than 90 calendar days with the prior approval of NASA. All pre-award
costs are incurred at the recipient's risk (i.e., NASA is under no
obligation to reimburse such costs if for any reason the recipient does
not receive an award or if the award is less than anticipated and
inadequate to cover such costs).
(2) Initiate a one-time extension of the expiration date of the
award of up to 12 months unless one or more of the following conditions
apply. For one-time extensions, the recipient must notify NASA in
writing with the supporting reasons and revised expiration date at
least 10 days before the expiration date specified in the award. This
one-time extension may not be exercised merely for the purpose of using
unobligated balances.
(i) The terms and conditions of award prohibit the extension.
(ii) The extension requires additional Federal funds.
(iii) The extension involves any change in the approved objectives
or scope of the project.
(3) Unless directed otherwise by the grant officer, carry forward
unobligated balances to subsequent funding periods.
(f) Program regulations may restrict the transfer of funds among
direct cost categories or programs, functions and activities for awards
in which NASA's share of the project exceeds $100,000 and the
cumulative amount of such transfers exceeds or is expected to exceed 10
percent of the total budget as last approved by NASA. However, no
program regulation shall permit a transfer that would cause any Federal
appropriation or part thereof to be used for purposes other than those
consistent with the original intent of the appropriation.
(g) All other changes to nonconstruction budgets, except for the
changes described in paragraph (j) of this section, do not require
prior approval.
(h) For construction awards, recipients shall request prior written
approval promptly from NASA for budget revisions whenever the
[[Page 50360]]
conditions in paragraphs (h)(1), (2) or (3) of this section apply.
(1) The revision results from changes in the scope or the objective
of the project or program.
(2) The need arises for additional Federal funds to complete the
project.
(3) A revision is desired which involves specific costs for which
prior written approval requirements may be imposed consistent with
applicable OMB cost principles listed in Sec. 1260.127.
(i) No other prior approval requirements for specific items will be
imposed unless a deviation has been approved by OMB.
(j) When NASA makes an award that provides support for both
construction and nonconstruction work, NASA requires the recipient to
request prior approval from NASA before making any fund or budget
transfers between the two types of work supported.
(k) For both construction and nonconstruction awards, NASA requires
recipients to notify NASA in writing promptly whenever the amount of
Federal authorized funds is expected to exceed the needs of the
recipient for the project period by more than $5,000 or five percent of
the Federal award, whichever is greater. This notification shall not be
required if an application for additional funding is submitted for a
continuation award.
(l) When requesting approval for budget revisions, recipients shall
use the budget forms that were used in the application unless NASA
indicates a letter of request suffices.
(m) Within 30 calendar days from the date of receipt of the request
for budget revisions, NASA shall review the request and notify the
recipient whether the budget revisions have been approved. If the
revision is still under consideration at the end of 30 calendar days,
NASA shall inform the recipient in writing of the date when the
recipient may expect the decision.
Sec. 1260.126 Non-Federal audits.
(a) Recipients and subrecipients that are institutions of higher
education or other non-profit organizations (including hospitals) shall
be subject to the audit requirements contained in the Single Audit Act
Amendments of 1966 (31 U.S.C. 7501-7507) and revised OMB Circular A-
133, ``Audits of States, Local Governments, and Other Non-Profit
Institutions.''
(b) State and local governments shall be subject to the audit
requirements contained in the Single Audit Act Amendments of 1966 (31
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States,
Local Governments, and Non-Profit Organizations.''
(c) For-profit hospitals not covered by the audit provisions of
revised OMB Circular A-133 shall be subject to the audit requirements
of NASA.
(d) Commercial organizations shall be subject to the audit
requirements of NASA or the prime recipient as incorporated into the
award document.
Sec. 1260.127 Allowable costs.
For each kind of recipient, there is a set of Federal principles
for determining allowable costs. Allowability of costs shall be
determined in accordance with the cost principles applicable to the
entity incurring the costs. Thus, allowability of costs incurred by
State, local or federally-recognized Indian tribal governments is
determined in accordance with the provisions of OMB Circular A-87,
``Cost Principles for State and Local Governments.'' The allowability
of costs incurred by non-profit organizations is determined in
accordance with the provisions of OMB Circular A-122, ``Cost Principles
for Non-Profit Organizations.'' The allowability of costs incurred by
institutions of higher education is determined in accordance with the
provisions of OMB Circular A-21, ``Cost Principles for Educational
Institutions.'' The allowability of costs incurred by hospitals is
determined in accordance with the provisions of appendix E of 45 CFR
part 74, ``Principles for Determining Costs Applicable to Research and
Development Under Grants and Contracts with Hospitals.'' The
allowability of costs incurred by commercial organizations and those
non-profit organizations listed in Attachment C to Circular A-122 is
determined in accordance with the provisions of the Federal Acquisition
Regulation (FAR) at 48 CFR part 31.
Sec. 1260.128 Period of availability of funds.
Where a funding period is specified, a recipient may charge to the
grant only allowable costs resulting from obligations incurred during
the funding period and any pre-award costs authorized by NASA.
Property Standards
Sec. 1260.130 Purpose of property standards.
Sections 1260.131 through 1260.137 set forth uniform standards
governing management and disposition of property furnished by the
Federal Government whose cost was charged to a project supported by a
Federal award. Recipients shall observe these standards under awards
and NASA will not impose additional requirements, unless specifically
required by Federal statute. The recipient may use its own property
management standards and procedures provided it observes the provisions
of Secs. 1260.131 through 1260.137.
Sec. 1260.131 Insurance coverage.
Recipients shall, at a minimum, provide the equivalent insurance
coverage for real property and equipment acquired with Federal funds as
provided for property owned by the recipient. Federally-owned property
need not be insured unless required by the terms and conditions of the
award.
Sec. 1260.132 Real property.
Unless otherwise provided by statute, the requirements concerning
the use and disposition of real property acquired in whole or in part
under awards are as follows:
(a) Title to real property shall vest in the recipient subject to
the condition that the recipient shall use the real property for the
authorized purpose of the project as long as it is needed and shall not
encumber the property without approval of NASA.
(b) The recipient shall obtain written approval by NASA for the use
of real property in other federally-sponsored projects when the
recipient determines that the property is no longer needed for the
purpose of the original project. Use in other projects shall be limited
to those under federally-sponsored projects (i.e., awards) or programs
that have purposes consistent with those authorized for support by
NASA.
(c) When the real property is no longer needed as provided in
paragraphs (a) and (b) of this section, the recipient shall request
disposition instructions from NASA or its successor Federal awarding
agency. NASA shall observe one or more of the following disposition
instructions.
(1) The recipient may be permitted to retain title without further
obligation to the Federal Government after it compensates the Federal
Government for that percentage of the current fair market value of the
property attributable to the Federal participation in the project.
(2) The recipient may be directed to sell the property under
guidelines provided by NASA and pay the Federal Government for that
percentage of the current fair market value of the property
attributable to the Federal participation in the project (after
deducting actual and reasonable selling and fix-up expenses, if any,
from the sales proceeds). When the recipient is authorized or required
to sell the property, proper sales procedures shall be established that
provide for
[[Page 50361]]
competition to the extent practicable and result in the highest
possible return.
(3) The recipient may be directed to transfer title to the property
to the Federal Government or to an eligible third party provided that,
in such cases, the recipient shall be entitled to compensation for its
attributable percentage of the current fair market value of the
property.
Sec. 1260.133 Federally-owned and exempt property.
(a) Federally-owned property.
(1) Title to federally-owned property remains vested in the Federal
Government. Recipients shall submit annually an inventory listing of
federally-owned property in their custody to NASA. Upon completion of
the award or when the property is no longer needed, the recipient shall
report the property to NASA for further Federal agency utilization.
(2) If NASA has no further need for the property, it shall be
declared excess and reported to the General Services Administration,
unless NASA has statutory authority to dispose of the property by
alternative methods (e.g., the authority provided by the Federal
Technology Transfer Act (15 U.S.C. 3710 (I)) to donate research
equipment to educational and non-profit organizations in accordance
with Executive Order 12821, ``Improving Mathematics and Science
Education in Support of the National Education Goals.'') Appropriate
instructions shall be issued to the recipient by NASA.
(b) Exempt property. Under the authority of the Childs Act, 31
U.S.C. 6301 to 6308, NASA has determined, as a general rule, to vest
title to property acquired with Federal funds in the recipient without
further obligation to NASA, including reporting requirements. However,
NASA reserves the right, on a case-by-case basis, to transfer title to
equipment to NASA or to a third party named by NASA when the third
party is eligible under existing statutes. Such equipment will be
initially titled to the recipient upon acquisition in accordance with
Sec. 1260.134, with instructions for title to be transferred to NASA
when no longer needed in performance of the grant or cooperative
agreement, in accordance with Sec. 1260.134(g)(4).
Sec. 1260.134 Equipment.
(a) Title to equipment acquired by a recipient with Federal funds
shall vest in the recipient, subject to conditions of this section.
(b) The recipient shall not use equipment acquired with Federal
funds to provide services to non-Federal outside organizations for a
fee that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute, for as long as the
Federal Government retains an interest in the equipment.
(c) The recipient shall use the equipment in the project or program
for which it was acquired as long as needed, whether or not the project
or program continues to be supported by Federal funds and shall not
encumber the property without approval of NASA. When no longer needed
for the original project or program, the recipient shall use the
equipment in connection with its other federally-sponsored activities,
in the following order of priority:
(1) Activities sponsored by NASA, then
(2) Activities sponsored by other Federal agencies.
(d) During the time that equipment is used on the project or
program for which it was acquired, the recipient shall make it
available for use on other projects or programs if such other use will
not interfere with the work on the project or program for which the
equipment was originally acquired. First preference for such other use
shall be given to other projects or programs sponsored by NASA; second
preference shall be given to projects or programs sponsored by other
Federal agencies. If the equipment is owned by the Federal Government,
use on other activities not sponsored by the Federal Government shall
be permissible if authorized by NASA. User charges shall be treated as
program income.
(e) When acquiring replacement equipment, the recipient may use the
equipment to be replaced as trade-in or sell the equipment and use the
proceeds to offset the costs of the replacement equipment subject to
the approval of NASA.
(f) The recipient's property management standards for equipment
acquired with Federal funds and federally-owned equipment shall include
all of the following:
(1) Equipment records shall be maintained accurately and shall
include the following information.
(i) A description of the equipment.
(ii) Manufacturer's serial number, model number, Federal stock
number, national stock number, or other identification number.
(iii) Source of the equipment, including the award number.
(iv) Whether title vests in the recipient or the Federal
Government.
(v) Acquisition date (or date received, if the equipment was
furnished by the Federal Government) and cost.
(vi) Information from which one can calculate the percentage of
Federal participation in the cost of the equipment (not applicable to
equipment furnished by the Federal Government).
(vii) Location and condition of the equipment and the date the
information was reported.
(viii) Unit acquisition cost.
(ix) Ultimate disposition data, including date of disposal and
sales price or the method used to determine current fair market value
where a recipient compensates NASA for its share.
(2) Equipment owned by the Federal Government shall be identified
to indicate Federal ownership.
(3) A physical inventory of equipment shall be taken and the
results reconciled with the equipment records at least once every two
years. Any differences between quantities determined by the physical
inspection and those shown in the accounting records shall be
investigated to determine the causes of the difference. The recipient
shall, in connection with the inventory, verify the existence, current
utilization, and continued need for the equipment.
(4) A control system shall be in effect to insure adequate
safeguards to prevent loss, damage, or theft of the equipment. Any
loss, damage, or theft of equipment shall be investigated and fully
documented; if the equipment was owned by the Federal Government, the
recipient shall promptly notify NASA.
(5) Adequate maintenance procedures shall be implemented to keep
the equipment in good condition.
(6) Where the recipient is authorized or required to sell the
equipment, proper sales procedures shall be established which provide
for competition to the extent practicable and result in the highest
possible return.
(g) When the recipient no longer needs the equipment, the equipment
may be used for other activities in accordance with the following
standards. For equipment with a current per unit fair market value of
$5,000 or more, the recipient may retain the equipment for other uses
provided that compensation is made to the original Federal awarding
agency or its successor. The amount of compensation shall be computed
by applying the percentage of Federal participation in the cost of the
original project or program to the current fair market value of the
equipment. If the recipient has no need for the equipment, the
recipient shall request disposition instructions from NASA. NASA shall
determine whether the equipment can be used to meet NASA`s
requirements. If no requirement exists within NASA, the
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availability of the equipment shall be reported to the General Services
Administration by NASA to determine whether a requirement for the
equipment exists in other Federal agencies. NASA shall issue
instructions to the recipient no later than 120 calendar days after the
recipient's request and the following procedures shall govern.
(1) If so instructed or if disposition instructions are not issued
within 120 calendar days after the recipient's request, the recipient
shall sell the equipment and reimburse NASA an amount computed by
applying to the sales proceeds the percentage of Federal participation
in the cost of the original project or program. However, the recipient
shall be permitted to deduct and retain from the Federal share $500 or
ten percent of the proceeds, whichever is less, for the recipient's
selling and handling expenses.
(2) If the recipient is instructed to ship the equipment elsewhere,
the recipient shall be reimbursed by the Federal Government by an
amount which is computed by applying the percentage of the recipient's
participation in the cost of the original project or program to the
current fair market value of the equipment, plus any reasonable
shipping or interim storage costs incurred.
(3) If the recipient is instructed to otherwise dispose of the
equipment, the recipient shall be reimbursed by NASA for such costs
incurred in its disposition.
(4) NASA may reserve the right to transfer the title to the Federal
Government or to a third party named by NASA when such third party is
otherwise eligible under existing statutes. Such transfer shall be
subject to the following standards.
(i) The equipment shall be appropriately identified in the award or
otherwise made known to the recipient in writing.
(ii) NASA shall issue disposition instructions within 120 calendar
days after receipt of a final inventory. The final inventory shall list
all equipment acquired with grant funds and federally-owned equipment.
If NASA fails to issue disposition instructions within the 120 calendar
day period, the recipient shall apply the standards of this section, as
appropriate. When NASA exercises its right to take title, the equipment
shall be subject to the provisions for federally-owned equipment.
Sec. 1260.135 Supplies and other expendable property.
(a) Title to supplies and other expendable property shall vest in
the recipient upon acquisition. If there is a residual inventory of
unused supplies exceeding $5,000 in total aggregate value upon
termination or completion of the project or program and the supplies
are not needed for any other federally-sponsored project or program,
the recipient shall retain the supplies for use on non-Federal
sponsored activities or sell them, but shall, in either case,
compensate the Federal Government for its share. The amount of
compensation shall be computed in the same manner as for equipment.
(b) The recipient shall not use supplies acquired with Federal
funds to provide services to non-Federal outside organizations for a
fee that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute as long as the
Federal Government retains an interest in the supplies.
Sec. 1260.136 Intangible property.
(a) The recipient may assert copyright in any work that is
copyrightable and was created, or for which copyright ownership was
purchased, under an award. NASA is granted a royalty-free, nonexclusive
and irrevocable right to reproduce, publish, prepare derivative works
or otherwise use the work for Federal purposes, and to authorize others
to do so.
(b) Recipients are subject to applicable regulations governing
patents and inventions, including government-wide regulations issued by
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements.''
(c) NASA has the right to:
(1) Obtain, reproduce, publish, create derivative works or
otherwise use the data first produced under an award.
(2) Authorize others to receive, reproduce, publish, create
derivative works or otherwise use such data for Federal purposes.
(d) Title to intellectual property and debt instruments acquired
under an award or subcontract 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 NASA. When no longer needed for the originally authorized
purpose, disposition of the intangible property shall occur in
accordance with the provisions of Sec. 1260.134(g).
(e) Due to the substantial involvement on the part of NASA under a
cooperative agreement, intellectual property may be produced by Federal
employees and NASA contractors tasked to perform NASA assigned
activities. Title to intellectual property created under the
cooperative agreement by NASA or its contractors will initially vest
with the creating party. Certain rights may be exchanged with the
recipient.
Sec. 1260.137 Property trust relationship.
Real property, equipment, intangible property and debt instruments
that are acquired or improved with Federal funds shall be held in trust
by the recipient as trustee for the beneficiaries of the project or
program under which the property was acquired or improved. NASA may
require recipients to record liens or other appropriate notices of
record to indicate that personal or real property has been acquired or
improved with Federal funds and that use and disposition conditions
apply to the property.
Procurement Standards
Sec. 1260.140 Purpose of procurement standards.
Sections 1260.141 through 1260.148 set forth standards for use by
recipients in establishing procedures for the procurement of supplies
and other expendable property, equipment, real property and other
services with Federal funds. These standards are furnished to ensure
that such materials and services are obtained in an effective manner
and in compliance with the provisions of applicable Federal statutes
and executive orders. No additional procurement standards or
requirements shall be imposed by NASA upon recipients, unless
specifically required by Federal statute or executive order or approved
in accordance with the deviation procedures of Sec. 1260.6.
Sec. 1260.141 Recipient responsibilities.
The standards contained in this section do not relieve the
recipient of the contractual responsibilities arising under its
contract(s). The recipient is the responsible authority, without
recourse to NASA, regarding the settlement and satisfaction of all
contractual and administrative issues arising out of procurements
entered into in support of an award or other agreement. This includes
disputes, claims, protests of award, source evaluation or other matters
of a contractual nature. Matters concerning violation of statute are to
be referred to such Federal, State or local authority as may have
proper jurisdiction.
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Sec. 1260.142 Codes of conduct.
The recipient shall maintain written standards of conduct governing
the performance of its employees engaged in the award and
administration of contracts. No employee, officer, or agent shall
participate in the selection, award, or administration of a contract
supported by Federal funds if a real or apparent conflict of interest
would be involved. Such a conflict would arise when the employee,
officer, or agent, any member of his or her immediate family, his or
her partner, or an organization which employs or is about to employ any
of the parties indicated herein, has a financial or other interest in
the firm selected for an award. The officers, employees, and agents of
the recipient shall neither solicit nor accept gratuities, favors, or
anything of monetary value from contractors, or parties to
subagreements. However, recipients may set standards for situations in
which the financial interest is not substantial or the gift is an
unsolicited item of nominal value. The standards of conduct shall
provide for disciplinary actions to be applied for violations of such
standards by officers, employees, or agents of the recipient.
Sec. 1260.143 Competition.
All procurement transactions shall be conducted in a manner to
provide, to the maximum extent practical, open and free competition.
The recipient shall be alert to organizational conflicts of interest as
well as noncompetitive practices among contractors that may restrict or
eliminate competition or otherwise restrain trade. In order to ensure
objective contractor performance and eliminate unfair competitive
advantage, contractors that develop or draft specifications,
requirements, statements of work, invitations for bids and/or requests
for proposals shall be excluded from competing for such procurements.
Awards shall be made to the bidder or offeror whose bid or offer is
responsive to the solicitation and is most advantageous to the
recipient, price, quality and other factors considered. Solicitations
shall clearly set forth all requirements that the bidder or offeror
shall fulfill in order for the bid or offer to be evaluated by the
recipient. Any and all bids or offers may be rejected when it is in the
recipient's interest to do so.
Sec. 1260.144 Procurement procedures.
(a) All recipients shall establish written procurement procedures.
These procedures shall provide for, at a minimum, that the conditions
in paragraphs (a)(1), (2) and (3) of this section apply.
(1) Recipients avoid purchasing unnecessary items.
(2) Where appropriate, an analysis is made of lease and purchase
alternatives to determine which would be the most economical and
practical procurement for the Federal Government.
(3) Solicitations for goods and services provide for all of the
following:
(i) A clear and accurate description of the technical requirements
for the material, product or service to be procured. In competitive
procurements, such a description shall not contain features which
unduly restrict competition.
(ii) Requirements which the bidder/offeror must fulfill and all
other factors to be used in evaluating bids or proposals.
(iii) A description, whenever practicable, of technical
requirements in terms of functions to be performed or performance
required, including the range of acceptable characteristics or minimum
acceptable standards.
(iv) The specific features of ``brand name or equal'' descriptions
that bidders are required to meet when such items are included in the
solicitation.
(v) The acceptance, to the extent practicable and economically
feasible, of products and services dimensioned in the metric system of
measurement.
(vi) Preference, to the extent practicable and economically
feasible, for products and services that conserve natural resources and
protect the environment and are energy efficient.
(b) Positive efforts shall be made by recipients to utilize small
businesses, minority-owned firms, and women's business enterprises,
whenever possible. Recipients of NASA awards shall take all of the
following steps to further this goal.
(1) Ensure that small businesses, minority-owned firms, and women's
business enterprises are used to the fullest extent practicable.
(2) Make information on forthcoming opportunities available and
arrange time frames for purchases and contracts to encourage and
facilitate participation by small businesses, minority-owned firms, and
women's business enterprises.
(3) Consider in the contract process whether firms competing for
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
(4) Encourage contracting with consortiums of small businesses,
minority-owned firms and women's business enterprises when a contract
is too large for one of these firms to handle individually.
(5) Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration and the Department
of Commerce's Minority Business Development Agency in the solicitation
and utilization of small businesses, minority-owned firms and women's
business enterprises.
(c) The type of procuring instruments used (e.g., fixed price
contracts, cost reimbursable contracts, purchase orders, and incentive
contracts) shall be determined by the recipient but shall be
appropriate for the particular procurement and for promoting the best
interest of the program or project involved.
The ``cost-plus-a-percentage-of-cost'' or ``percentage of
construction cost'' methods of contracting shall not be used.
(d) Contracts shall be made only with responsible contractors who
possess the potential ability to perform successfully under the terms
and conditions of the proposed procurement. Consideration shall be
given to such matters as contractor integrity, record of past
performance, financial and technical resources or accessibility to
other necessary resources. In certain circumstances, contracts with
certain parties are restricted by 14 CFR part 1265, the implementation
of Executive Orders 12549 and 12689, ``Debarment and Suspension.''
(e) Recipients shall, on request, make available for NASA, pre-
award review and procurement documents, such as request for proposals
or invitations for bids, independent cost estimates, etc., when any of
the following conditions apply.
(1) A recipient's procurement procedures or operation fails to
comply with the procurement standards in NASA's implementation of this
subpart.
(2) The procurement is expected to exceed the small purchase
threshold and is to be awarded without competition or only one bid or
offer is received in response to a solicitation.
(3) The procurement, which is expected to exceed the small purchase
threshold, specifies a ``brand name'' product.
(4) The proposed award over the small purchase threshold is to be
awarded to other than the apparent low bidder under a sealed bid
procurement.
(5) A proposed contract modification changes the scope of a
contract or increases the contract amount by more than the amount of
the small purchase threshold.
Sec. 1260.145 Cost and price analysis.
Some form of cost or price analysis shall be made and documented in
the procurement files in connection with every procurement action.
Price analysis
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may be accomplished in various ways, including the comparison of price
quotations submitted, market prices and similar indicia, together with
discounts. Cost analysis is the review and evaluation of each element
of cost to determine reasonableness, allocability and allowability.
Sec. 1260.146 Procurement records.
Procurement records and files for purchases in excess of the small
purchase threshold shall include the following at a minimum:
(a) Basis for contractor selection,
(b) Justification for lack of competition when competitive bids or
offers are not obtained, and
(c) Basis for award cost or price.
Sec. 1260.147 Contract administration.
A system for contract administration shall be maintained to ensure
contractor conformance with the terms, conditions and specifications of
the contract and to ensure adequate and timely follow up of all
purchases. Recipients shall evaluate contractor performance and
document, as appropriate, whether contractors have met the terms,
conditions and specifications of the contract.
Sec. 1260.148 Contract provisions.
The recipient shall include, in addition to provisions to define a
sound and complete agreement, the following provisions in all
contracts. The following provisions shall also be applied to
subcontracts.
(a) Contracts in excess of the small purchase threshold shall
contain contractual provisions or conditions that allow for
administrative, contractual, or legal remedies in instances in which a
contractor violates or breaches the contract terms, and provide for
such remedial actions as may be appropriate.
(b) All contracts in excess of the small purchase threshold shall
contain suitable provisions for termination by the recipient, including
the manner by which termination shall be effected and the basis for
settlement. In addition, such contracts shall describe conditions under
which the contract may be terminated for default as well as conditions
where the contract may be terminated because of circumstances beyond
the control of the contractor.
(c) Except as otherwise required by statute, an award that requires
the contracting (or subcontracting) for construction or facility
improvements shall provide for the recipient to follow its own
requirements relating to bid guarantees, performance bonds, and payment
bonds unless the construction contract or subcontract exceeds $100,000.
For those contracts or subcontracts exceeding $100,000, NASA may accept
the bonding policy and requirements of the recipient, provided the NASA
has made a determination that the Federal Government's interest is
adequately protected. If such a determination has not been made, the
minimum requirements shall be as follows.
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The ``bid guarantee'' shall consist of a firm commitment
such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder shall, upon acceptance
of his bid, execute such contractual documents as may be required
within the time specified.
(2) A performance bond on the part of the contractor for 100
percent of the contract price. A ``performance bond'' is one executed
in connection with a contract to secure fulfillment of all the
contractor's obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of
the contract price. A ``payment bond'' is one executed in connection
with a contract to assure payment as required by statute of all persons
supplying labor and material in the execution of the work provided for
in the contract.
(4) Where bonds are required in the situations described in this
section, the bonds shall be obtained from companies holding
certificates of authority as acceptable sureties pursuant to 31 CFR
part 223, ``Surety Companies Doing Business with the United States.''
(d) All negotiated contracts (except those for less than the small
purchase threshold) awarded by recipients shall include a provision to
the effect that the recipient, NASA, the Comptroller General of the
United States, or any of their duly authorized representatives, shall
have access to any books, documents, papers and records of the
contractor which are directly pertinent to a specific program for the
purpose of making audits, examinations, excerpts and transcriptions.
(e) All contracts, including small purchases, awarded by recipients
and their contractors shall contain the procurement provisions of
appendix A to this subpart, as applicable.
Reports and Records
Sec. 1260.150 Purpose of reports and records.
Sections 1260.151 through 1260.153 set forth the procedures for
monitoring and reporting on the recipient's financial and program
performance and the necessary standard reporting forms. They also set
forth record retention requirements.
Sec. 1260.151 Monitoring and reporting program performance.
(a) Recipients are responsible for managing and monitoring each
project, program, subcontract, function or activity supported by the
award. Recipients shall monitor subcontracts to ensure subcontractors
have met the audit requirements as delineated in Sec. 1260.126.
(b) The terms and conditions of the award shall prescribe the
frequency with which the performance reports shall be submitted. Except
as provided in Sec. 1260.151(f), performance reports shall not be
required more frequently than quarterly or, less frequently than
annually. Annual reports shall be due 90 calendar days after the grant
year; quarterly or semi-annual reports shall be due 30 days after the
reporting period. NASA may require annual reports before the
anniversary dates of multiple year awards in lieu of these
requirements. The final performance reports are due 90 calendar days
after the expiration or termination of the award.
(c) If inappropriate, a final technical or performance report shall
not be required after completion of the project.
(d) When required, performance reports shall generally contain, for
each award, brief information on each of the following.
(1) A comparison of actual accomplishments with the goals and
objectives established for the period, the findings of the
investigator, or both. Whenever appropriate and the output of programs
or projects can be readily quantified, such quantitative data should be
related to cost data for computation of unit costs.
(2) Reasons why established goals were not met, if appropriate.
(3) Other pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(e) Recipients shall not be required to submit more than the
original and two copies of performance reports.
(f) Recipients shall immediately notify NASA of developments that
have a significant impact on the award-supported activities. Also,
notification shall be given in the case of problems, delays, or adverse
conditions which materially impair the ability to meet the objectives
of the award. This notification shall include a statement of the action
taken or contemplated, and any assistance needed to resolve the
situation.
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(g) NASA may make site visits, as needed.
(h) NASA shall comply with clearance requirements of 5 CFR part
1320 when requesting performance data from recipients.
Sec. 1260.152 Financial reporting.
(a) When funds are advanced to recipients, each recipient is
required to submit the SF 272, Report of Federal Cash Transactions,
and, when necessary, its continuation sheet, SF 272a. NASA uses this
report to monitor cash advanced to the recipient and obtain
disbursement information for each agreement with the recipient.
(b) NASA requires forecasts of the recipient's cash requirements
for each of the four months following the quarter being reported, in
the ``Remarks'' section of the report.
(c) Recipients are required to submit the original of the report to
the Financial Management Office of the NASA Center which issued the
agreement 15 working days following the end of each Federal fiscal
quarter. Copies will be furnished to the appropriate grant officer.
Sec. 1260.153 Retention and access requirements for records.
(a) This section sets forth requirements for record retention and
access to records for awards to recipients. NASA shall not impose any
other record retention or access requirements upon recipients.
(b) Financial records, supporting documents, statistical records,
and all other records pertinent to an award shall be retained for a
period of three years from the date of submission of the final
expenditure report or, for awards that are renewed quarterly or
annually, from the date of the submission of the quarterly or annual
financial report, as authorized by NASA. The only exceptions are the
following.
(1) If any litigation, claim, or audit is started before the
expiration of the three-year period, the records shall be retained
until all litigation, claims or audit findings involving the records
have been resolved and final action taken.
(2) Records for real property and equipment acquired with Federal
funds shall be retained for 3 years after final disposition.
(3) When records are transferred to or maintained by NASA, the 3-
year retention requirement is not applicable to the recipient.
(4) Indirect cost rate proposals, cost allocations plans, etc. as
specified in Sec. 1260.153(g).
(c) Copies of original records may be substituted for the original
records if authorized by NASA.
(d) NASA shall request transfer of certain records to its custody
from recipients when it determines that the records possess long term
retention value. However, in order to avoid duplicate record keeping,
NASA may make arrangements for recipients to retain any records that
are continuously needed for joint use.
(e) NASA, the Inspector General, Comptroller General of the United
States, or any of their duly authorized representatives, have the right
of timely and unrestricted access to any books, documents, papers, or
other records of recipients that are pertinent to the awards, in order
to make audits, examinations, excerpts, transcripts and copies of such
documents. This right also includes timely and reasonable access to a
recipient's personnel for the purpose of interview and discussion
related to such documents. The rights of access in this paragraph are
not limited to the required retention period, but shall last as long as
records are retained.
(f) Unless required by statute, NASA shall place no restrictions on
recipients that limit public access to the records of recipients that
are pertinent to an award, except when NASA can demonstrate that such
records shall be kept confidential and would have been exempted from
disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) if
the records had belonged to NASA.
(g) Indirect cost rate proposals, cost allocations plans, etc.
Paragraphs (g)(1) and (g)(2) of this section apply to the following
types of documents, and their supporting records: Indirect cost rate
computations or proposals, cost allocation plans, and any similar
accounting computations of the rate at which a particular group of
costs is chargeable (such as computer usage chargeback rates or
composite fringe benefit rates).
(1) If submitted for negotiation. If the recipient submits to NASA
or the subrecipient submits to the recipient the proposal, plan, or
other computation to form the basis for negotiation of the rate, then
the 3-year retention period for its supporting records starts on the
date of such submission.
(2) If not submitted for negotiation. If the recipient is not
required to submit to NASA or the subrecipient is not required to
submit to the recipient the proposal, plan, or other computation for
negotiation purposes, then the 3-year retention period for the
proposal, plan, or other computation and its supporting records starts
at the end of the fiscal year (or other accounting period) covered by
the proposal, plan, or other computation.
Termination and Enforcement
Sec. 1260.160 Purpose of termination and enforcement.
Sections 1260.61 and 1260.62 set forth uniform suspension,
termination and enforcement procedures.
Sec. 1260.161 Termination.
(a) Awards may be terminated in whole or in part only if the
conditions in paragraph (a)(1), (2) or (3) of this section apply.
(1) By NASA, if a recipient materially fails to comply with the
terms and conditions of an award.
(2) By NASA with the consent of the recipient, in which case the
two parties shall agree upon the termination conditions, including the
effective date and, in the case of partial termination, the portion to
be terminated.
(3) By the recipient upon sending to NASA written notification
setting forth the reasons for such termination, the effective date,
and, in the case of partial termination, the portion to be terminated.
However, if NASA determines in the case of partial termination that the
reduced or modified portion of the grant will not accomplish the
purposes for which the grant was made, it may terminate the grant in
its entirety under either paragraphs (a)(1) or (2) of this section.
(b) If costs are allowed under an award, the responsibilities of
the recipient referred to in Sec. 1260.171(a), including those for
property management as applicable, shall be considered in the
termination of the award, and provision shall be made for continuing
responsibilities of the recipient after termination, as appropriate.
Sec. 1260.162 Enforcement.
(a) Remedies for noncompliance. If a recipient materially fails to
comply with the terms and conditions of an award, whether stated in a
Federal statute, regulation, assurance, application, or notice of
award, NASA may, in addition to imposing any of the special conditions
outlined in Sec. 1260.114, take one or more of the following actions,
as appropriate in the circumstances.
(1) Temporarily withhold cash payments pending correction of the
deficiency by the recipient or more severe enforcement action by NASA.
(2) Disallow (that is, deny both use of funds and any applicable
matching credit for) all or part of the cost of the activity or action
not in compliance.
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(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards.
(5) Take other remedies that may be legally available.
(b) Hearings and appeals. In taking an enforcement action, NASA
shall provide the recipient an opportunity for hearing, appeal, or
other administrative proceeding to which the recipient is entitled
under any statute or regulation applicable to the action involved.
(c) Effects of suspension and termination. Costs of a recipient
resulting from obligations incurred by the recipient during a
suspension or after termination of an award are not allowable unless
NASA expressly authorizes them in the notice of suspension or
termination or subsequently. Other recipient costs during suspension or
after termination which are necessary and not reasonably avoidable are
allowable if the conditions in paragraph (c)(1) and (2) of this section
apply.
(1) The costs result from obligations which were properly incurred
by the recipient before the effective date of suspension or
termination, are not in anticipation of it, and in the case of a
termination, are noncancellable.
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude a recipient from being subject to
debarment and suspension under Executive Orders 12549 and 12689 and 14
CFR part 1265 (see Sec. 1260.113).
After-the-Award Requirements
Sec. 1260.170 Purpose.
Sections 1260.171 through 1260.173 contain closeout procedures and
other procedures for subsequent disallowances and adjustments.
Sec. 1260.171 Closeout procedures.
(a) Recipients shall submit, within 90 calendar days after the date
of completion of the award, all financial, performance, and other
reports as required by the terms and conditions of the award. NASA may
approve extensions when requested by the recipient.
(b) Unless NASA authorizes an extension, a recipient shall
liquidate all obligations incurred under the award not later than 90
calendar days after the funding period or the date of completion as
specified in the terms and conditions of the award or in agency
implementing instructions.
(c) NASA shall make prompt payments to a recipient for allowable
reimbursable costs under the award being closed out.
(d) The recipient shall promptly refund any balances of unobligated
cash that NASA has advanced or paid and that is not authorized to be
retained by the recipient for use in other projects. OMB Circular A-129
governs unreturned amounts that become delinquent debts.
(e) When authorized by the terms and conditions of the award, NASA
shall make a settlement for any upward or downward adjustments to the
Federal share of costs after closeout reports are received.
(f) The recipient shall account for any real and personal property
acquired with Federal funds or received from the Federal Government in
accordance with Secs. 1260.131 through 1260.137.
(g) In the event a final audit has not been performed prior to the
closeout of an award, NASA shall retain the right to recover an
appropriate amount after fully considering the recommendations on
disallowed costs resulting from the final audit.
Sec. 1260.172 Subsequent adjustments and continuing responsibilities.
(a) The closeout of an award does not affect any of the following.
(1) The right of NASA to disallow costs and recover funds on the
basis of a later audit or other review.
(2) The obligation of the recipient to return any funds due as a
result of later refunds, corrections, or other transactions.
(3) Audit requirements in Sec. 1260.126.
(4) Property management requirements in Secs. 1260.131 through
1260.137.
(5) Records retention as required in Sec. 1260.153.
(b) After closeout of an award, a relationship created under an
award may be modified or ended in whole or in part with the consent of
the NASA and the recipient, provided the responsibilities of the
recipient referred to in Sec. 1260.173(a), including those for property
management as applicable, are considered and provisions made for
continuing responsibilities of the recipient, as appropriate.
Sec. 1260.173 Collection of amounts due.
(a) Any funds paid to a recipient in excess of the amount to which
the recipient is finally determined to be entitled under the terms and
conditions of the award constitute a debt to the Federal Government. If
not paid within a reasonable period after the demand for payment, NASA
may reduce the debt by the provisions of paragraph (a)(1), (2) or (3)
of this section
(1) Making an administrative offset against other requests for
reimbursements.
(2) Withholding advance payments otherwise due to the recipient.
(3) Taking other action permitted by statute.
(b) Except as otherwise provided by law, NASA shall charge interest
on an overdue debt in accordance with 4 CFR chapter II, ``Federal
Claims Collection Standards.''
Appendix A to Subpart B of Part 1260--Contract Provisions
All contracts awarded by a recipient, including small purchases,
shall contain the following provisions as applicable:
1. Equal Employment Opportunity. All contracts shall contain a
provision requiring compliance with Executive Order 11246, ``Equal
Employment Opportunity,'' as amended by Executive Order 11375,
``Amending Executive Order 11246 Relating to Equal Employment
Opportunity,'' and as supplemented by regulations at 41 CFR Part 60,
``Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor.''
2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C.
276c). All contracts in excess of $2,000 for construction or repair
awarded by recipients shall include a provision for compliance with
the Copeland ``Anti-Kickback'' Act (18 U.S.C. 874), as supplemented
by Department of Labor regulations (29 CFR Part 3, ``Contractors and
Subcontractors on Public Building or Public Work Financed in Whole
or in Part by Loans or Grants from the United States''). The Act
provides that each contractor shall be prohibited from inducing, by
any means, any person employed in the construction, completion, or
repair of public work, to give up any part of the compensation to
which he is otherwise entitled. The recipient shall report all
suspected or reported violations to NASA.
3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7). When
required by Federal program legislation, all construction contracts
awarded by the recipients of more than $2,000 shall include a
provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to
a-7) and as supplemented by Department of Labor regulations (29 CFR
Part 5, ``Labor Standards Provisions Applicable to Contracts
Governing Federally Financed and Assisted Construction''). Under
this Act, contractors shall be required to pay wages to laborers and
mechanics at a rate not less than the minimum wages specified in a
wage determination made by the Secretary of Labor. In addition,
contractors shall be required to pay wages not less than once a
week. The recipient shall place a copy of the current prevailing
wage determination issued by the Department of Labor in each
solicitation and the award of a contract shall be conditioned upon
the acceptance of the wage determination. The recipient shall
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report all suspected or reported violations to the NASA.
4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333). Where applicable, all contracts awarded by recipients in
excess of $2,000 for construction contracts and in excess of $2,500
for other contracts that involve the employment of mechanics or
laborers shall include a provision for compliance with Sections 102
and 107 of the Contract Work Hours and Safety Standards Act (40
U.S.C. 327-333), as supplemented by Department of Labor regulations
(29 CFR part 5). Under Subsection 102 of the Act, each contractor
shall be required to compute the wages of every mechanic and laborer
on the basis of a standard work week of 40 hours. Work in excess of
the standard work week is permissible provided that the worker is
compensated at a rate of not less than 1\1/2\ times the basic rate
of pay for all hours worked in excess of 40 hours in the work week.
Section 107 of the Act is applicable to construction work and
provides that no laborer or mechanic shall be required to work in
surroundings or under working conditions which are unsanitary,
hazardous or dangerous. These requirements do not apply to the
purchases of supplies or materials or articles ordinarily available
on the open market, or contracts for transportation or transmission
of intelligence.
5. Rights to Inventions Made Under a Contract or Agreement.
Contracts or agreements for the performance of experimental,
developmental, or research work shall provide for the rights of the
Federal Government and the recipient in any resulting invention in
accordance with 37 CFR part 401, ``Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government
Grants, Contracts and Cooperative Agreements,'' and any implementing
regulations issued by the awarding agency.
6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended.
Contracts of amounts in excess of $100,000 shall contain a provision
that requires the recipient to agree to comply with all applicable
standards, orders or regulations issued pursuant to the Clean Air
Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control
Act as amended (33 U.S.C. 1251 et seq.). Violations shall be
reported to NASA and the Regional Office of the Environmental
Protection Agency (EPA).
7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors
who apply or bid for an award of $100,000 or more shall file the
required certification. Each tier certifies to the tier above that
it will not and has not used Federal appropriated funds to pay any
person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. 1352. Each tier shall also disclose any
lobbying with non-Federal funds that takes place in connection with
obtaining any Federal award. Such disclosures are forwarded from
tier to tier up to the recipient.
8. Debarment and Suspension (Executive Orders 12549 and 12689).
No contract shall be made to parties listed on the General Services
Administration's List of Parties Excluded from Federal Procurement
or Nonprocurement Programs in accordance with Executive Orders 12549
and 12689, ``Debarment and Suspension.'' This list contains the
names of parties debarred, suspended, or otherwise excluded by
agencies, and contractors declared ineligible under statutory or
regulatory authority other than Executive Order 12549. Contractors
with awards that exceed the small purchase threshold shall provide
the required certification regarding its exclusion status and that
of its principal employees.
2. Part 1274 is revised to read as follows:
PART 1274--COOPERATIVE AGREEMENTS WITH COMMERCIAL FIRMS
Subpart A--General
Sec.
1274.101 Purpose.
1274.102 Definitions.
1274.103 Effect on other issuances.
1274.104 Deviations.
1274.105 Approval of Cooperative Agreement Notices (CANs) and
cooperative agreements.
Subpart B--Pre-Award Requirements
1274.201 Purpose.
1274.202 Solicitations and proposals.
1274.203 Intellectual property.
1274.204 Evaluation and selection.
1274.205 Award procedures.
1274.206 Document format and numbering.
1274.207 Distribution of cooperative agreements.
Subpart C--Administration
1274.301 Delegation of administration.
1274.302 Transfers, novations, and change of name agreements.
Subpart D--Government Property
1274.401 Government property.
Subpart E--Procurement Standards
1274.501 Subcontracts.
Subpart F--Reports and Records
1274.601 Retention and access requirements for records.
Subpart G--Suspension or Termination
1274.701 Suspension or termination.
Subpart H--After-the-Award Requirements
1274.801 Purpose.
1274.802 Closeout procedures.
1274.803 Subsequent adjustments and continuing responsibilities.
Subpart I--Provisions and Special Conditions
1274.901 Other provisions and special conditions.
1274.902 Purpose.
1274.903 Responsibilities.
1274.904 Resource sharing requirements.
1274.905 Rights in data.
1274.906 Designation of new technology representative and patent
representative.
1274.907 Disputes.
1274.908 Milestone payments.
1274.909 Term of this agreement.
1274.910 Authority.
1274.911 Patent rights.
1274.912 Patent rights--retention by the Recipient (large
business).
1274.913 Patent rights--retention by the Recipient (small
business).
1274.914 Requests for waiver of rights--large business.
1274.915 Restrictions on sale or transfer of technology to foreign
firms or institutions.
1274.916 Liability and risk of loss.
1274.917 Additional funds.
1274.918 Incremental funding.
1274.919 Cost principles and accounting standards.
1274.920 Responsibilities of the NASA Technical Officer.
1274.921 Publications and reports: Non-proprietary research
results.
1274.922 Suspension or termination.
1274.923 Equipment and other property.
1274.924 Civil rights.
1274.925 Subcontracts.
1274.926 Clean Air-Water Pollution Control Acts.
1274.927 Debarment and suspension and Drug-Free Workplace.
1274.928 Foreign national employee investigative requirements.
1274.929 Restrictions on lobbying.
1274.930 Travel and transportation.
1274.931 Electronic funds transfer payment methods.
1274.932 Retention and examination of records.
1274.933 Summary of recipient reporting responsibilities.
1274.934 Safety.
Appendix to Part 1274--Listing of Exhibits
Exhibit A to Part 1274--Contract Provisions
Exhibit B to Part 1274--Reports
Authority: 31 U.S.C. 6301 to 6208; 42 U.S.C. 2451 et seq.
Subpart A--General
Sec. 1274.101 Purpose.
(a) This part establishes uniform administrative requirements for
NASA cooperative agreements awarded to commercial firms. Cooperative
agreements are ordinarily entered into with commercial firms to--
(1) Support research and development;
(2) Provide technology transfer from the Government to the
recipient; or
(3) Develop a capability among U.S. firms to potentially enhance
U.S. competitiveness.
(b) An award may not be made to a foreign government. Award to
foreign firms is not precluded. The approval of the Associate
Administrator for
[[Page 50368]]
Procurement is required to exclude foreign firms from submitting
proposals.
Sec. 1274.102 Definitions.
Administrator. The Administrator or Deputy Administrator of NASA.
Associate Administrator for Procurement. The head of the Office of
Procurement, NASA Headquarters (Code H).
Cash contributions. The recipient's cash outlay, including the
outlay of money contributed to the recipient by third parties.
Closeout. The process by which NASA determines that all applicable
administrative actions and all required work of the award have been
completed by the recipient and NASA.
Commercial item. The definition in FAR 2.101 is applicable.
Cooperative agreement. As defined by 31 U.S.C. 6305, cooperative
agreements are financial assistance instruments used to stimulate or
support activities for authorized purposes and in which the Government
participates substantially in the performance of the effort. This part
covers only cooperative agreements with commercial firms. Cooperative
agreements with universities and non-profit organizations are covered
by 14 CFR part 1260.
Cost sharing or matching. That portion of project or program costs
not borne by the Federal Government except that the recipient's
contribution may be reimbursable under other Government awards as
allowable IR&D costs pursuant to 48 CFR (NFS) 1831.205-18.
Date of completion. The date on which all work under an award is
completed or the date on the award document, or any supplement or
amendment thereto, on which NASA sponsorship ends.
Days. Calendar days, unless otherwise indicated.
Government furnished equipment. Equipment in the possession of, or
acquired directly by, the Government and subsequently delivered, or
otherwise made available, to a Recipient and equipment procured by the
Recipient with Government funds under a cooperative agreement.
Grant Officer. A Government employee who has been delegated the
authority to negotiate, award, or administer grants or cooperative
agreements. A Contracting Officer may serve as a Grant Officer if
authorized by installation procurement regulations.
Incremental funding. A method of funding a cooperative agreement
where the funds initially allotted to the cooperative agreement are
less than the award amount. Additional funding is added as described in
1274.918.
Recipient. An organization receiving financial assistance under a
cooperative agreement to carry out a project or program. A recipient
may be an individual firm, a consortium, a partnership, etc.
Resource contribution. The total value of resources provided by
either party to the cooperative agreement including both cash and non-
cash contributions.
Support contractor. A NASA contractor performing part or all of the
NASA responsibilities under a cooperative agreement.
Suspension. An action by NASA or the recipient that temporarily
discontinues efforts under an award, pending corrective action or
pending a decision to terminate the award. Suspension of an award is a
separate action from suspension under Federal agency regulations
implementing Executive Orders 12549 and 12689, ``Debarment and
Suspension.''
Technical officer. The official of the cognizant NASA office who is
responsible for monitoring the technical aspects of the work under a
cooperative agreement. A Contracting Officer's Technical Representative
may serve as a Technical Officer.
Termination. The cancellation of a cooperative agreement in whole
or in part, by either party at any time prior to the date of
completion.
Sec. 1274.103 Effect on other issuances.
For awards subject to this subpart, the requirements of this
subpart apply, except to the extent that any administrative
requirements of codified program regulations, program manuals,
handbooks and other nonregulatory materials are required by statute, or
are authorized in accordance with the deviations provision in
Sec. 1274.104.
Sec. 1274.104 Deviations.
(a) The Associate Administrator for Procurement may grant
exceptions for classes of or individual cooperative agreements from the
requirements of this part when exceptions are not prohibited by
statute.
(b) Applicability. A deviation is required for any of the
following:
(1) When a prescribed provision set forth in this part for use
verbatim is modified or omitted.
(2) When a provision is set forth in this part, but not prescribed
for use verbatim, and the installation substitutes a provision which is
inconsistent with the intent, principle, and substance of the
prescribed provision.
(3) When a NASA form or other form is prescribed by this part, and
that form is altered or another form is used in its place.
(4) When limitations, imposed by this part upon the use of a
provision, form, procedure, or any other action, are not adhered to.
(c) Request for deviations. Requests for authority to deviate from
this part will be forwarded to Headquarters, Program Operations
Division (Code HS). Such requests, signed by the Procurement Officer,
shall contain as a minimum:
(1) A full description of the deviation and identification of the
regulatory requirement from which a deviation is sought.
(2) Detailed rationale for the request, including any pertinent
background information.
(3) The name of the recipient and identification of the cooperative
agreement affected, including the dollar value.
(4) A statement as to whether the deviation has been requested
previously, and, if so, circumstances of the previous request(s).
(5) A copy of legal counsel's concurrence or comments.
Sec. 1274.105 Approval of Cooperative Agreement Notices (CANs) and
cooperative agreements.
(a) As soon as possible after the initial decision is made by a
Headquarters program office or Center procurement personnel to use the
CAN process, the cognizant program office or procurement office shall
notify the Associate Administrator for Procurement (Code HS) of the
intent to use a CAN in all cases where the total Government funds to be
awarded in response to CAN proposals is expected to equal or exceed $10
million. All such notifications, as described in this section, shall be
concurred in by the Procurement Officer. This requirement also applies
in those cases where an unsolicited proposal is received and a decision
is made to award a cooperative agreement in which the recipient (or one
or more members of a ``team'' of recipients) is a commercial firm and
the total Government funds are expected to equal or exceed $10 million.
(b) The required notification is to be accomplished by sending an
electronic mail (e-mail) message to the following address at NASA
Headquarters: can@hq.nasa.gov. The notification must include the
following information, as a minimum:
(1) Identification of the cognizant center and program office,
(2) Description of the proposed program for which proposals are to
be solicited,
[[Page 50369]]
(3) Rationale for decision to use a CAN rather than other types of
solicitations,
(4) The amount of Government funding to be available for awards,
(5) Estimate of the number of cooperative agreements to be awarded
as a result of the CAN,
(6) The percentage of cost-sharing to be required,
(7) Tentative schedule for release of CAN and award of cooperative
agreements,
(8) If the term of the cooperative agreement is anticipated to
exceed 3 years and/or if the Government cash contribution is expected
to exceed $20M, address anticipated changes, if any, to the provisions
(see 1274.202(f)), and
(9) If the cooperative agreement is for programs/projects that
provide aerospace products or capabilities, (i.e., provide space and
aeronautics, flight and ground systems, technologies and operations), a
statement that the requirements of NASA Policy Directive (NPD) 7120.4
and NASA Policy Guidance (NPG) 7120.5 have been met. This affirmative
statement will include a specific reference to the signed Program
Commitment Agreement.
(c) Code HS will respond by e-mail message to the sender, with a
copy of the message to the Procurement Officer and the Office of Small
and Disadvantaged Business Utilization, within 5 working days of
receipt of this initial notification. The response will address the
following:
(1) Whether Code HS agrees or disagrees with the appropriateness
for using a CAN for the effort described,
(2) Whether Code HS will require review and approval of the CAN
before its issuance,
(3) Whether Code HS will require review and approval of the
selected offeror's cost sharing arrangement (e.g., cost sharing
percentage; type of contribution (cash, labor, etc.)), and
(4) Whether Code HS will require review and approval of the
resulting cooperative agreement(s).
(d) If a response from Code HS is not received within 5 working
days of notification, the program office or center may proceed with
release of the CAN and award of the cooperative agreements as
described.
Subpart B--Pre-Award Requirements
Sec. 1274.201 Purpose.
Sections 1274.202 through 1274.207 prescribe forms and instructions
and address other pre-award matters.
Sec. 1274.202 Solicitations and proposals.
(a) Consistent with 31 U.S.C. 6301(3), NASA uses competitive
procedures to award cooperative agreements whenever possible. An award
will normally be made as a result of a Cooperative Agreement Notice
(CAN) which envisions a cooperative agreement as the award instrument.
A Commerce Business Daily synopsis or a synopsis on the NASA
Acquisition Internet Service will be used to publicize the CAN.
(b) Unsolicited proposals. (1) An award may be made as a result of
an unsolicited proposal. The unsolicited proposal must evidence a
unique and innovative idea or approach which is not the subject of a
current or anticipated solicitation. When a cooperative agreement is
awarded as a result of an unsolicited proposal, a Commerce Business
Daily synopsis and a synopsis on the NASA Acquisition Internet Service
will be used to provide an opportunity for other firms/consortia to
express an interest in the agreement unless the exception in 48 CFR
(FAR) 5.202(a)(8) applies. Respondents should be given a minimum of
thirty days to respond. If interest is expressed, a decision must be
made to proceed with the award or to issue a solicitation for
competitive proposals.
(2) Prior to an award made as the result of an unsolicited
proposal, the award must be approved by the Procurement Officer if
NASA's total resource contribution is below $5 million. Center Director
approval is required if NASA's total resource contribution is $5
million or more. For Headquarters cooperative agreements, approval by
the Associate Administrator for Procurement is required if NASA's total
resource contribution is $5 million or more.
(c) Cost and payment matters. (1) The expenditure of Government
funds by the Recipient and the allowability of costs recognized as a
resource contribution by the Recipient shall be governed by the FAR
cost principles, 48 CFR part 31. If the Recipient is a consortium which
includes non-commercial entities as members, cost allowability for
those members will be determined as follows:
(i) Allowability of costs incurred by State, local or federally-
recognized Indian tribal governments is determined in accordance with
the provisions of OMB Circular A-87, ``Cost Principles for State and
Local Governments.''
(ii) The allowability of costs incurred by non-profit organizations
is determined in accordance with the provisions of OMB Circular A-122,
``Cost Principles for Non-Profit Organizations.''
(iii) The allowability of costs incurred by institutions of higher
education is determined in accordance with the provisions of OMB
Circular A-21, ``Cost Principles for Educational Institutions.''
(iv) The allowability of costs incurred by hospitals is determined
in accordance with the provisions of Appendix E of 45 CFR Part 74,
``Principles for Determining Costs Applicable to Research and
Development Under Grants and Contracts with Hospitals.'' Recipient's
method for accounting for the expenditure of funds must be consistent
with Generally Accepted Accounting Principles.
(2) Cost sharing. A substantial resource contribution on the part
of the Recipient is required. The Recipient is expected to contribute
at least 50 percent of the total resources required to accomplish the
cooperative agreement. Recipient contributions may be either cash or
non-cash or both. In those cases in which a contribution of less than
50 percent is anticipated from the Recipient, approval of the Associate
Administrator for Procurement (Code HS) is required prior to award. The
request for approval should address the evaluation factor in the
solicitation and how the proposal accomplishes those objectives to such
a degree that a share ratio of less than 50 percent is warranted.
(3) Fixed funding. Cooperative agreements are funded by NASA in a
fixed amount. Payments in fixed amounts will be made by NASA in
accordance with ``Milestone Billings'' which are discussed in paragraph
(c)(4) of this section. If the Recipient completes the final milestone,
final payment is made, and NASA will have completed its financial
responsibilities under the agreement. However, if the cooperative
agreement is terminated prior to achievement of all milestones, NASA's
funding will be limited to milestone payments already made plus NASA's
share of costs required by the Recipient to meet commitments which had
in the judgment of NASA become firm prior to the effective date of
termination and are otherwise appropriate. In no event shall these
additional costs or payment exceed the amount of the next payable
milestone billing amount.
(4) Milestone billings is the method of payment to the Recipient
under cooperative agreements. Performance based milestones are used as
the basis of establishing a set of verifiable milestones for payment
purposes. Each milestone payment shall be established so that the
Government payment is at the same share ratio as the cooperative
[[Page 50370]]
agreement share ratio. If the Recipient is a consortium, the Articles
of Collaboration is required to contain an extensive list of
performance based milestones that the consortium has agreed to.
Generally, payments should not be made more than once monthly; ideally,
payments will be made about every 60 to 90 days but in all cases should
be made on the basis of verifiable, significant events as opposed to
the passage of time. The last payment milestone should be large enough
to ensure that the Recipient completes its responsibilities under the
cooperative agreement (or funds should be reserved for payment until
after completion of the cooperative agreement). The Government
technical officer must verify completion of each milestone to the Grant
Officer as part of the payment process.
(5) Incremental funding. Cooperative agreements may be
incrementally funded subject to the following:
(i) The total value of the NASA cash contribution is $50,000 or
more.
(ii) The period of performance overlaps the succeeding fiscal year.
(iii) The funds are not available to fully fund the cooperative
agreement at the time of award.
(6) Cost sharing. Cost sharing requirements on cooperative
agreements with commercial firms are based on Section 23 of OMB
Circular A-110. Only cash or certain non-cash resources are acceptable
sources for the Recipient contribution to a cooperative agreement.
Acceptable non-cash resources include such items as purchased
equipment, equipment, labor, office space, etc. The actual or imputed
value of intellectual property such as patent rights, data rights,
trade secrets, etc., are not acceptable as sources for the Recipient
contribution. The Government's cost share should fully reflect the
total cost of the cash and non-cash contributions. With respect to the
non-cash contribution, a fully burdened cost estimate of personnel,
facilities, and other expenses should be utilized. It is recognized
that this will be an estimate in some cases, but the cost principles in
Section 9091-5 of the NASA Financial Management Manual should be
adhered to.
(7) Recipients shall not be paid a profit under cooperative
agreements. Profit may be paid by the Recipient to subcontractors, if
the subcontractor is not part of the offering team and the subcontract
is an arms-length relationship.
(8) The Recipient's resource share of the cooperative agreement may
be allocated as part of its IR&D program.
(9) The CAN must provide a description of the non-cash Government
contribution (personnel, equipment, facilities, etc.) as part of the
Government's contribution to the cooperative agreement in addition to
funding. The offeror may propose that additional non-cash Government
resources be provided under two conditions. First, the offeror is
responsible for verifying the availability of the resources and their
suitability for their intended purpose and, second, those resources are
part of the Government contribution (which must be matched by the
Recipient) and paid for directly by the awarding organization.
(d) Consortia as recipients. (1) The use of consortia as Recipients
for cooperative agreements is encouraged. Consortia will tend to bring
to a cooperative agreement a broader range of capabilities and
resources. A consortium is a group of organizations that enter into an
agreement to collaborate for the purposes of the cooperative agreement
with NASA. The agreement to collaborate can take the form of a legal
entity such as a partnership or joint venture but it is not necessary
that such an entity be created. A consortium may be made up of firms
which normally compete for commercial or Government business or may be
made up of firms which perform complementary functions in a given
industry. The inclusion of non-profit or educational institutions,
small businesses, or small disadvantaged businesses in the consortium
could be particularly valuable in ensuring that the results of the
consortium's activities are disseminated.
(2) Key to the success of the cooperative agreement with a
consortium is the consortium's Articles of Collaboration, which is a
definitive description of the roles and responsibilities of the
consortium's members. It should also address to the extent appropriate:
commitments of financial, personnel, facilities and other resources, a
detailed milestone chart of consortium activities, accounting
requirements, subcontracting procedures, disputes, term of the
agreement, insurance and liability issues, internal and external
reporting requirements, management structure of the consortium,
obligations of organizations withdrawing from the consortia, allocation
of data and patent rights among the consortia members, agreements, if
any, to share existing technology and data, the firm which is
responsible for the completion of the consortium's responsibilities
under the cooperative agreement and has the authority to commit the
consortium and receive payments from NASA, employee policy issues, etc.
(3) An outline of the Articles of Collaboration should be required
as part of the proposal and evaluated during the source selection
process.
(e) Metric system of measurement. The Metric Conversion Act, as
amended by the Omnibus Trade and Competitiveness Act (15 U.S.C. 205)
declares that the metric system is the preferred measurement system for
U.S. trade and commerce. NASA's policy with respect to the metric
measurement system is stated in NPD 8010.2, Use of the Metric System of
Measurement in NASA Programs.
(f) The provisions set forth in Sec. 1274.901 are generally
considered appropriate for agreements not exceeding 3 years and/or a
Government cash contribution not exceeding $20M. For cooperative
agreements expected to be longer than 3 years and/or involve a
Government cash contribution exceeding $20M, consideration should be
given to provisions which place additional restrictions on the
recipient in terms of validating performance and accounting for funds
expended.
Sec. 1274.203 Intellectual property.
(a) A cooperative agreement covers the disposition of rights to
intellectual property between NASA and the Recipient. If the Recipient
is a consortium or partnership, rights flowing between multiple
organizations in a consortium must be negotiated separately and
formally documented, preferably in the Articles of Collaboration.
(b) Patent rights clauses are required by statute and regulation.
The clauses exist for Recipients of the Agreement whether they are:
(1) Other than small business or nonprofit organizations (generally
referred to as large businesses) or
(2) Small businesses or nonprofit organizations.
(c) There are five situations in which inventions may arise under a
cooperative agreement: Recipient inventions, subcontractor inventions,
NASA inventions, NASA support contractor inventions, and joint
inventions with Recipient.
(d)(1) Recipient inventions.
(i) A Recipient, if a large business, is subject to Section 305 of
the National Aeronautics and Space Act of 1958 (42 U.S.C. 2457)
relating to property rights in inventions. The term ``invention''
includes any invention, discovery, improvement, or innovation. Title to
an invention made under a cooperative agreement by a large business
Recipient
[[Page 50371]]
initially vests with NASA. The Recipient may request a waiver under the
NASA Patent Waiver Regulations to obtain title to inventions made under
the Agreement. Such a request may be made in advance of the Agreement
(or 30 days thereafter) for all inventions made under the Agreement.
Alternatively, requests may be made on a case by case basis any time an
individual invention is made. Such waivers are liberally and
expeditiously granted after review by NASA's Invention and Contribution
Board and approval by NASA's General Counsel. When a waiver is granted,
any inventions made in the performance of work under the Agreement are
subject to certain reporting, election and filing requirements, a
royalty-free license to the Government, march-in rights, and certain
other reservations.
(ii) A Recipient, if a small business or nonprofit organization,
may elect to retain title to its inventions. The term ``nonprofit
organization'' is defined in 35 U.S.C. 201(i) and includes universities
and other institutions of higher education or an organization of the
type described in Section 501(c)(3) of the Internal Revenue Code (26
U.S.C.). The Government obtains an irrevocable, nonexclusive, royalty-
free license.
(2) Subcontractor inventions.
(i) Large business. If a Recipient enters a subcontract (or similar
arrangement) with a large business organization for experimental,
developmental, research, design or engineering work in support of the
Agreement to be done in the United States, its possessions, or Puerto
Rico, section 305 of the Space Act applies. The clause applicable to
large business organizations is to be used (suitably modified to
identify the parties) in any subcontract. The subcontractor may request
a waiver under the NASA Patent Waiver Regulations to obtain rights to
inventions made under the subcontract just as a large business
Recipient can (see paragraph (d)(1)(i) of this section). It is strongly
recommended that a prospective large business subcontractor contact the
NASA installation Patent Counsel or Intellectual Property Counsel to
assure that the right procedures are followed. Just like the Recipient,
any inventions made in the performance of work under the Agreement are
subject to certain reporting, election and filing requirements, a
royalty-free license to the Government, march-in rights, and certain
other reservations.
(ii) Non-profit organization or small business. In the event the
Recipient enters into a subcontract (or similar arrangement) with a
domestic nonprofit organization or a small business firm for
experimental, developmental, or research work to be performed under the
Agreement, the requirements of 35 U.S.C. 200 et seq. regarding ``Patent
Rights in Inventions Made With Federal Assistance,'' apply. The
subcontractor has the first option to elect title to any inventions
made in the performance of work under the Agreement, subject to
specific reporting, election and filing requirements, a royalty-free
license to the Government, march-in rights, and certain other
reservations that are specifically set forth.
(iii) Work outside the United States. If the Recipient subcontracts
for work to be done outside the United States, its possessions or
Puerto Rico, the NASA installation Patent Counsel or Intellectual
Property Counsel should be contacted for the proper patent rights
clause to use and the procedures to follow.
(iv) Notwithstanding paragraphs (d)(2)(i), (ii) and (iii), and in
recognition of the Recipient's substantial contribution, the Recipient
is authorized, subject to rights of NASA set forth elsewhere in the
Agreement, to:
(A) Acquire by negotiation and mutual agreement rights to a
subcontractor's subject inventions as the Recipient may deem necessary,
or
(B) If unable to reach agreement pursuant to paragraph
(d)(2)(iv)(A) of this section, request that NASA invoke exceptional
circumstances as necessary pursuant to 37 CFR 401.3(a)(2) if the
prospective subcontractor is a small business firm or nonprofit
organization, or for all other organizations, request that such rights
for the Recipient be included as an additional reservation in a waiver
granted pursuant to 14 CFR 1245.1. The exercise of this exception does
not change the flow down of the applicable patent rights clause to
subcontractors. Applicable laws and regulations require that title to
inventions made under a subcontract must initially reside in either the
subcontractor or NASA, not the Recipient. This exception does not
change that. The exception does authorize the Recipient to negotiate
and reach mutual agreement with the subcontractor for the grant-back of
rights. Such grant-back could be an option for an exclusive license or
an assignment, depending on the circumstances.
(3) NASA inventions. NASA will use reasonable efforts to report
inventions made by its employees as a consequence of, or which bear a
direct relation to, the performance of specified NASA activities under
an Agreement. Upon timely request, NASA will use its best efforts to
grant Recipient first option to acquire either an exclusive or
partially-exclusive, revocable, royalty-bearing license, on terms to be
negotiated, for any patent applications and patents covering such
inventions. This exclusive or partially-exclusive license to the
Recipient will be subject to the retention of rights by or on behalf of
the Government for Government purposes.
(4) NASA support contractor inventions. It is preferred that NASA
support contractors be excluded from performing any of NASA's
responsibilities under the Agreement since the rights obtained by a
NASA support contractor could work against the rights needed by the
Recipient. In the event NASA support contractors are tasked to work
under the Agreement and inventions are made by support contractor
employees, the support contractor will normally retain title to its
employee inventions in accordance with 35 U.S.C. 202, 14 CFR part 1245,
and Executive Order 12591. In the event the recipient decides not to
pursue right to title in any such invention and NASA obtains title to
such inventions, upon timely request, NASA will use its best efforts to
grant Recipient first option to acquire either an exclusive or
partially exclusive, revocable, royalty-bearing license, upon terms to
be negotiated, for any patent applications and patents covering such
inventions. This exclusive or partially-exclusive license to the
Recipient will be subject to the retention of rights by or on behalf of
the Government for Government purposes.
(5) Joint inventions. (i) NASA and the Recipient agree to use
reasonable efforts to identify and report to each other any inventions
made jointly between NASA employees (or employees of NASA support
contractors) and employees of Recipient. For large businesses, the
Associate General Counsel (Intellectual Property) may agree that the
United States will refrain, for a specified period, from exercising its
undivided interest in a manner inconsistent with Recipient's commercial
interest. For small business firms and nonprofit organizations, the
Associate General Counsel (Intellectual Property) may agree to assign
or transfer whatever rights NASA may acquire in a subject invention
from its employee to the Recipient as authorized by 35 U.S.C. 202(e).
The grant officer negotiating the Agreement with small business firms
and nonprofit organizations can agree, up front, that NASA will assign
whatever rights it may acquire in a subject invention from its employee
to the small business firm or nonprofit organization. Requests under
this
[[Page 50372]]
paragraph shall be made through the Center Patent Counsel.
(ii) NASA support contractors may be joint inventors. If a NASA
support contractor employee is a joint inventor with a NASA employee,
the same provisions apply as those for NASA Support Contractor
Inventions. The NASA support contractor will retain or obtain
nonexclusive licenses to those inventions in which NASA obtains title.
If a NASA support contractor employee is a joint inventor with a
Recipient employee, the NASA support contractor and Recipient will
become joint owners of those inventions in which they have elected to
retain title or requested and have been granted waiver of title. Where
the NASA support contractor has not elected to retain title or has not
been granted waiver of title, NASA will jointly own the invention with
the Recipient.
(e) Licenses to Recipient(s). (1) Any exclusive or partially
exclusive commercial licenses are to be royalty-bearing consistent with
Government-wide policy in licensing its inventions. It also provides an
opportunity for royalty-sharing with the employee-inventor, consistent
with Government-wide policy under the Federal Technology Transfer Act.
(2) Upon application in compliance with 37 CFR Part 404--Licensing
of Government Owned Inventions, all Recipients shall be granted a
revocable, nonexclusive, royalty-free license in each patent
application filed in any country on a subject invention and any
resulting patent in which the Government obtains title. Because
cooperative agreements are cost sharing cooperative arrangements with a
purpose of benefiting the public by improving the competitiveness of
the Recipient and the Government receives an irrevocable, nonexclusive,
royalty-free license in each Recipient subject invention, it is only
equitable that the Recipient receive, at a minimum, a revocable,
nonexclusive, royalty-free license in NASA inventions and NASA
contractor inventions where NASA has acquired title.
(3) Notice requirements. Once a Recipient has exercised its option
to apply for an exclusive or partially exclusive license, a notice,
identifying the invention and the Recipient, is published in the
Federal Register, providing the public opportunity for filing written
objections for 60 days.
(f) Preference for United States manufacture. Despite any other
provision, the Recipient agrees that any products embodying subject
inventions or produced through the use of subject inventions shall be
manufactured substantially in the United States. The intent of this
provision is to support manufacturing jobs in the United States
regardless of the status of the Recipient as a domestic or foreign
controlled company. However, in individual cases, the requirement to
manufacture substantially in the United States, may be waived by the
Associate Administrator for Procurement (Code HS) upon a showing by the
Recipient that under the circumstances domestic manufacture is not
commercially feasible.
(g) Space Act Agreements. Invention and patent rights in
cooperative agreements must comply with statutory and regulatory
provisions. Where circumstances permit, a Space Act Agreement is
available as an alternative instrument which can be more flexible in
the area of invention and patent rights.
(h) Data rights. Data rights provisions can and should be tailored
to best achieve the needs and objectives of the respective parties
concerned.
(1) The data rights clause at Sec. 1274.905 assumes a substantially
equal cost sharing relationship where collaborative research,
experimental, developmental, engineering, demonstration, or design
activities are to be carried out, such that it is likely that
``proprietary'' information will be developed and/or exchanged under
the agreement. If cost sharing is unequal or no extensive research,
experimental, developmental, engineering, demonstration, or design
activities are likely, a different set of clauses may be appropriate.
(2) The primary question that must be answered when developing data
clauses is what does each party need or intend to do with the data
developed under the agreement. Accordingly, the data rights clauses may
be tailored to fit the circumstances. Where conflicting goals of the
parties result in incompatible data provisions, grant officers for the
Government must recognize that private companies entering into
cooperative agreements bring resources to that relationship and must be
allowed to reap an appropriate benefit for the expenditure of those
resources. However, since serving a public purpose is a major objective
of a cooperative agreement, care must be exercised to ensure the
Recipient is not established as a long term sole source supplier of an
item or service and is not in a position to take unfair advantage of
the results of the cooperative agreement. Therefore, a reasonable time
period (depending on the technology, two to five years after production
of the data) may be established after which the data first produced by
the Recipient in the performance of the agreement will be made public.
(3) Data can be generated from different sources and can have
various restrictions placed on its dissemination. Recipient data
furnished to NASA can exist prior to, or be produced outside of, the
agreement or be produced under the agreement. NASA can also produce
data in carrying out its responsibilities under the agreement. Each of
these areas need to be covered.
(4) For data, including software, first produced by the Recipient
under the agreement, the Recipient may assert copyright. Data exchanged
with a notice showing that the data is protected by copyright must
include appropriate licenses in order for NASA to use the data as
needed.
(5) Recognizing that the dissemination of the results of NASA's
activities is a primary objective of a cooperative agreement, the
parties should specifically delineate what results will be published
and under what conditions. This should be set forth in the clause of
the cooperative agreement entitled ``Publication and Reports.'' Any
such agreement on the publication of results should be stated to take
precedence over any other clause in the cooperative agreement.
(6) In accordance with section 303(b) of the Space Act, any data
first produced by NASA under the agreement which embodies trade secrets
or financial information that would be privileged or confidential if it
had been obtained from a private participant, will be marked with an
appropriate legend and maintained in confidence for an agreed to period
of up to five years (the maximum allowed by law). This does not apply
to data other than that for which there has been agreement regarding
publication or distribution. The period of time during which data first
produced by NASA is maintained in confidence should be consistent with
the period of time determined in accordance with paragraph (h)(2) of
this section, before which data first produced by the Recipient will be
made public. Also, NASA itself may use the marked data (under suitable
protective conditions) for agreed-to purposes.
Sec. 1274.204 Evaluation and selection.
(a) A single technical evaluation factor is typically used for
CANs. That evaluation factor should be one of the following: providing
research and development or technology transfer, enhancing U.S.
competitiveness, or developing a capability among U.S. firms. Award to
foreign firms is not precluded if the evaluation factor is
[[Page 50373]]
satisfied. Subfactors could include such things as fostering U.S.
leadership, potential to advance technologies anticipated to enhance
U.S. competitiveness, timeliness of proposed accomplishments, private
sector commitment to commercialization, identification of specific
potential commercial markets, appropriateness of business risk,
potential for broad impact on the U.S. technology and knowledge base,
level of commitment (contribution of private resources to the project),
appropriateness of team member participation and relationships, (this
subfactor should include consideration of the participation of an
appropriate mix of small business, small disadvantaged business, and
women-owned small business concerns, as well as non-profits and
educational institutions, including historically black colleges and
universities and minority institutions) appropriateness of management
planning, relevant experience, qualifications and depth of management
and technical staff, quality and appropriateness of resources committed
to the project, performance bench marks, technical approach, business
approach/resource sharing, past performance, the articles of
collaboration, etc.
(b) Technical evaluation. (1) Competitive technical proposal
information shall be protected in accordance with 48 CFR (FAR) 15.207,
Handling Proposals and Information. Unsolicited proposals shall be
protected in accordance with 48 CFR (FAR) 15.608, Prohibitions, and 48
CFR (FAR) 15.609, Limited Use of Data.
(i) Selecting Officials and Grant/Contracting Officers are
responsible for protecting sensitive information on the award of a
Grant or Cooperative Agreement and for determining who is authorized to
receive such information. Sensitive information includes: information
contained in proposals; information prepared for NASA's evaluation of
proposals; the rankings of proposals for an award; reports and
evaluations of source selection panels, boards, or advisory councils;
and other information deemed sensitive by the Selecting Official or by
the Grant/Contracting Officer.
(ii) No sensitive information shall be disclosed unless the
Selecting Official or the Grant/Contracting Officer has approved
disclosure based upon an unequivocal ``need-to-know'' and the
individual receiving the information has signed a Non-Disclosure
Certificate (Exhibit E to subpart A of 14 CFR part 1260). All attendees
at formal source selection presentations and briefings shall be
required to sign an Attendance Roster. The attendance rosters and
certificates shall be maintained in official files for a minimum of six
months after award.
(iii) The improper disclosure of sensitive information could result
in criminal prosecution or an adverse action.
(2) The technical officer will evaluate proposals in accordance
with the criteria in the CAN. Proposals selected for award will be
supported by documentation as described in paragraph (c)(1) of this
section. When evaluation results in a proposal not being selected, the
proposer will be notified in accordance with the CAN.
(3) The technical evaluation of proposals may include peer reviews.
Since the business sense of a cooperative agreement proposal is
critical to its success, NASA should reserve the right to utilize
appropriate outside evaluators to assist in the evaluation of such
proposal elements as the business base projections, the market for
proposed products, and/or the impact of anticipated product price
reductions. The use of outside evaluators shall be approved in
accordance with 48 CFR (NFS) 1815.207-70(b). A cover sheet with the
following legend shall be affixed to data provided to outside
evaluators:
Government Notice for Handling Proposals
This proposal shall be used and disclosed for evaluation
purposes only, and a copy of this Government notice shall be applied
to any reproduction or abstract thereof. Any authorized restrictive
notices which the submitter places on this proposal shall also be
strictly complied with.
(4) Unsolicited proposals. Evaluation of unsolicited proposals must
consider whether: the subject of the proposal is available to NASA from
another source without restriction; the proposal closely resembles a
pending competitive acquisition; and the research proposed demonstrates
an innovative and unique method, approach, or concept. Organizations
submitting unaccepted proposals will be notified in writing.
(c) Documentation requirements. For proposals selected for award,
the technical officer will prepare and furnish to the grant officer the
following documentation:
(1) For a competitively selected proposal, a signed selection
statement and technical evaluation based on the evaluation criteria
stated in the solicitation.
(2) For an unsolicited proposal, a justification for acceptance of
an unsolicited proposal (JAUP) prepared by the cognizant technical
office. The JAUP shall be submitted for the approval of the grant
officer after review and concurrence at a level above the technical
officer. The evaluator shall consider the following factors, in
addition to any others appropriate for the particular proposal:
(i) Unique and innovative methods, approaches or concepts
demonstrated by the proposal.
(ii) Overall scientific or technical merits of the proposal.
(iii) The offeror's capabilities, related
experience, facilities, techniques, or unique combinations of these
which are integral factors for achieving the proposal objectives.
(iv) The qualifications, capabilities, and experience of the
proposed key personnel who are critical in achieving the proposal
objectives.
(v) Current, open solicitations under which the unsolicited
proposal could be evaluated.
(d) Cost evaluation. (1) The grant officer and technical team will
determine whether the overall proposed cost of the project is
reasonable and that the Recipient's contribution is valid, verifiable,
and available. Commitments should be obtained and verified to the
extent practical from the offeror or members of the consortia that the
proposed contributions can and will be made as specified in the
proposal or statement of work.
(i) If the Recipient's verified share on a cooperative agreement
equals or exceeds 50 percent of the total cost of the agreement and the
total value of the agreement is less than $5 million, the cost
evaluation of the offeror's proposal should focus on the overall
reasonableness and timing of the proposer's contribution. Cost or
pricing data should not be required and information other than cost or
pricing data (defined in 48 CFR (FAR) 15.403-3) should not normally be
required.
(ii) If the Recipient's share is projected to be less than 50
percent or the total value of the agreement is more than $5 million, a
more in-depth analysis of the proposed costs should be undertaken. Only
information other than cost or pricing data should be required. An
analysis consistent with 48 CFR (FAR) 15.404-1 through 15.404-2 should
be performed.
(2) As part of the evaluation of the cost proposal, the source of
the recipient's contribution should be determined. Each of the cost
elements contributed by the recipient and their amounts should be
identified. If the contribution will consist at least in part of IR&D,
the extent to which the IR&D may be recoverable from Government awards
should be established. This will involve using the estimated Government
[[Page 50374]]
participation rate of the recipient's General and Administrative
indirect cost base for the period of the cooperative agreement. An
analysis consistent with 48 CFR (FAR) 15.404-1 and 15.404-2 should be
performed.
(e) If the cooperative agreement is to be awarded to a consortium,
a completed, formally executed Articles of Collaboration is required
prior to award.
(f) Printing, binding, and duplicating. Proposals for effort which
involve printing, binding, and duplicating in excess of 25,000 pages
are subject to the regulations of the Congressional Joint Committee on
Printing. The technical office will refer such proposals to the
Installation Central Printing Management Officer (ICPMO) to ensure
compliance with NPD 1490.1. The grant officer will be advised in
writing of the results of the ICPMO review.
Sec. 1274.205 Award procedures.
(a) General. Multiple year cooperative agreements are encouraged,
but normally they should not extend beyond two years.
(b) Award above proposed amount. Awards of cooperative agreements
in response to competitive solicitations will not result in providing
more NASA funds or resources than was anticipated in the Recipient's
proposal. If additional funds or resources are deemed necessary, they
will be provided by the Recipient and the Government cost share
percentage will be adjusted downward.
(c) Changes to cooperative agreements. Cost growth or in-scope
changes shall not increase the amount of NASA's contribution.
Additional costs which arise during the performance of the cooperative
agreement are the responsibility of the Recipient. Funding for work
required beyond the scope of the cooperative agreement must be sought
through the submission of a proposal which will be treated as an
unsolicited proposal.
(d) Bilateral award. All cooperative agreements awarded under this
part will be awarded on a bilateral basis.
(e) Certifications and representations. (1) Unless prohibited by
statute or codified regulation, Recipients will be encouraged to submit
certifications and representations required by statute, executive
order, or regulation on an annual basis, if the Recipients have ongoing
and continuing relationships with the agency. Annual certifications and
representations shall be signed by responsible officials with the
authority to ensure Recipients' compliance with the pertinent
requirements.
(2) Civil rights requirements--nondiscrimination in certain
Federally-funded programs. Recipients must furnish assurances of
compliance with civil rights statutes specified in 14 CFR parts 1250
through 1252. Such assurances are not required for each cooperative
agreement, if they have previously been furnished and remain current
and accurate. Certifications to NASA are normally made on NASA Form
1206, which may be obtained from the grant officer. Upon acceptance,
the grant officer will forward assurances to the NASA Office of Equal
Opportunity Programs for recording and retention purposes.
(3) NASA cooperative agreements are subject to the provisions of 14
CFR part 1265, Government-wide Debarment and Suspension
(Nonprocurement) and Government-wide requirements for Drug-Free
Workplace (Grants), unless excepted by Secs. 1265.110 and 1265.610.
(4) Lobbying Certification. A Lobbying Certification in accordance
with 14 CFR part 1271 will be obtained prior to award.
(f) Indemnification under Public Law 85-804 is not authorized for
cooperative agreements.
(g) The standard operating procedures for the Office of Public
Affairs will be followed when notifying Congress and releasing
information to the news media about awards. Grant/Contracting Officers
must approve any exceptions to this policy.
Sec. 1274.206 Document format and numbering.
(a) Formats. Grant officers are authorized to use the format set
forth in Exhibit B to subpart A of 14 CFR part 1260, with minimum
modification, as the standard cooperative agreement cover page for the
award of all cooperative agreements.
(b) Cooperative agreement numbering prior to Integrated Financial
Management Project (IFMP) implementation shall conform to 48 CFR (NFS)
1804.7102-3, except that a NCC prefix will be used in lieu of the NAS
prefix.
(c) There will be a phase-in term for Center implementation of the
IFMP. For Centers using IFMP Performance Purchasing, the following
cooperative agreement numbering system shall be used:
(1) Document Type for cooperative agreements. Cooperative
agreements will use the prefix CO.
(2) Agency Identifier. The Agency identifier NAS shall follow the
document number.
(3) Center Smart Codes. The Center identifier shall follow the
document type:
------------------------------------------------------------------------
Installation Smart code
------------------------------------------------------------------------
Ames Research Center......................... A
Dryden Flight Research Center................ D
Glen Research Center......................... C
Goddard Space Flight Center.................. G
Headquarters................................. H
Johnson Space Center......................... J
Kennedy Space Center......................... K
Langley Research Center...................... L
Marshall Space Flight Center................. M
NASA Management Office-JPL................... P
Stennis Space Center......................... S
------------------------------------------------------------------------
(4) Fiscal Year. The fiscal year shall be represented as two
digits.
(5) Procurement Code. Cooperative Agreements will be identified
using ``A'' as the procurement code.
(6) Serial Numbers. Installations shall number cooperative
agreements with commercial firms serially by fiscal year, within the
same number series used for grants and cooperative agreements with non-
profit organizations. The serial number shall be six digits commencing
with ``000001'' and continuing in succession.
Sec. 1274.207 Distribution of cooperative agreements.
Copies of cooperative agreements and modifications will be provided
to: payment office, technical officer, administrative grant officer
when delegation has been made, NASA Center for Aerospace Information
(CASI), Attn: Document Processing Section, 7121 Standard Drive,
Hanover, MD 21076, and any other appropriate recipient. Copies of the
statement of work, contained in the Recipient's proposal and accepted
by NASA, will be provided to the administrative grant officer and CASI.
The cooperative agreement file will contain a record of the addresses
for distributing agreements and supplements.
Subpart C--Administration
Sec. 1274.301 Delegation of administration.
Normally, cooperative agreements will be administered by the
awarding activity. NASA Form 1678, NASA Technical Officer Delegation
for Cooperative Agreements with Commercial Firms, will be used to
delegate responsibilities to the NASA Technical Officer.
Sec. 1274.302 Transfers, novations, and change of name agreements.
(a) Transfer of cooperative agreements. Novation is the only means
by which a cooperative agreement may
[[Page 50375]]
be transferred from one Recipient to another.
(b) Novation and change of name. All novation agreements and change
of name agreements of the Recipient, prior to execution, shall be
reviewed by NASA legal counsel for legal sufficiency prior to approval.
Subpart D--Government Property
Sec. 1274.401 Government property.
The accomplishment of a cooperative agreement may require the
purchase of equipment for a wide range of purposes. If this equipment
is purchased with Government funds, i.e., as part of the Government
contribution to the cooperative agreement, it becomes Government
property and must be disposed of in accordance with 48 CFR (FAR) part
45 at the conclusion of the cooperative agreement. In some cases, this
may meet the needs of the parties. If, however, the Recipient may need
the equipment to continue commercial efforts following the cooperative
agreement, it should be purchased by the Recipient and included as a
non-cash contribution of the Recipient. In this way, it is not
procured, not even in part, with Government funds and the Government
acquires no ownership interest. Procurement by the Recipient may be
before or during the performance of the cooperative agreement.
Subpart E--Procurement Standards
Sec. 1274.501 Subcontracts.
Recipients (individual firms or consortia) are not authorized to
issue grants or cooperative agreements to subrecipients. All contracts,
including small purchases, awarded by Recipients and their contractors
shall contain the procurement provisions of appendix A to this part, as
applicable and may be subject to approval requirements cited in
Sec. 1274.925.
Subpart F--Reports and Records
Sec. 1274.601 Retention and access requirements for records.
(a) This subpart sets forth requirements for record retention and
access to records for awards to Recipients.
(b) Financial records, supporting documents, statistical records,
and all other records pertinent to an award shall be retained for a
period of three years from the date of submission of the final invoice.
The only exceptions are the following:
(1) If any litigation, claim, or audit is started before the
expiration of the 3-year period, the records shall be retained until
all litigation, claims or audit findings involving the records have
been resolved and final action taken.
(2) Records for real property and equipment acquired with Federal
funds shall be retained for 3 years after final disposition.
(3) When records are transferred to or maintained by NASA, the 3-
year retention requirement is not applicable to the Recipient.
(4) Indirect cost rate proposals, cost allocations plans, etc. as
specified in paragraph (g) of this section.
(c) Copies of original records may be substituted for the original
records if authorized by NASA.
(d) NASA shall request transfer of certain records to its custody
from Recipients when it determines that the records possess long term
retention value. However, in order to avoid duplicate record keeping,
NASA may make arrangements for Recipients to retain any records that
are continuously needed for joint use.
(e) NASA, the Inspector General, Comptroller General of the United
States, or any of their duly authorized representatives, have the right
of timely and unrestricted access to any books, documents, papers, or
other records of Recipients that are pertinent to the awards, in order
to make audits, examinations, excerpts, transcripts and copies of such
documents. This right also includes timely and reasonable access to a
Recipient's personnel for the purpose of interview and discussion
related to such documents. The rights of access in this paragraph are
not limited to the required retention period, but shall last as long as
records are retained.
(f) Unless required by statute, NASA shall not place restrictions
on Recipients that limit public access to the records of Recipients
that are pertinent to an award, except when NASA can demonstrate that
such records shall be kept confidential and would have been exempted
from disclosure pursuant to the Freedom of Information Act (5 U.S.C.
552) if the records had belonged to NASA.
(g) Indirect cost rate proposals, cost allocations plans, etc. This
paragraph applies to the following types of documents, and their
supporting records: indirect cost rate computations or proposals, cost
allocation plans, and any similar accounting computations of the rate
at which a particular group of costs is chargeable (such as computer
usage chargeback rates or composite fringe benefit rates).
(1) If submitted for negotiation. If the Recipient submits to NASA
or the subrecipient submits to the Recipient the proposal, plan, or
other computation to form the basis for negotiation of the rate, then
the 3-year retention period for its supporting records starts on the
date of such submission.
(2) If not submitted for negotiation. If the Recipient is not
required to submit to NASA or the subrecipient is not required to
submit to the Recipient the proposal, plan, or other computation for
negotiation purposes, then the 3-year retention period for the
proposal, plan, or other computation and its supporting records starts
at the end of the fiscal year (or other accounting period) covered by
the proposal, plan, or other computation.
Subpart G--Suspension and Termination
Sec. 1274.701 Suspension or termination.
A cooperative agreement provides both NASA and the Recipient the
ability to terminate the agreement if it is in their best interests to
do so. For example, NASA may terminate the agreement if the Recipient
is not making anticipated technical progress, if the Recipient
materially fails to comply with the terms of the agreement, if the
Recipient materially changes the objective of the agreement, or if
appropriated funds are not available to support the program. Similarly,
the Recipient may terminate the agreement if, for example, technical
progress is not being made, if the firms are shifting their technical
emphasis, or if other technological advances have made the effort
obsolete. NASA or the Recipient may also suspend the cooperative
agreement for a short period of time if an assessment needs to be made
as to whether the agreement should be terminated.
Subpart H--After-the-Award Requirements
Sec. 1274.801 Purpose.
Sections 1274.802 and 1274.803 contain closeout procedures and
other procedures for subsequent disallowances and adjustments.
Sec. 1274.802 Closeout procedures.
(a) Recipients shall submit, within 90 calendar days after the date
of completion of the cooperative agreement, all financial, performance,
and other reports as required by the terms and conditions of the award.
Extensions may be approved when requested by the Recipient.
(b) The Recipient shall account for any real and personal property
acquired with Federal funds or received from the Federal Government in
accordance with subpart D of this part.
[[Page 50376]]
Sec. 1274.803 Subsequent adjustments and continuing responsibilities.
The closeout of an award does not affect any of the following:
(a) Audit requirements in Sec. 1274.932.
(b) Property management requirements in subpart D of this part.
(c) Records retention as required in Sec. 1274.601.
Subpart I--Provisions and Special Conditions
Sec. 1274.901 Provisions and special conditions.
The provisions set forth in this subpart are to be incorporated in
and made a part of all cooperative agreements. The provisions at
Secs. 1274.902 through 1274.909 and the provision at 1274.933 are to be
incorporated in full text substantially as stated in this subpart. The
provisions at Secs. 1274.910 through 1274.932 and Sec. 1274.934 will be
incorporated by reference in an enclosure to each cooperative
agreement. For inclusion of provisions in subcontracts, see subpart E,
Procurement Standards, of this part.
Sec. 1274.902 Purpose.
Purpose (Date)
The purpose of this cooperative agreement is to conduct a shared
resource project that will lead to ____________. This cooperative
agreement will advance the technology developments and research
which have been performed on ____________. The specific objective is
to ____________. This work will culminate in ____________.
[End of provision]
Sec. 1274.903 Responsibilities.
Responsibilities (Date)
(a) This cooperative agreement will include substantial
NASA participation during performance of the effort. NASA and
the Recipient agree to the following Responsibilities, a statement
of cooperative interactions to occur during the performance of this
effort. NASA and the Recipient shall exert all reasonable efforts to
fulfill the responsibilities stated below.
(b) NASA Responsibilities. The following NASA responsibilities
are hereby set forth with anticipated start and ending dates, as
appropriate:
Responsibility Start End
(c) Recipient Responsibilities. The Recipient shall be
responsible for particular aspects of project performance as set
forth in the technical proposal dated ____________, attached hereto
(or Statement of Work dated ____________, attached hereto.). The
following responsibilities are hereby set forth with anticipated
start and ending dates, as appropriate:
Responsibility Start End
(d) Since NASA contractors may obtain certain intellectual
property rights arising from work for NASA in support of this
agreement, NASA will inform Recipient whenever NASA intends to use
NASA contractors to perform technical engineering services in
support of this agreement.
[End of provision]
Sec. 1274.904 Resource sharing requirements.
Resource Sharing Requirements (Date)
(a) NASA and the Recipient will share in providing the resources
necessary to perform the agreement. NASA funding and non-cash
contributions (personnel, equipment, facilities, etc.) and the
dollar value of the Recipient's cash and/or non-cash contribution
will be on a ____ (NASA) ____ (Recipient) basis. Criteria and
procedures for the allowability and allocability of cash and non-
cash contributions shall be governed by Section 23, ``Cost Sharing
or Matching,'' of OMB Circular A-110. The ``applicable federal cost
principles'' cited in OMB Circular A-110 shall be determined in
accordance with 1274.919.
(d) The Recipient's share shall not be charged to the Government
under this agreement or under any other contract, grant, or
cooperative agreement, except to the extent that the Recipient's
contribution may be allowable IR&D costs pursuant to 48 CFR (NFS)
1831.205-18.
[End of provision]
Sec. 1274.905 Rights in Data.
(As noted in Sec. 1274.203(h)(1), the following provision assumes a
substantially equal cost sharing relationship where collaborative
research, experimental, developmental, engineering, demonstration, or
design activities are to be carried out, such that it is likely that
``proprietary'' information will be developed and/or exchanged under
the agreement. If cost sharing is unequal or no extensive research,
experimental, developmental, engineering, demonstration, or design
activities are likely, a different set of provisions may be
appropriate.
The grant officer is expected to complete and/or select the
appropriate bracketed language under the provision for those paragraphs
dealing with data first produced under the cooperative agreement. In
addition, the grant officer may, in consultation with the Center's
Patent or Intellectual Property Counsel, tailor the provision to fit
the particular circumstances of the program and/or the recipient's need
to protect specific proprietary information.)
Rights in Data (Date)
(a) Definitions.
``Data,'' means recorded information, regardless of form, the
media on which it may be recorded, or the method of recording. The
term includes, but is not limited to, data of a scientific or
technical nature, computer software and documentation thereof, and
data comprising commercial and financial information.
(b) Data Categories.
(1) General: Data exchanged between NASA and Recipient under
this cooperative agreement will be exchanged without restriction as
to its disclosure, use or duplication except as otherwise provided
below in this provision.
(2) Background Data: In the event it is necessary for Recipient
to furnish NASA with Data which existed prior to, or produced
outside of, this cooperative agreement, and such Data embodies trade
secrets or comprises commercial or financial information which is
privileged or confidential, and such Data is so identified with a
suitable notice or legend, the Data will be maintained in confidence
and disclosed and used by NASA and its contractors (under suitable
protective conditions) only for the purpose of carrying out NASA's
responsibilities under this cooperative agreement. Upon completion
of activities under this agreement, such Data will be disposed of as
requested by Recipient.
(3) Data first produced by Recipient: In the event Data first
produced by Recipient in carrying out Recipient's responsibilities
under this cooperative agreement is furnished to NASA, and Recipient
considers such Data to embody trade secrets or to comprise
commercial or financial information which is privileged or
confidential, and such Data is so identified with a suitable notice
or legend, the Data will be maintained in confidence for a period of
[insert ``two'' to ``five''] years after development of the data and
be disclosed and used by [``NASA'' or ``the Government,'' as
appropriate] and its contractors (under suitable protective
conditions) only for [insert appropriate purpose; for example:
experimental; evaluation; research; development, etc.] by or on
behalf of [``NASA'' or ``the Government'' as appropriate] during
that period. In order that [''NASA'' or the ``Government'', as
appropriate] and its contractors may exercise the right to use such
Data for the purposes designated above, NASA, upon request to the
Recipient, shall have the right to review and request delivery of
Data first produced by Recipient. Delivery shall be made within a
time period specified by NASA.
(4) Data first produced by NASA: As to Data first produced by
NASA in carrying out NASA's responsibilities under this cooperative
agreement and which Data would embody trade secrets or would
comprise commercial or financial information that is privileged or
confidential if it had been obtained from the Recipient, will be
marked with an appropriate legend and maintained in confidence for
an agreed to period of up to ( ) years [INSERT A PERIOD UP TO 5
YEARS] after development of the information, with the express
understanding that during the aforesaid period such Data may be
disclosed and used (under suitable protective conditions) by or on
behalf of the Government for Government purposes only, and
thereafter for any purpose whatsoever without restriction on
disclosure and use. Recipient agrees not to disclose such Data to
any third party without NASA's written approval until the
aforementioned restricted period expires.
[[Page 50377]]
(5) Copyright.
(i) In the event Data is exchanged with a notice indicating the
Data is protected under copyright as a published copyrighted work,
or are deposited for registration as a published work in the U.S.
Copyright Office, the following paid-up licenses shall apply:
(A) If it is indicated on the Data that the Data existed prior
to, or was produced outside of, this agreement, the receiving party
and others acting on its behalf, may reproduce, distribute, and
prepare derivative works for the purpose of carrying out the
receiving party's responsibilities under this cooperative agreement;
and
(B) If the furnished Data does not contain the indication of
paragraph (b)(5)(i)(A) of this section, it will be assumed that the
Data was first produced under this agreement, and the receiving
party and others acting on its behalf, shall be granted a paid up,
nonexclusive, irrevocable, world-wide license for all such Data to
reproduce, distribute copies to the public, prepare derivative
works, distribute copies to the public, and perform publicly and
display publicly, by or on behalf of the receiving party. For Data
that is computer software, the right to distribute shall be limited
to potential users in the United States.
(ii) When claim is made to copyright, the Recipient shall affix
the applicable copyright notice of 17 U.S.C. 401 or 402 and
acknowledgment of Government sponsorship to the data when and if the
data are delivered to the Government.
(6) Oral and visual information. If information which the
Recipient considers to embody trade secrets or to comprise
commercial or financial information which is privileged or
confidential is disclosed orally or visually to NASA, such
information must be reduced to tangible, recorded form (i.e.,
converted into Data as defined herein), identified and marked with a
suitable notice or legend, and furnished to NASA within 10 days
after such oral or visual disclosure, or NASA shall have no duty to
limit or restrict, and shall not incur any liability for, any
disclosure and use of such information.
(7) Disclaimer of Liability. Notwithstanding the above, NASA
shall not be restricted in, nor incur any liability for, the
disclosure and use of:
(i) Data not identified with a suitable notice or legend as set
in paragraph (b)(2) of this section; nor
(ii) Information contained in any Data for which disclosure and
use is restricted under paragraphs (b)(2) or (3) of this section, if
such information is or becomes generally known without breach of the
above, is known to or is generated by NASA independently of carrying
out responsibilities under this agreement, is rightfully received
from a third party without restriction, or is included in data which
Participant has, or is required to furnish to the U.S. Government
without restriction on disclosure and use.
(c) Marking of Data. Any Data delivered under this cooperative
agreement, by NASA or the Recipient, shall be marked with a suitable
notice or legend indicating the data was generated under this
cooperative agreement.
(d) Lower Tier Agreements. The Recipient shall include this
provision, suitably modified to identify the parties, in all
subcontracts or lower tier agreements, regardless of tier, for
experimental, developmental, or research work.
[End of provision]
Sec. 1274.906 Designation of new technology representative and patent
representative.
Designation of New Technology Representative and Patent Representative
(Date)
(a) For purposes of administration of the clause of this
cooperative agreement entitled ``PATENT RIGHTS--RETENTION BY THE
CONTRACTOR (LARGE BUSINESS)'' or ``PATENT RIGHTS--RETENTION BY THE
CONTRACTOR (SMALL BUSINESS)'' the following named representatives
are hereby designated by the Grant Officer to administer such
clause:
------------------------------------------------------------------------
Title Office code Address
------------------------------------------------------------------------
New Technology Representative
Patent Representative
------------------------------------------------------------------------
(b) Reports of reportable items, and disclosure of subject
inventions, interim reports, final reports, utilization reports, and
other reports required by the clause, as well as any correspondence
with respect to such matters, should be directed to the New
Technology Representative unless transmitted in response to
correspondence or request from the Patent Representative. Inquiries
or requests regarding disposition of rights, election of rights, or
related matters should be directed to the Patent Representative.
This clause shall be included in any subcontract hereunder requiring
``PATENT RIGHTS--RETENTION BY THE CONTRACTOR (LARGE BUSINESS)''
clause or ``PATENT RIGHTS--RETENTION BY THE CONTRACTOR (SMALL
BUSINESS)'' clause, unless otherwise authorized or directed by the
Grant Officer. The respective responsibilities and authorities of
the above-named representatives are set forth in 48 CFR (NFS)
1827.305-70.
[End of provision]
Sec. 1274.907 Disputes.
Disputes (Date)
(a) In the event that a disagreement arises, representatives of
the parties shall enter into discussions in good faith and in a
timely and cooperative manner to seek resolution. If these
discussions do not result in a satisfactory solution, the aggrieved
party may seek a decision from the Dispute Resolution Official under
paragraph (b) of this provision. This request must be presented no
more than (3) three months after the events giving rise to the
disagreement have occurred.
(b) The aggrieved party may submit a written request for a
decision to the ____________ [Suggest this be the Center Ombudsman],
who is designated as the Dispute Resolution Official. The written
request shall include a statement of the relevant facts, a
discussion of the unresolved issues, and a specification of the
clarification, relief, or remedy sought.
A copy of this written request and all accompanying materials
must be provided to the other party at the same time. The other
party shall submit a written position on the matters in dispute
within thirty (30) calendar days after receiving this notification
that a decision has been requested. The Dispute Resolution Official
shall conduct a review of the matters in dispute and render a
decision in writing within thirty (30) calendar days of receipt of
such written position.
[End of provision]
Sec. 1274.908 Milestone payments.
Milestone Payments (Date)
(a) By submission of the first invoice, the Recipient is
certifying that it has an established accounting system which
complies with generally accepted accounting principles, with the
requirements of this agreement, and that appropriate arrangements
have been made for receiving, distributing, and accounting for
Federal funds received under this agreement.
(b) Payments will be made upon the following milestones: [The
schedule for payments may be based upon the Recipient's completion
of specific tasks, submission of specified reports, or whatever is
appropriate.]
Date Payment Milestone Amount
(c) Upon submission by the Recipient of invoices in accordance
with the provisions of the agreement and upon certification by NASA
of completion of the payable milestone, the grant officer shall
authorize payment.
(d) A payment milestone may be successfully completed in advance
of the date appearing in paragraph (b) of this section. However,
payment shall not be made prior to that date without the written
consent of the Grant Officer.
(e) The Recipient is not entitled to partial payment for partial
completion of a payment milestone.
(f) Unless approved by the grant officer, all preceding payment
milestones must be completed before payment can be made for the next
payment milestone.
(g) Invoices hereunder shall be submitted in the original and
five copies to the Grant Officer for certification.
[End of provision]
Sec. 1274.909 Term of this agreement.
Term of this Agreement (Date)
The agreement commences on the effective date indicated on the
attached cover sheet and continues until the expiration date
indicated on the attached cover sheet unless terminated by either
party. If all resources are expended prior to the expiration date of
the agreement, the parties have no obligation to continue
performance and may elect to cease at that point. The parties may
extend the expiration date if additional time is required to
complete the milestones at no increase in Government resources.
Provisions of this Agreement, which, by their express terms or by
necessary implication, apply for periods of time other than that
specified as the agreement term, shall be given effect,
notwithstanding expiration of the term of the agreement.
[[Page 50378]]
[End of provision]
Sec. 1274.910 Authority.
Authority (Date)
This is a cooperative agreement as defined in 31 U.S.C. 6305
(the Chiles Act) and is entered into pursuant to the authority of 42
U.S.C. 2451, et seq. (the Space Act).
[End of provision]
Sec. 1274.911 Patent rights.
Patent Rights (Date)
(a) Definitions.
(1) ``Administrator'' means the Administrator or Deputy
Administrator of NASA.
(2) ``Invention'' means any invention or discovery which is or
may be patentable or otherwise protectable under Title 35 of the
United States Code.
(3) ``Made'' when used in relation to any invention means the
conception or first actual reduction to practice such invention.
(4) ``Nonprofit organization'' means a domestic university or
other institution of higher education or an organization of the type
described in Section 501(c)(3) of the Internal Revenue Code of 1954
(26 U.S.C. 501(c)) and exempt from taxation under Section 501(a) of
the Internal Revenue Code (26 U.S.C. 501(a)), or any domestic
nonprofit scientific or educational organization qualified under a
State nonprofit organization statute.
(5) ``Practical application'' means to manufacture, in the case of
a composition or product; to practice, in the case of a process or
method; or to operate, in the case of a machine or system; and, in each
case, under such conditions as to establish that the invention is being
utilized and that its benefits are, to the extent permitted by law or
Government regulations, available to the public on reasonable terms.
(6) ``Recipient'' means:
(i) the signatory Recipient party or parties or;
(ii) the Consortium, where a Consortium has been formed for
carrying out Recipient responsibilities under this agreement.
(7) ``Small Business Firm'' means a domestic small business
concern as defined at 15 U.S.C. 632 and implementing regulations
(see 13 CFR 121.401 through 121.413) of the Administrator of the
Small Business Administration.
(8) ``Subject Invention'' means any invention of a Recipient
and/or Government employee conceived or first actually reduced to
practice in the performance of work under this Agreement.
(b) Allocation of Principal Rights.
(1) Recipient Inventions. For other than Small Business Firm or
Nonprofit organization Recipients, the ``PATENT RIGHTS--RETENTION BY
RECIPIENT (LARGE BUSINESS)'' provision applies. For Small Business
Firm and Nonprofit organization Recipients, the ``PATENT RIGHTS--
RETENTION BY RECIPIENT (SMALL BUSINESS)'' provision applies.
(2) NASA Inventions. NASA will use reasonable efforts to report
inventions made by NASA employees as a consequence of, or which bear
a direct relation to, the performance of specified NASA activities
under this cooperative agreement and, upon timely request, NASA will
use its best efforts to grant the Recipient or designated Consortium
Member (if applicable) the first option to acquire either an
exclusive or partially exclusive, revocable, royalty-bearing
license, on terms to be subsequently negotiated, for any patent
applications and patents covering such inventions, and subject to
the license reserved in paragraph (b)(5)(i) of this section. Upon
application in compliance with 37 CFR part 404--Licensing of
Government Owned Inventions, the Recipient or each Consortium Member
(if applicable), shall be granted a revocable, nonexclusive,
royalty-free license in each patent application filed in any country
on a subject invention and any resulting patent in which the
Government acquires title. Each nonexclusive license may extend to
subsidiaries and affiliates, if any, within the corporate structure
of the licensee and includes the right to grant sublicenses of the
same scope to the extent the licensee was legally obligated to do so
at the time the cooperative agreement was signed.
(3) NASA Contractor Inventions. In the event NASA contractors
are tasked to perform work in support of specified NASA activities
under this cooperative agreement and inventions are made by
contractor employees, the recipient will normally retain title to
its employee inventions in accordance with 35 U.S.C. 202, 14 CFR
part 1245, and Executive Order 12591. In the event the recipient
decides not to pursue right to title in any such invention and NASA
obtains title to such inventions, NASA will use reasonable efforts
to report such inventions and, upon timely request, NASA will use
its best efforts to grant the Recipient or designated Consortium
Member (if applicable) the first option to acquire either an
exclusive or partially exclusive, revocable, royalty-bearing
license, upon terms to be subsequently negotiated, for any patent
applications and patents covering such inventions, and subject to
the license reserved in paragraph (b)(5)(ii) of this section. Upon
application in compliance with 37 CFR part 404--Licensing of
Government Owned Inventions, the Recipient or each Consortium Member
(if applicable), shall be granted a revocable, nonexclusive,
royalty-free license in each patent application filed in any country
on a subject invention and any resulting patent in which the
Government acquires title. Each nonexclusive license may extend to
subsidiaries and affiliates, if any, within the corporate structure
of the licensee and includes the right to grant sublicenses of the
same scope to the extent the licensee was legally obligated to do so
at the time the cooperative agreement was signed.
(4) Joint NASA and Recipient Inventions. NASA and Recipient
agree to use reasonable efforts to identify and report to each other
any inventions made jointly between NASA employees (or employees of
NASA contractors) and employees of Recipient.
(i) For other than small business firms and nonprofit
organizations the Administrator may agree that the United States
will refrain from exercising its undivided interest in a manner
inconsistent with Recipient's commercial interest and to cooperate
with Recipient in obtaining patent protection on its undivided
interest on any waived inventions subject, however, to the condition
that Recipient makes its best efforts to bring the invention to the
point of practical application at the earliest practicable time. In
the event that the Administrator determines that such efforts are
not undertaken, the Administrator may void NASA's agreement to
refrain from exercising its undivided interest and grant licenses
for the practice of the invention so as to further its development.
In the event that the Administrator decides to void NASA's agreement
to refrain from exercising its undivided interest and grant licenses
for this reason, notice shall be given to the Inventions and
Contributions Board as to why such action should not be taken.
Either alternative will be subject to the applicable license or
licenses reserved in paragraph (b)(5) of this section.
(ii) For small business firms and nonprofit organization, NASA
may assign or transfer whatever rights it may acquire in a subject
invention from its employee to the Recipient as authorized by 35
U.S.C. 202(e).
(5) Minimum rights reserved by the Government. Any license or
assignment granted Recipient pursuant to paragraphs (b)(2), (3), or
(4) of this section will be subject to the reservation of the
following licenses:
(i) As to inventions made solely or jointly by NASA employees,
the irrevocable, royalty-free right of the Government of the United
States to practice and have practiced the invention by or on behalf
of the United States; and
(ii) As to inventions made solely by, or jointly with, employees
of NASA contractors, the rights in the Government of the United
States as set forth in paragraph (b)(5)(i) of this section, as well
as the revocable, nonexclusive, royalty-free license in the
contractor as set forth in 14 CFR 1245.108.
(6) Preference for United States manufacture. The Recipient
agrees that any products embodying subject inventions or produced
through the use of subject inventions shall be manufactured
substantially in the United States. However, in individual cases,
the requirement to manufacture substantially in the United States
may be waived by the Associate Administrator for Procurement (Code
HS) with the concurrence of the Associate General Counsel for
Intellectual Property upon a showing by the Recipient that under the
circumstances domestic manufacture is not commercially feasible.
(7) Work performed by the Recipient under this cooperative
agreement is considered undertaken to carry out a public purpose of
support and/or stimulation rather than for acquiring property or
services for the direct benefit or use of the Government.
Accordingly, such work by the Recipient is not considered ``by or
for the United States'' and the Government assumes no liability for
infringement by the Recipient under 28 U.S.C. 1498.
[[Page 50379]]
[End of provision]
Sec. 1274.912 Patent rights--retention by the Recipient (large
business).
Patent Rights--Retention by the Recipient (Large Business) (Date)
(a) Definitions.
(1) Administrator, as used in this clause, means the
Administrator of the National Aeronautics and Space Administration
(NASA) or duly authorized representative.
(2) Invention, as used in this clause, means any invention or
discovery which is or may be patentable or otherwise protectable
under Title 35 of the United States Code.
(3) Made, as used in relation to any invention, means the
conception or first actual reduction to practice such invention.
(4) Nonprofit organization, as used in this clause, means a
domestic university or other institution of higher education or an
organization of the type described in Section 501(c)(3) of the
Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and exempt from
taxation under Section 501(a) of the Internal Revenue Code (26
U.S.C. 501(a)), or any domestic nonprofit scientific or educational
organization qualified under a State nonprofit organization statute.
(5) Practical application, as used in this clause, means to
manufacture, in the case of a composition or product; to practice,
in the case of a process or method; or to operate, in case of a
machine or system; and, in each, case, under such conditions as to
establish that the invention is being utilized and that its benefits
are, to the extent permitted by law or Government regulations,
available to the public on reasonable terms.
(6) Reportable item, as used in this clause, means any
invention, discovery, improvement, or innovation of the Recipient,
whether or not the same is or may be patentable or otherwise
protectable under Title 35 of the United States Code, conceived or
first actually reduced to practice in the performance of any work
under this contract or in the performance of any work that is
reimbursable under any clause in this contract providing for
reimbursement of costs incurred prior to the effective date of this
contract.
(7) Small business firm, as used in this clause, means a
domestic small business concern as defined at 15 U.S.C. 632 and
implementing regulations (see 13 CFR 121.401 through 121. 413) of
the Administrator of the Small Business Administration.
(8) Subject invention, as used in this clause, means any
reportable item which is or may be patentable or otherwise
protectable under Title 35 of the United States Code, or any novel
variety of plant that is or may be protectable under the Plant
Variety Protection Act (7 U.S.C. 2321, et seq).
(b) Allocation of principal rights.
(1) Presumption of title.
(i) Any reportable item that the Administrator considers to be a
subject invention shall be presumed to have been made in the manner
specified in paragraph (1) or (2) of Section 305(a) of the National
Aeronautics and Space Act of 1958 (42 U.S.C. 2457(a)) (hereinafter
called ``the Act''), and the above presumption shall be conclusive
unless at the time of reporting the reportable item the Recipient
submits to the Grant Officer a written statement, containing
supporting details, demonstrating that the reportable item was not
made in the manner specified in paragraph (1) or (2) of Section
305(a) of the Act.
(ii) Regardless of whether title to a given subject invention
would otherwise be subject to an advance waiver or is the subject of
a petition for waiver, the Recipient may nevertheless file the
statement described in paragraph (b)(1)(i) of this section. The
Administrator will review the information furnished by the Recipient
in any such statement and any other available information relating
to the circumstances surrounding the making of the subject invention
and will notify the Recipient whether the Administrator has
determined that the subject invention was made in the manner
specified in paragraph (1) or (2) of Section 305(a) of the Act.
(2) Property rights in subject inventions. Each subject
invention for which the presumption of paragraph (b)(1)(i) of this
section is conclusive or for which there has been a determination
that it was made in the manner specified in paragraph (1) or (2) of
Section 305(a) of the Act shall be the exclusive property of the
United States as represented by NASA unless the Administrator waives
all or any part of the rights of the United States, as provided in
paragraph (b)(3) of this section.
(3) Waiver of rights.
(i) Section 305(f) of the Act provides for the promulgation of
regulations by which the Administrator may waive the rights of the
United States with respect to any invention or class of inventions
made or that may be made under conditions specified in paragraph (1)
or (2) of Section 305(a) of the Act. The promulgated NASA Patent
Waiver Regulations, 14 CFR part 1245, subpart 1, have adopted the
Presidential memorandum on Government Patent Policy of February 18,
1983, as a guide in acting on petitions (requests) for such waiver
of rights.
(ii) As provided in 14 CFR part 1245, Subpart 1, Recipients may
petition, either prior to execution of the Agreement or within 30
days after execution of the Agreement, for advance waiver of rights
to any or all of the inventions that may be made under an Agreement.
If such a petition is not submitted, or if after submission it is
denied, the Recipient (or an employee inventor of the Recipient may
petition for waiver of rights to an identified subject invention
within eight months of first disclosure of invention in accordance
with paragraph (e)(2) of this section or within such longer period
as may be authorized in accordance with 14 CFR 1245.105. Further
procedures are provided in the REQUESTS FOR WAIVER OF RIGHTS--LARGE
BUSINESS provision.
(c) Minimum rights reserved by the Government.
(1) With respect to each Recipient subject invention for which a
waiver of rights is applicable in accordance with 14 CFR part 1245,
subpart 1, the Government reserves--
(i) An irrevocable, royalty-free license for the practice of
such invention throughout the world by or on behalf of the United
States or any foreign government in accordance with any treaty or
agreement with the United States; and
(ii) Such other rights as stated in 14 CFR 1245.107.
(2) Nothing contained in this paragraph shall be considered to
grant to the Government any rights with respect to any invention
other than a subject invention.
(d) Minimum rights to the Recipient.
(1) The Recipient is hereby granted a revocable, nonexclusive,
royalty-free license in each patent application filed in any country
on a Recipient subject invention and any resulting patent in which
the Government acquires title, unless the Recipient fails to
disclose the subject invention within the times specified in
paragraph (e)(2) of this section. The Recipient's license extends to
its domestic subsidiaries and affiliates, if any, within the
corporate structure of which the Recipient is a party and includes
the right to grant sublicenses of the same scope to the extent the
Recipient was legally obligated to do so at the time the contract
was awarded. The license is transferable only with the approval of
the Administrator except when transferred to the successor of that
part of the Recipient's business to which the invention pertains.
(2) The Recipient's domestic license may be revoked or modified
by the Administrator to the extent necessary to achieve expeditious
practical application of the subject invention pursuant to an
application for an exclusive license submitted in accordance with 14
CFR part 1245, subpart 2, Licensing of NASA Inventions. This license
will not be revoked in that field of use or the geographical areas
in which the Recipient has achieved practical application and
continues to make the benefits of the invention reasonably
accessible to the public. The license in any foreign country may be
revoked or modified at the discretion of the Administrator to the
extent the Recipient, its licensees, or its domestic subsidiaries or
affiliates have failed to achieve practical application in that
foreign country.
(3) Before revocation or modification of the license, the
Recipient will be provided a written notice of the Administrator's
intention to revoke or modify the license, and the Recipient will be
allowed 30 days (or such other time as may be authorized by the
Administrator for good cause shown by the Recipient) after the
notice to show cause why the license should not be revoked or
modified. The Recipient has the right to appeal, in accordance with
14 CFR 1245.211, any decision concerning the revocation or
modification of its license.
(e) Invention identification, disclosures, and reports.
(1) The Recipient shall establish and maintain active and
effective procedures to assure that reportable items are promptly
identified and disclosed to Recipient personnel responsible for the
administration of this clause within six months of conception and/or
first actual reduction to practice, whichever occurs first in the
performance of work under this contract. These procedures shall
include the maintenance of laboratory notebooks or equivalent
records and other records as are
[[Page 50380]]
reasonably necessary to document the conception and/or the first
actual reduction to practice of the reportable items, and records
that show that the procedures for identifying and disclosing
reportable items are followed. Upon request, the Recipient shall
furnish the Grant Officer a description of such procedures for
evaluation and for determination as to their effectiveness.
(2) The Recipient will disclose each reportable item to the
Grant Officer within two months after the inventor discloses it in
writing to Recipient personnel responsible for the administration of
this clause or, if earlier, within six months after the Recipient
becomes aware that a reportable item has been made, but in any event
for subject inventions before any on sale, public use, or
publication of such invention known to the Recipient. The disclosure
to the agency shall be in the form of a written report and shall
identify the Agreement under which the reportable item was made and
the inventor(s) or innovator(s). It shall be sufficiently complete
in technical detail to convey a clear understanding, to the extent
known at the time of the disclosure, of the nature, purpose,
operation, and physical, chemical, biological, or electrical
characteristics of the reportable item. The disclosure shall also
identify any publication, on sale, or public use of any subject
invention and whether a manuscript describing such invention has
been submitted for publication and, if so, whether it has been
accepted for publication at the time of disclosure. In addition,
after disclosure to the agency, the Recipient will promptly notify
the agency of the acceptance of any manuscript describing a subject
invention for publication or of any on sale or public use planned by
the Recipient for such invention.
(3) The Recipient shall furnish the Grant Officer the following:
(i) Interim reports every 12 months (or such longer period as
may be specified by the Grant Officer) from the date of the
Agreement, listing reportable items during that period, and
certifying that all reportable items have been disclosed (or that
there are no such inventions) and that the procedures required by
paragraph (e)(1) of this section have been followed.
(ii) A final report, within three months after completion of the
work, listing all reportable items or certifying that there were no
such reportable items, and listing all subcontracts at any tier
containing a patent rights clause or certifying that there were no
such subcontracts.
(4) The Recipient agrees, upon written request of the Grant
Officer, to furnish additional technical and other information
available to the Recipient as is necessary for the preparation of a
patent application on a subject invention and for the prosecution of
the patent application, and to execute all papers necessary to file
patent applications on subject inventions and to establish the
Government's rights in the subject inventions.
(5) The Recipient agrees, subject to 48 CFR (FAR) 27.302(j),
that the Government may duplicate and disclose subject invention
disclosures and all other reports and papers furnished or required
to be furnished pursuant to this clause.
(f) Examination of records relating to inventions.
(1) The Grant Officer or any authorized representative shall,
pursuant to the Retention and Examination of Records provision of
this cooperative agreement, have the right to examine any books
(including laboratory notebooks), records, and documents of the
Recipient relating to the conception or first actual reduction to
practice of inventions in the same field of technology as the work
under this contract to determine whether--
(i) Any such inventions are subject inventions;
(ii) The Recipient has established and maintained the procedures
required by paragraph (e)(1) of this section; and
(iii) The Recipient and its inventors have complied with the
procedures.
(2) If the Grant Officer learns of an unreported Recipient
invention that the Grant Officer believes may be a subject
inventions, the Recipient may be required to disclose the invention
to the agency for a determination of ownership rights.
(3) Any examination of records under this paragraph will be
subject to appropriate conditions to protect the confidentiality of
the information involved.
(g) Subcontracts.
(1) Unless otherwise authorized or directed by the Grant
Officer, the Recipient shall--
(i) Include this Clause Patent Rights--Retention by the
Recipient--(Large Business) (suitably modified to identify the
parties) in any subcontract hereunder (regardless of tier) with
other than a small business firm or nonprofit organization for the
performance of experimental, developmental, or research work; and
(ii) Include the clause Patent Right--Retention by the
Recipient--(Small Business) (suitably modified to identify the
parties) in any subcontract hereunder (regardless of tier) with a
small business firm or nonprofit organization for the performance of
experimental, developmental, or research work.
(2) In the event of a refusal by a prospective subcontractor to
accept such a clause the Recipient--
(i) Shall promptly submit a written notice to the Grant Officer
setting forth the subcontractor's reasons for such refusal and other
pertinent information that may expedite disposition of the matter;
and
(ii) Shall not proceed with such subcontract without the written
authorization of the Grant Officer.
(3) The Recipient shall promptly notify the Grant Officer in
writing upon the award of any subcontract at any tier containing a
patent rights clause by identifying the subcontractor, the
applicable patent rights clause, the work to be performed under the
subcontract, and the dates of award and estimated completion. Upon
request of the Grant Officer, the Recipient shall furnish a copy of
such subcontract, and, no more frequently than annually, a listing
of the subcontracts that have been awarded.
(4) The subcontractor will retain all rights provided for the
Recipient in the clause of paragraph (g)(1)(i) or (1)(ii) of this
section, whichever is included in the subcontract, and the Recipient
will not, as part of the consideration for awarding the subcontract,
obtain rights in the subcontractor's subject inventions.
(5) Notwithstanding paragraph (g)(4) of this section, and in
recognition of the contractor's substantial contribution of funds,
facilities and/or equipment to the work performed under this
cooperative agreement, the Recipient is authorized, subject to the
rights of NASA set forth elsewhere in this clause, to:
(i) Acquire by negotiation and mutual agreement rights to a
subcontractor's subject inventions as the Recipient may deem
necessary to obtaining and maintaining of such private support; and
(ii) Request, in the event of inability to reach agreement
pursuant to paragraph (g)(5)(i) of this section, that NASA invoke
exceptional circumstances as necessary pursuant to 37 CFR
401.3(a)(2) if the prospective subcontractor is a small business
firm or organization, or for all other organizations, request that
such rights for the Recipient be included as an additional
reservation in a waiver granted pursuant to 14 CFR part 1245,
subpart 1. Any such requests to NASA should be prepared in
consideration of the following guidance and submitted to the
contract officer.
(A) Exceptional circumstances: A request that NASA make an
``exceptional circumstances'' determination pursuant to 37 CFR
401.3(a)(2) must state the scope of rights sought by the Recipient
pursuant to such determination; identify the proposed subcontractor
and the work to be performed under the subcontract; and state the
need for the determination.
(B) Waiver petition: The subcontractor should be advised that
unless it requests a waiver of title pursuant to the NASA Patent
Waiver Regulations (14 CFR part 1245, subpart 1), NASA will acquire
title to the subject invention (42 U.S.C. 2457, as amended, Sec.
305). If a waiver is not requested or granted, the Recipient may
request a license from NASA (see licensing of NASA inventions, 14
CFR part 1245, subpart 2). A subcontractor requesting a waiver must
follow the procedures set forth in the attached clause REQUESTS FOR
WAIVER OF RIGHTS--LARGE BUSINESS.
(h) Preference for United States manufacture. The Recipient
agrees that any products embodying subject inventions or produced
through the use of subject inventions shall be manufactured
substantially in the United States. However, in individual cases,
the requirement to manufacture substantially in the United States
may be waived by the Associate Administrator for Procurement (Code
HS) with the concurrence of the Associate General Counsel for
Intellectual Property upon a showing by the Recipient that under the
circumstances domestic manufacture is not commercially feasible.
(i) March-in rights. The Recipient agrees that, with respect to
any subject invention in which it has acquired title, NASA has the
right in accordance with the procedures in 37 CFR 401.6 and any
supplemental regulations of the agency to require the Recipient, an
assignee or exclusive licensee of a subject
[[Page 50381]]
invention to grant a nonexclusive, partially exclusive, or exclusive
license in any field of use to a responsible applicant or
applicants, upon terms that are reasonable under the circumstances,
and if the Subcontractor, assignee, or exclusive licensee refuses
such a request NASA has the right to grant such a license itself if
the Federal agency determines that--
(1) Such action is necessary because the Recipient or assignee
has not taken, or is not expected to take within a reasonable time,
effective steps to achieve practical application of the subject
invention in such field of use;
(2) Such action is necessary to alleviate health or safety needs
which are not reasonably satisfied by the Recipient, assignee, or
their licensees;
(3) Such action is necessary to meet requirements for public use
specified by Federal regulations and such requirements are not
reasonably satisfied by the Recipient, assignee, or licensees; or
(4) Such action is necessary because the agreement required by
paragraph (i) of this clause has not been obtained or waived or
because a licensee of the exclusive right to use or sell any subject
invention in the United States is in breach of such agreement.
[End of provision]
Sec. 1274.913 Patent rights--retention by the Recipient (small
business).
Patent Rights--Retention by the Recipient (Small Business) (Date)
(a) Definitions.
(1) ``Invention,'' as used in this clause, means any invention
or discovery which is or may be patentable or otherwise protectable
under title 35 of the U.S.C.
(2) ``Made,'' as used in this clause, when used in relation to
any invention means the conception or first actual reduction to
practice such invention.
(3) ``Nonprofit organization,'' as used in this clause, means a
university or other institution of higher education or an
organization of the type described in Section 501(c)(3) of the
Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and exempt from
taxation under Section 501(a) of the Internal Revenue Code (26
U.S.C. 501(a)) or any nonprofit scientific or educational
organization qualified under a state nonprofit organization statute.
(4) ``Practical application,'' as used in this clause, means to
manufacture, in the case of a composition of product; to practice,
in the case of a process or method, or to operate, in the case of a
machine or system; and, in each case, under such conditions as to
establish that the invention is being utilized and that its benefits
are, to the extent permitted by law or Government regulations,
available to the public on reasonable terms.
(5) ``Small business firm,'' as used in this clause, means a
small business concern as defined at Section 2 of Public Law 85-536
(15 U.S.C. 632) and implementing regulations (see 13 CFR 121.401
through 121.413 of the Administrator of the Small Business
Administration.
(6) ``Subject invention,'' as used in this clause, means any
invention of the Subcontractor conceived or first actually reduced
to practice in the performance of work under this Agreement.
(b) Allocation of principal rights. The Recipient may retain the
entire right, title, and interest throughout the world to each
subject invention subject to the provisions of this clause and 35
U.S.C. 203. With respect to any subject invention in which the
Recipient retains title, the Federal Government shall have a
nonexclusive, nontransferable, irrevocable, paid-up license to
practice or have practiced for or on behalf of the United States the
subject invention throughout the world.
(c) Invention disclosure, election of title, and filing of
patent application by Recipient.
(1) The Recipient will disclose each subject invention to NASA
within two months after the inventor discloses it in writing to
Recipient personnel responsible for patent matters. The disclosure
to the agency shall be in the form of a written report and shall
identify the contract under which the invention was made and the
inventor(s). It shall be sufficiently complete in technical detail
to convey a clear understanding to the extent known at the time of
the disclosure, of the nature, purpose, operation, and the physical,
chemical, biological or electrical characteristics of the invention.
The disclosure shall also identify any publication, on sale or
public use of the invention and whether a manuscript describing the
invention has been submitted for publication and, if so, whether it
has been accepted for publication at the time of disclosure. In
addition, after disclosure to the agency, the Recipient will
promptly notify the agency of the acceptance of any manuscript
describing the invention for publication or of any sale or public
use planned by the Recipient.
(2) The Recipient will elect in writing whether or not to retain
title to any such invention by notifying NASA within two years of
disclosure to the Federal agency. However, in any case where
publication, on sale or public use has initiated the one-year
statutory period wherein valid patent protection can still be
obtained in the United States, the period for election of title may
be shortened by the agency to a date that is no more than 60 days
prior to the end of the statutory period.
(3) The Recipient will file its initial patent application on a
subject invention to which it elects to retain title within one year
after election of title or, if earlier, prior to the end of any
statutory period wherein valid patent protection can be obtained in
the United States after a publication, on sale, or public use. The
Recipient will file patent applications in additional countries or
international patent offices within either 10 months of the
corresponding initial patent application of six months from the date
permission is granted by the Commissioner of Patents and Trademarks
to file foreign patent applications where such filing has been
prohibited by a Secrecy Order.
(4) Requests for extension of the time for disclosure election,
and filing under paragraphs (c)(1), (2), and (3) of this section
may, at the discretion of the agency, be granted.
(d) Conditions when the Government may obtain title. The
Recipient will convey to NASA, upon written request, title to any
subject invention--
(1) If the Recipient fails to disclose or elect title to the
subject invention within the times specified in paragraph (c) of
this section, or elects not to retain title; provided, that the
agency may only request title within 60 days after learning of the
failure of the Recipient to disclose or elect within the specified
times.
(2) In those countries in which the Recipient fails to file
patent applications within the times specified in paragraph (c) of
this section; provided, however, that if the Recipient has filed a
patent application in a country after the times specified in
paragraph (c) of this section, but prior to its receipt of the
written request of the Federal agency, the Recipient shall continue
to retain title in that country.
(3) In any country in which the Recipient decides not to
continue the prosecution of any application for, to pay the
maintenance fees on, or defend in reexamination or opposition
proceeding on, a patent on a subject invention.
(e) Minimum rights to Recipient and protection of the Recipient
right to file.
(1) The Recipient will retain a nonexclusive, royalty-free
license throughout the world in each subject invention to which the
Government obtains title, except if the Recipient fails to disclose
the invention within the times specified in paragraph (c) of this
section. The Recipient's license extends to its domestic subsidiary
and affiliates, if any, within the corporate structure of which the
Recipient is a party and includes the right to grant sublicenses of
the same scope to the extent the Recipient was legally obligated to
do so at the time the agreement was awarded. The license is
transferable only with the approval of NASA, except when transferred
to the successor of that part of the Recipient's business to which
the invention pertains.
(2) The Contractor's domestic license may be revoked or modified
by NASA to the extent necessary to achieve expeditious practical
application of subject invention pursuant to an application for an
exclusive license submitted in accordance with applicable provisions
at 37 CFR part 404 and agency licensing regulations (if any). This
license will not be revoked in that field of use or the geographical
areas in which the Subcontractor has achieved practical application
and continues to make the benefits of the invention reasonable
accessible to the public. The license in any foreign country may be
revoked or modified at the discretion of NASA to the extent the
Subcontractor, its licensees, or the domestic subsidiaries or
affiliates have failed to achieve practical application in that
foreign country.
(3) Before revocation or modification of the license, NASA will
furnish the Recipient a written notice of its intention to revoke or
modify the license, and the Recipient will be allowed 30 days (or
such other time as may be authorized by NASA for good cause shown by
the Recipient) after the notice to show cause why the license should
not be revoked or modified. The Recipient has the right to appeal,
in accordance with applicable regulations in 37 CFR part 404,
[[Page 50382]]
concerning the licensing of Government-owned inventions, any
decision concerning the revocation or modification of the license.
(f) Recipient action to protect the Government's interest.
(1) The Recipient agrees to execute or to have executed and
promptly deliver to NASA all instruments necessary to:
(i) establish or confirm the rights the Government has
throughout the world in those subject inventions to which the
Subcontractor elects to retain title, and,
(ii) convey title to the Federal agency when requested under
paragraph (d) of this section and to enable the Government to obtain
patent protection throughout the world in that subject invention.
(2) The Recipient agrees to require, by written agreement, its
employees, other than clerical and nontechnical employees, to
disclose promptly in writing to personnel identified as responsible
for the administration of patent matters and in a format suggested
by the Recipient each subject invention made under contract in order
that the Recipient can comply with the disclosure provisions of
paragraph (c) of this section, and to execute all papers necessary
to file patent applications on subject inventions and to establish
the Government's rights in the subject inventions. This disclosure
format should require, as a minimum, the information required by
paragraph (c)(1) of this section. The Recipient shall instruct such
employees, through employee agreements or other suitable educational
programs, on the importance of reporting inventions in sufficient
time to permit the filing of patent applications prior to U.S. or
foreign statutory bars.
(3) The Recipient will notify NASA of any decisions not to
continue the prosecution of a patent application, pay maintenance
fees, or defend in a reexamination or opposition proceeding on a
patent, in any country, not less than 30 days before the expiration
of the response period required by the relevant patent office.
(4) The Recipient agrees to include, within the specification of
any United States patent application and any patent issuing thereon
covering a subject invention the following statement, ``This
invention was made with Government support under (identify the
agreement) awarded by NASA. The Government has certain rights in the
invention.''
(5) The Recipient shall provide the Grant Officer the following:
(i) A listing every 12 months (or such longer period as the
Grant Officer may specify) from the date of the Agreement, of all
subject inventions required to be disclosed during the period.
(ii) A final report prior to closeout of the Agreement listing
all subject inventions or certifying that there were none.
(iii) Upon request, the filing date, serial number, and title, a
copy of the patent application, and patent number and issue date for
any subject invention in any country in which the Recipient has
applied for patents.
(iv) An irrevocable power to inspect and make copies of the
patent application file, by the Government, when a Federal
Government employee is a co-inventor.
(g) Subcontracts.
(1) Unless otherwise authorized or directed by the Grant
Officer, the Recipient shall--
(i) Include this clause (Patent Rights--Retention by the
Recipient (Small Business)), suitably modified to identify the
parties, in all subcontracts, regardless of tier, for experimental,
developmental, or research work to be performed by a small business
firm or domestic nonprofit organization; and
(ii) Include in all other subcontracts, regardless of tier, for
experimental, developmental, or research work the patent rights
clause (Patent Rights--Retention by the Recipient (Large Business).
(2) In the event of a refusal by a prospective subcontractor to
accept such a clause the Recipient--
(i) Shall promptly submit a written notice to the Grant Officer
setting forth the subcontractor's reasons for such refusal and other
pertinent information that may expedite disposition of the matter;
and
(ii) Shall not proceed with such subcontract without the written
authorization of the Grant Officer.
(3) The Recipient shall promptly notify the Grant Officer in
writing upon the award of any subcontract at any tier containing a
patent rights clause by identifying the subcontractor, the
applicable patent rights clause, the work to be performed under the
subcontract, and the dates of award and estimated completion. Upon
request of the Grant Officer, the Recipient shall furnish a copy of
such subcontract, and, no more frequently than annually, a listing
of the subcontracts that have been awarded.
(4) The subcontractor will retain all rights provided for the
Recipient in the clause under paragraph (g)(1)(i) or (ii) of this
section, whichever is included in the subcontract, and the Recipient
will not, as part of the consideration for awarding the subcontract,
obtain rights in the subcontractor's subject inventions.
(5) Notwithstanding paragraph (g)(4) of this section, and in
recognition of the contractor's substantial contribution of funds,
facilities and/or equipment to the work performed under this
cooperative agreement, the Recipient is authorized, subject to the
rights of NASA set forth elsewhere in this clause, to--
(i) Acquire by negotiation and mutual agreement rights to a
subcontractor's subject inventions as the Recipient may deem
necessary to obtaining and maintaining of such private support; and
(ii) Request, in the event of inability to reach agreement
pursuant to paragraph (g)(5)(i) of this section that NASA invoke
exceptional circumstances as necessary pursuant to 37 CFR
401.3(a)(2) if the prospective subcontractor is a small business
firm or organization, or for all other organizations, request that
such rights for the Recipient be included as an additional
reservation in a waiver granted pursuant to 14 CFR part 1245,
subpart 1. Any such requests to NASA should be prepared in
consideration of the following guidance and submitted to the
contract officer.
(A) Exceptional circumstances: A request that NASA make an
``exceptional circumstances'' determination pursuant to 37 CFR
401.3(a)(2) must state the scope of rights sought by the Recipient
pursuant to such determination; identify the proposed subcontractor
and the work to be performed under the subcontract; and state the
need for the determination.
(B) Waiver petition: The subcontractor should be advised that
unless it requests a waiver of title pursuant to the NASA Patent
Waiver Regulations (14 CFR part 1245, subpart 1), NASA will acquire
title to the subject invention (42 U.S.C. 2457, as amended, Sec.
305). If a waiver is not requested or granted, the Recipient may
request a license from NASA (see licensing of NASA inventions, 14
CFR part 1245, subpart 2). A subcontractor requesting a waiver must
follow the procedures set forth in the REQUESTS FOR WAIVER OF
RIGHTS--LARGE BUSINESS provision.
(h) Reporting on utilization of subject inventions. The
Recipient agrees to submit, on request, periodic reports no more
frequently than annually on the utilization of a subject invention
or on efforts at obtaining such utilization that are being made by
the Recipient or its licensees or assignees. Such reports shall
include information regarding the status of development, date of
first commercial sale or use, gross royalties received by the
Recipient, and such other data and information as the agency may
reasonably specify. The Recipient also agrees to provide additional
reports as may be requested by the agency in connection with any
march-in proceeding under-taken by the agency in accordance with
paragraph (i) of this section. As required by 35 U.S.C. 202(c)(5),
the agency agrees it will not disclose such information to persons
outside the Government without permission of the Recipient.
(i) Preference for United States manufacture. The Recipient
agrees that any products embodying subject inventions or produced
through the use of subject inventions shall be manufactured
substantially in the United States. However, in individual cases,
the requirement to manufacture substantially in the United States
may be waived by the Associate Administrator for Procurement (Code
HS) with the concurrence of the Associate General Counsel for
Intellectual Property upon a showing by the Recipient that under the
circumstances domestic manufacture is not commercially feasible.
(j) March-in rights. The Recipient agrees that, with respect to
any subject invention in which it has acquired title, NASA has the
right in accordance with the procedures in 37 CFR 401.6 and any
supplemental regulations of the agency to require the Recipient, an
assignee or exclusive licensee of a subject invention to grant a
nonexclusive, partially exclusive, or exclusive license in any field
of use to a responsible applicant or applicants, upon terms that are
reasonable under the circumstances, and if the Subcontractor,
assignee, or exclusive licensee refuses such a request NASA has the
right to grant such a license itself if the Federal agency
determines that--
(1) Such action is necessary because the Recipient or assignee
has not taken, or is not expected to take within a reasonable time,
[[Page 50383]]
effective steps to achieve practical application of the subject
invention in such field of use;
(2) Such action is necessary to alleviate health or safety needs
which are not reasonably satisfied by the Recipient, assignee, or
their licensees;
(3) Such action is necessary to meet requirements for public use
specified by Federal regulations and such requirements are not
reasonably satisfied by the Recipient, assignee, or licensees; or
(4) Such action is necessary because the agreement required by
paragraph (i) of this section has not been obtained or waived or
because a licensee of the exclusive right to use or sell any subject
invention in the United States is in breach of such agreement.
(k) Special provisions for Agreements with nonprofit
organizations. If the Recipient is a nonprofit organization, it
agrees that--
(1) Rights to a subject invention in the United States may not
be assigned without the approval of NASA, except where such
assignment is made to an organization which has one of its primary
functions the management of inventions; provided, that such assignee
will be subject to the same provisions as the Recipient;
(2) The Recipient will share royalties collected on a subject
invention with the inventor, including Federal employee co-inventors
(when NASA deems it appropriate) when the subject invention is
assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;
(3) The balance of any royalties or income earned by the
Recipient with respect to subject inventions, after payment of
expenses (including payments to inventors) incidental to the
administration of subject inventions will be utilized for the
support of scientific research or education; and
(4) It will make efforts that are reasonable under the
circumstances to attract licensees of subject inventions that are
small business firms, and that it will give a preference to a small
business firm when licensing a subject invention if the Recipient
determines that the small business firm has a plan or proposal for
marketing the invention which, if executed, is equally as likely to
bring the invention to practical application as any plans or
proposals from applicants that are not small business firms;
provided that the Recipient is also satisfied that the small
business firm has the capability and resources to carry out its plan
or proposal. The decision whether to give a preference in any
specific case will be at the discretion of the Recipient. However,
the Recipient agrees that the Secretary of Commerce may review the
Contractor's licensing program and decisions regarding small
business applicants, and the Recipient will negotiate changes to its
licensing policies, procedures, or practices with the Secretary of
Commerce when the Secretary's review discloses that the Recipient
could take reasonable steps to more effectively implement the
requirements of this paragraph.
(l) A copy of all submissions or requests required by this
clause, plus a copy of any reports, manuscripts, publications, or
similar material bearing on patent matters, shall be sent to the
installation Patent Counsel in addition to any other submission
requirements in the cooperative agreement. If any reports contain
information describing a ``subject invention'' for which the
Recipient has elected or may elect title, NASA will use reasonable
efforts to delay public release by NASA or publication by NASA in a
NASA technical series, in order for a patent application to be
filed, provided that the Recipient identify the information and the
``subject invention'' to which it relates at the time of submittal.
If required by the Grant Officer, the Recipient shall provide the
filing date, serial number and title, a copy of the patent
application, and a patent number and issue date for any ``subject
invention'' in any country in which the Recipient has applied for
patents.
[End of provision]
Sec. 1274.914 Requests for waiver of rights--large business.
Requests for Waiver of Rights--Large Business (Date)
(a) In accordance with the NASA Patent Waiver Regulations, 14
CFR part 1245, subpart 1, waiver of rights to any or all inventions
made or that may be made under a NASA agreement, contract or
subcontract with other than a small business firm or a domestic
nonprofit organization may be requested at different time periods.
Advance waiver of rights to any or all inventions that may be made
under a contract or subcontract may be requested prior to the
execution of the agreement, contract or subcontract, or within 30
days after execution by the selected Recipient. In addition, waiver
of rights to an identified invention made and reported under an
agreement, contract or subcontract may be requested, even though a
request for an advance waiver was not made or, if made, was not
granted.
(b) Each request for waiver of rights shall be by petition to
the Administrator and shall include an identification of the
petitioner; place of business and address; if petitioner is
represented by counsel, the name, address, and telephone number of
the counsel; the signature of the petitioner or authorized
representative; and the date of signature. No specific forms need be
used, but the request should contain a positive statement that
waiver of rights is being requested under the NASA Patent Waiver
Regulations; a clear indication of whether the request is for an
advance waiver or for a waiver of rights for an individual
identified invention; whether foreign rights are also requested and,
if so, the countries, and a citation of the specific section or
sections of the regulations under which such rights are requested;
and the name, address, and telephone number of the party with whom
to communicate when the request is acted upon. Requests for advance
waiver of rights should, preferably, be included with the proposal,
but in any event in advance of negotiations.
(c) Petitions for advance waiver, prior to agreement execution,
must be submitted to the Grant Officer. All other petitions will be
submitted to the Patent Representative designated in the contract.
(d) Petitions submitted with proposals selected for negotiation
of an agreement will be forwarded by the Grant Officer to the
installation Patent Counsel for processing and then to the
Inventions and Contributions Board. The Board will consider these
petitions and where the Board makes the findings to support the
waiver, the Board will recommend to the Administrator that waiver be
granted, and will notify the petitioner and the Grant Officer of the
Administrator's determination. The Grant Officer will be informed by
the Board whenever there is insufficient time or information or
other reasons to permit a decision to be made without unduly
delaying the execution of the agreement. In the latter event, the
petitioner will be so notified by the Grant Officer. All other
petitions will be processed by installation Patent Counsel and
forwarded to the Board. The Board shall notify the petitioner of its
action and if waiver is granted, the conditions, reservations, and
obligations thereof will be included in the Instrument of Waiver.
Whenever the Board notifies a petitioner of a recommendation adverse
to, or different from, the waiver requested, the petitioner may
request reconsideration under procedures set forth in the
Regulations.
[End of provision]
Sec. 1274.915 Restrictions on sale or transfer of technology to
foreign firms or institutions.
Restrictions on Sale or Transfer of Technology to Foreign Firms or
Institutions (Date)
(a) The parties agree that access to technology developments
under this Agreement by foreign firms or institutions must be
carefully controlled. For purposes of this clause, a transfer
includes a sale of the company, or sales or licensing of the
technology. Transfers do not include--
(1) Sales of products or components;
(2) Licenses of software or documentation related to sales of
products or components; or
(3) Transfers to foreign subsidiaries of the Recipient for
purposes related to this Agreement.
(b) The Recipient shall provide timely notice to the Grant
Officer in writing of any proposed transfer of technology developed
under this Agreement. If NASA determines that the transfer may have
adverse consequences to the national security interests of the
United States, or to the establishment of a robust United States
industry, NASA and the Recipient shall jointly endeavor to find
alternatives to the proposed transfer which obviate or mitigate
potential adverse consequences of the transfer.
[End of provision]
Sec. 1274.916 Liability and risk of loss.
Liability and Risk of Loss (Date)
(a) With regard to activities undertaken pursuant to this
agreement, neither party shall make any claim against the other,
employees of the other, the other's related entities (e.g.,
contractors, subcontractors, etc.), or employees of the other's
related entities for any injury to or death of its own
[[Page 50384]]
employees or employees of its related entities, or for damage to or
loss of its own property or that of its related entities, whether
such injury, death, damage or loss arises through negligence or
otherwise, except in the case of willful misconduct.
(b) To the extent that a risk of damage or loss is not dealt
with expressly in this agreement, each party's liability to the
other party arising out of this Agreement, whether or not arising as
a result of an alleged breach of this Agreement, shall be limited to
direct damages only, and shall not include any loss of revenue or
profits or other indirect or consequential damages.
[End of provision]
Sec. 1274.917 Additional funds.
Additional Funds (Date)
Pursuant to this agreement, NASA is providing a fixed amount of
funding for activities to be undertaken under the terms of this
cooperative agreement. NASA is under no obligation to provide
additional funds. Under no circumstances shall the Recipient
undertake any action which could be construed to imply an increased
commitment on the part of NASA under this cooperative agreement.
[End of provision]
Sec. 1274.918 Incremental funding.
Incremental Funding (Date)
(a) Of the award amount indicated on the cover page of this
agreement, only the obligated amount indicated on the cover page of
this agreement is available for payment. NASA anticipates making
additional allotments of funds as required,
(b) These funds will be obligated as appropriated funds become
available without any action required of the Recipient. NASA is not
obligated to make payments in excess of the total funds obligated.
[End of provision]
Sec. 1274.919 Cost principles and accounting standards.
Cost Principles and Accounting Standards (Date)
The expenditure of Government funds by the Recipient and the
allowability of costs recognized as a resource contribution by the
Recipient (See clause entitled ``Resource Sharing Requirements'')
shall be governed by the FAR cost principles, 48 CFR part 31. (If
the Recipient is a consortium which includes non-commercial firm
members, cost allowability for those members will be determined as
follows: Allowability of costs incurred by State, local or
federally-recognized Indian tribal governments is determined in
accordance with the provisions of OMB Circular A-87, ``Cost
Principles for State and Local Governments.'' The allowability of
costs incurred by non-profit organizations is determined in
accordance with the provisions of OMB Circular A-122, ``Cost
Principles for Non-Profit Organizations.'' The allowability of costs
incurred by institutions of higher education is determined in
accordance with the provisions of OMB Circular A-21, ``Cost
Principles for Educational Institutions.'' The allowability of costs
incurred by hospitals is determined in accordance with the
provisions of appendix E of 45 CFR part 74, ``Principles for
Determining Costs Applicable to Research and Development Under
Grants and Contracts with Hospitals.'') Recipient's method for
accounting for the expenditure of funds must be consistent with
Generally Accepted Accounting Principles.
[End of provision]
Sec. 1274.920 Responsibilities of the NASA Technical Officer.
Responsibilities of the NASA Technical Officer (Date)
(a) The NASA Grant Administrator and Technical Officer for this
cooperative agreement are identified on the cooperative agreement
cover sheet.
(b) The Grant Specialist shall serve as NASA's authorized
representative for the administrative elements of all work to be
performed under the agreement.
(c) The Technical Officer shall have the authority to issue
written Technical Advice which suggests redirecting the project work
(e.g., by changing the emphasis among different tasks), or pursuing
specific lines of inquiry likely to assist in accomplishing the
effort. The Technical Officer shall have the authority to approve or
disapprove those technical reports, plans, and other technical
information the Recipient is required to submit to NASA for
approval. The Technical Officer is not authorized to issue and the
Recipient shall not follow any Technical Advice which constitutes
work which is not contemplated under this agreement; which in any
manner causes an increase or decrease in the resource sharing or in
the time required for performance of the project; which has the
effect of changing any of the terms or conditions of the cooperative
agreement; or which interferes with the Recipient's right to perform
the project in accordance with the terms and conditions of this
cooperative agreement.
[End of provision]
Sec. 1274.921 Publications and reports: Non-proprietary research
results.
Publications and Reports: Non-Proprietary Research Results (Date)
(a) NASA encourages the widest practicable dissemination of
research results at all times during the course of the investigation
consistent with the other terms of this agreement.
(b) All information disseminated as a result of the cooperative
agreement shall contain a statement which acknowledges NASA's
support and identifies the cooperative agreement by number.
(c) Prior approval by the NASA Technical Officer is required
only where the Recipient requests that the results of the research
be published in a NASA scientific or technical publication. Two
copies of each draft publication shall accompany the approval
request.
(d) Reports shall contain full bibliographic references,
abstracts of publications and lists of all other media in which the
research was discussed. The Recipient shall submit the following
technical reports:
(1) A progress report for every year of the cooperative
agreement (except the final year). Each report is due 60 days before
the anniversary date of the cooperative agreement and shall describe
research accomplished during the report period.
(2) A summary of research is due by 90 days after the expiration
date of the cooperative agreement, regardless of whether or not
support is continued under another cooperative agreement. This
report is intended to summarize the entire research accomplished
during the duration of the cooperative agreement.
(e) Progress reports and summaries of research shall display the
following on the first page:
(1) Title of the cooperative agreement.
(2) Type of report.
(3) Period covered by the report.
(4) Name and address of the Recipient's organization.
(5) Cooperative agreement number.
(f) An original and two copies, one of which shall be of
suitable quality to permit micro-reproduction, shall be sent as
follows:
(1) Original--Grant Officer.
(2) Copy--Technical Officer.
(3) Micro-reproducible copy--NASA Center for Aerospace
Information (CASI), Parkway Center, Attn: Document Processing
Section, 7121 Standard Drive, Hanover, MD 21076.
(g) The requirements set forth under this provision may be
modified by the Grant Officer based on specific report needs for the
particular grant or cooperative agreement.
[End of provision]
Sec. 1274.922 Suspension or termination.
Suspension or Termination (Date)
(a) This cooperative agreement may be suspended or terminated in
whole or in part by the Recipient or by NASA after consultation with
the other party. NASA may terminate the agreement, for example, if
the Recipient is not making anticipated technical progress, if the
Recipient materially fails to comply with the terms of the
agreement, if the Recipient materially changes the objective of the
agreement, or if appropriated funds are not available to support the
program.
(b) Upon fifteen (15) days written notice to the other party,
either party may temporarily suspend the cooperative agreement,
pending corrective action or a decision to terminate the cooperative
agreement. The notice should express the reasons why the agreement
is being suspended.
(c) In the event of termination by either party, the Recipient
shall not be entitled to additional funds or payments except as may
be required by the Recipient to meet NASA's share of commitments
which had in the judgment of NASA become firm prior to the effective
date of termination and are otherwise appropriate. In no event,
shall these additional funds or payments exceed the amount of the
next payable milestone billing amount.
[End of provision]
[[Page 50385]]
Sec. 1274.923 Equipment and other property.
Equipment and Other Property (Date)
(a) NASA cooperative agreements permit acquisition of special
purpose equipment required for the conduct of research. Acquisition
of special purpose equipment costing in excess of $5,000 and not
included in the approved proposal budget requires the prior approval
of the Grant Officer unless the item is merely a different model of
an item shown in the approved proposal budget.
(b) Recipients may not purchase, as a direct cost to the
cooperative agreement, items of general purpose equipment, examples
of which include but are not limited to office equipment and
furnishings, air conditioning equipment, reproduction and printing
equipment, motor vehicles, and automatic data processing equipment.
If the Recipient requests an exception, the Recipient shall submit a
written request for Grant Officer approval, prior to purchase by the
Recipient, stating why the Recipient cannot charge the general
purpose equipment to indirect costs.
(c) Under no circumstances shall cooperative agreement funds be
used to acquire land or any interest therein, to acquire or
construct facilities (as defined in 48 CFR (FAR) 45.301), or to
procure passenger carrying vehicles.
(d) The government shall have title to equipment and other
personal property acquired with government funds. Such property
shall be disposed of pursuant to 48 CFR (FAR) 45.603. The Recipient
shall have title to equipment and other personal property acquired
with Recipient funds. Such property shall remain with the Recipient
at the conclusion of the cooperative agreement.
(e) Title to Government furnished equipment (including
equipment, title to which has been transferred to the Government
prior to completion of the work) will remain with the Government.
(f) The Recipient shall establish and maintain property
management standards for Government property and otherwise manage
such property as set forth in 48 CFR (FAR) 45.5 and 48 CFR (NFS)
1845.5.
(g) Recipients shall submit annually a NASA Form 1018, NASA
Property in the Custody of Contractors, in accordance with the
instructions on the form, the provisions of 18 CFR (NFS) 1845.71 and
any supplemental instructions that may be issued by NASA for the
current reporting period. The original NF 1018 shall be submitted to
the center Deputy Chief Financial Officer, Finance, with three
copies sent concurrently to the center Industrial Property Officer.
The annual reporting period shall be from October 1 of each year
through September 30 of the following year. The report shall be
submitted in time to be received by October 31. Negative reports
(i.e. no reportable property) are required. The information
contained in the reports in entered into the NASA accounting system
to reflect current asset values for agency financial statement
purposes. Therefore, it is essential that required reports be
received no later than October 31. A final report is required within
30 days after expiration of the agreement.
[End of provision]
Sec. 1274.924 Civil rights.
Civil Rights (Date)
Work on NASA cooperative agreements is subject to the provisions
of Title VI of the Civil Rights Act of 1964 (Public Law 88-352; 42
U.S.C. 2000d-l), Title IX of the Education Amendments of 1972 (20
U.S.C. 1680 et seq.), Section 504 of the Rehabilitation Act of 1973,
as amended (29 U.S.C. 794), the Age Discrimination Act of 1975 (42
U.S.C. 6101 et seq.), and the NASA implementing regulations (14 CFR
parts 1250, 1251, 1252 and 1253).
[End of provision]
Sec. 1274.925 Subcontracts.
Subcontracts (Date)
(a) Recipients are not authorized to issue grants or cooperative
agreements.
(b) NASA Grant Officer consent is required for subcontracts over
$100,000, if not accepted by NASA in the original proposal. The
Recipient shall provide the following information to the Grant
Officer:
(1) A copy of the proposed subcontract.
(2) Basis for subcontractor selection.
(3) Justification for lack of competition when competitive bids
or offers are not obtained.
(4) Basis for award cost or award price.
(c) The Recipient shall utilize small business concerns, small
disadvantaged business concerns, Historically Black Colleges and
Universities, minority educational institutions, and women-owned
small business concerns as subcontractors to the maximum extent
practicable.
[End of provision]
Sec. 1274.926 Clean Air-Water Pollution Control Acts.
Clean Air-Water Pollution Control Acts (Date)
If this cooperative agreement or supplement thereto is in excess
of $100,000, the Recipient agrees to notify the Grant Officer
promptly of the receipt, whether prior or subsequent to the
Recipient's acceptance of this cooperative agreement, of any
communication from the Director, Office of Federal Activities,
Environmental Protection Agency (EPA), indicating that a facility to
be utilized under or in the performance of this cooperative
agreement or any subcontract thereunder is under consideration to be
listed on the EPA ``List of Violating Facilities'' published
pursuant to 40 CFR part 15. By acceptance of a cooperative agreement
in excess of $100,000, the Recipient--
(a) Stipulates that any facility to be utilized thereunder is
not listed on the EPA ``List of Violating Facilities'' as of the
date of acceptance;
(b) Agrees to comply with all requirements of Section 114 of the
Clean Air Act, as amended (42 U.S.C. 1857 et seq. as amended by
Public Law 91-604) and Section 308 of the Federal Water Pollution
Control Act, as amended (33 U.S.C. 1251 et seq. as amended by Public
Law 92-500) relating to inspection, monitoring, entry, reports and
information, and all other requirements specified in the
aforementioned sections, as well as all regulations and guidelines
issued thereunder after award of and applicable to the cooperative
agreement; and
(c) agrees to include the criteria and requirements of this
clause in every subcontract hereunder in excess of $100,000, and to
take such action as the Grant Officer may direct to enforce such
criteria and requirements.
[End of provision]
Sec. 1274.927 Debarment and suspension and Drug-Free Workplace.
Debarment and Suspension and Drug-Free Workplace (Date)
NASA cooperative agreements are subject to the provisions of 14
CFR part 1265, Government-wide Debarment and Suspension
(Nonprocurement) and Government-wide requirements for Drug-Free
Workplace, unless excepted by 14 CFR 1265.110 or 1265.610.
[End of provision]
Sec. 1274.928 Foreign national employee investigative requirements.
Foreign National Employee Investigative Requirements (Date)
(a) The Recipient shall submit a properly executed Name Check
Request (NASA Form 531) and a completed applicant fingerprint card
(Federal Bureau of Investigation Card FD-258) for each foreign
national employee requiring access to a NASA Installation. These
documents shall be submitted to the Installation's Security Office
at least 75 days prior to the estimated duty date. The NASA
Installation Security Office will request a National Agency Check
(NAC) for foreign national employees requiring access to NASA
facilities. The NASA Form 531 and fingerprint card may be obtained
from the NASA Installation Security Office.
(b) The Installation Security Office will request from NASA
Headquarters, Office of External Relations (Code I), approval for
each foreign national's access to the Installation prior to
providing access to the Installation. If the access approval is
obtained from NASA Headquarters prior to completion of the NAC and
performance of the cooperative agreement requires a foreign national
to be given access immediately, the Technical Officer may submit an
escort request to the Installation's Chief of Security.
[End of provision]
Sec. 1274.929 Restrictions on lobbying.
Restrictions on Lobbying (Date)
This award is subject to the provisions of 14 CFR part 1271
``New Restrictions on Lobbying.''
[End of provision]
Sec. 1274.930 Travel and transportation.
Travel and Transportation (Date)
(a) For travel funded by the government under this agreement,
Section 5 of the International Air Transportation Fair Competitive
Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires
the Recipient to use U.S.-flag air carriers for international air
transportation of personnel
[[Page 50386]]
and property to the extent that service by those carriers is
available.
(b) Department of Transportation regulations, 49 CFR part 173,
govern Recipient shipment of hazardous materials and other items.
[End of provision]
Sec. 1274.931 Electronic funds transfer payment methods.
Electronic Funds Transfer Payment Methods (Date)
Payments under this cooperative agreement will be made by the
Government by electronic funds transfer through the Treasury Fedline
Payment System (FEDLINE) or the Automated Clearing House (ACH), at
the option of the Government. After award, but no later than 14 days
before an invoice is submitted, the Recipient shall designate a
financial institution for receipt of electronic funds transfer
payments, and shall submit this designation to the Grant Officer or
other Government official, as directed.
(a) For payment through FEDLINE, the Recipient shall provide the
following information:
(1) Name, address, and telegraphic abbreviation of the financial
institution receiving payment.
(2) The American Bankers Association 9-digit identifying number
for wire transfers of the financing institution receiving payment if
the institution has access to the Federal Reserve Communication
System.
(3) Payee's account number at the financial institution where
funds are to be transferred.
(4) If the financial institution does not have access to the
Federal Reserve Communications System, name, address, and
telegraphic abbreviation of the correspondent financial institution
through which the financial institution receiving payment obtains
wire transfer activity. Provide the telegraphic abbreviation and
American Bankers Association identifying number for the
correspondent institution.
(b) For payment through ACH, the Recipient shall provide the
following information:
(1) Routing transit number of the financial institution
receiving payment (same as American Bankers Association identifying
number used for FEDLINE).
(2) Number of account to which funds are to be deposited.
(3) Type of depositor account (``C'' for checking, ``S'' for
savings).
(4) If the Recipient is a new enrollee to the ACH system, a
``Payment Information Form,'' SF 3881, must be completed before
payment can be processed.
(c) In the event the Recipient, during the performance of this
cooperative agreement, elects to designate a different financial
institution for the receipt of any payment made using electronic
funds transfer procedures, notification of such change and the
required information specified above must be received by the
appropriate Government official 30 days prior to the date such
change is to become effective.
(d) The documents furnishing the information required in this
clause must be dated and contain the signature, title, and telephone
number of the Recipient official authorized to provide it, as well
as the Recipient's name and contract number.
(e) Failure to properly designate a financial institution or to
provide appropriate payee bank account information may delay
payments of amounts otherwise properly due.
[End of provision]
Sec. 1274.932 Retention and examination of records.
Retention and Examination of Records (Date)
Financial records, supporting documents, statistical records,
and all other records (or microfilm copies) pertinent to this
cooperative agreement shall be retained for a period of 3 years,
except that records for non-expendable property acquired with
cooperative agreement funds shall be retained for 3 years after its
final disposition and, if any litigation, claim, or audit is started
before the expiration of the 3-year period, the records shall be
retained until all litigation, claims, or audit findings involving
the records have been resolved. The retention period starts from the
date of the submission of the final invoice. The Administrator of
NASA and the Comptroller General of the United States, or any of
their duly authorized representatives, shall have access to any
pertinent books, documents, papers, and records of the Recipient and
of subcontractors to make audits, examinations, excerpts, and
transcripts. All provisions of this clause shall apply to any
subcontractor performing substantive work under this cooperative
agreement.
[End of provision]
Sec. 1274.933 Summary of recipient reporting responsibilities.
Summary of Recipient Reporting Responsibilities (Date)
This cooperative agreement requires the recipient to submit a
number of reports. These reporting requirements are summarized
below. In the event of a conflict between this provision and other
provisions of the cooperative agreement requiring reporting, the
other provisions take precedence.
[The Grant Officer may add/delete reporting requirements as
appropriate.]
------------------------------------------------------------------------
Report Frequency Reference
------------------------------------------------------------------------
Report of Joint NASA/ As required......... Sec. 1274.911
Recipient Inventions. Patent Rights
(Paragraph (b)(4))
Interim Report of Reportable Every 12 months..... Patent Rights--
Items. Retention by the
Recipient (Large
Business)
(Paragraph
(e)(3)(i))
Final Report of Reportable 3 months after Sec. 1274.912
Items. completion. Patent Rights--
Retention by the
Recipient (Large
Business)
(Paragraph
(e)(3)(ii)).
Disclosure of Subject Within 2 months Patent Rights
Inventions. after inventor Retention by the
discloses it to (Large Recipient
Recipient. Business)
(Paragraph (e)(2))
or Sec. 1274.913
Patent Rights--
Retention by the
Recipient (Small
Business)
(Paragraph (c)(1)).
Election of Title to a 1 year after Patent Rights--
Subject Invention. disclosure of the Retention by
the subject Recipient (Small
invention if a Business)
statutory bar (Paragraph (c)(2)).
exists, otherwise
within 2 years.
Listing of Subject Every 12 months from Patent Rights--
Inventions. the date of the Retention by the
agreement. Recipient (Small
Business)
(Paragraph
(f)(5)(i)).
Subject Inventions Final Prior to close-out Sec. 1274.913
Report. of the agreement. Retention by the
Recipient (Small
Business)
(Paragraph
(f)(5)(ii).
Notification of Decision to 30 days before Patent Rights--
Forego Patent Protection. expiration of Retention by the
response period. Recipient (Small
Business)
(Paragraph (f)(3)).
Notification of a Promptly upon award Patent Rights--
Subcontract Award. of a subcontract. Retention by the
Recipient (Large
Business)
(Paragraph (g)(3))
or Sec. 1274.913
Patent Rights--
Retention by the
Recipient (Small
Business)
(Paragraph (g)(3).
Utilization of Subject Annually............ Patent Rights--
Invention. Retention by the
Recipient (Small
Business)
(Paragraph (h)).
[[Page 50387]]
Notice of Proposed Transfer Prior to Sec. 1274.915
of Technology. transferring Restrictions on
technology to Sale or Transfer of
foreign firm or Technology to
institution. Foreign Firms or
Institutions
(Paragraph (b)).
Progress Report............. 60 days prior to the Publications and
anniversary date of Reports: Non-
the agreement Proprietary
(except final year). Research Results
(Paragraph (d)(1)).
Summary of Research......... 90 days after Publications and
completion of Reports: Non-
agreement. Proprietary
Research Results
(Paragraph (d)(2)).
NASA Form 1018 Property in Annually by October Equipment and Other
Custody of Contractors. 31. Property (Paragraph
(g)).
NASA Form 1018 Property in 60 days after Equipment and Other
the Custody of Contractors.. expiration date of Property (Paragraph
agreement. (g)).
------------------------------------------------------------------------
[End of provision]
Sec. 1274.934 Safety.
Safety (Date)
(a) The recipient shall act responsibly in matters of safety and
shall take all reasonable safety measures in performing under this
grant or cooperative agreement. The recipient shall comply with all
applicable federal, state, and local laws relating to safety. The
recipient shall maintain a record of, and will notify the NASA Grant
Officer of any accident involving death, disabling injury or
substantial loss of property. The recipient will advise NASA of
hazards that come to its attention as a result of the work performed
through routine status reports furnished in compliance with this
grant or cooperative agreement.
(b) Where the work under this grant or cooperative agreement
involves flight hardware, the hazardous aspects, if any, of such
hardware will be identified, in writing, by the recipient.
Compliance with this provision by subcontractors shall be the
responsibility of the recipient.
[End of provision]
Appendix to Part 1274--Listing of Exhibits
Exhibit A to Part 1274--Contract Provisions
All contracts awarded by a Recipient, including small purchases,
shall contain the following provisions if applicable:
1. Equal Employment Opportunity. All contracts shall contain a
provision requiring compliance with Executive Order 11246, ``Equal
Employment Opportunity,'' as amended by Executive Order 11375,
``Amending Executive Order 11246 Relating to Equal Employment
Opportunity,'' and as supplemented by regulations at 41 CFR Chapter
60, ``Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor.''
2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C.
276c). All contracts in excess of $50,000 for construction or repair
awarded by Recipients and subRecipients shall include a provision
for compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C.
874), as supplemented by Department of Labor regulations (29 CFR
part 3, ``Contractors and Subcontractors on Public Building or
Public Work Financed in Whole or in Part by Loans or Grants from the
United States''). The Act provides that each Recipient or
subRecipient shall be prohibited from inducing, by any means, any
person employed in the construction, completion, or repair of public
work, to give up any part of the compensation to which he is
otherwise entitled. The Recipient shall report all suspected or
reported violations to NASA.
3. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333). Where applicable, all contracts awarded by Recipients in
excess of $2,000 for construction contracts and in excess of $50,000
for other contracts, other than contracts for commercial items, that
involve the employment of mechanics or laborers shall include a
provision for compliance with Sections 102 and 107 of the Contract
Work Hours and Safety Standards Act (40 U.S.C. 327-333), as
supplemented by Department of Labor regulations (29 CFR part 5).
Under Subsection 102 of the Act, each Recipient shall be required to
compute the wages of every mechanic and laborer on the basis of a
standard work week of 40 hours. Work in excess of the standard work
week is permissible provided that the worker is compensated at a
rate of not less than 1\1/2\ times the basic rate of pay for all
hours worked in excess of 40 hours in the work week. Section 107 of
the Act is applicable to construction work and provides that no
laborer or mechanic shall be required to work in surroundings or
under working conditions which are unsanitary, hazardous or
dangerous. These requirements do not apply to the purchases of
supplies or materials or articles ordinarily available on the open
market, or contracts for transportation or transmission of
intelligence.
4. Rights to Inventions Made Under a Contract or Agreement.
Contracts or agreements for the performance of experimental,
developmental, or research work shall provide for the rights of the
Federal Government and the Recipient in any resulting invention in
accordance with 37 CFR part 401, ``Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government
Grants, Contracts and Cooperative Agreements,'' and any implementing
regulations issued by the awarding agency.
5. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended.
Contracts, other than contracts for commercial items, of amounts in
excess of $100,000 shall contain a provision that requires the
Recipient to agree to comply with all applicable standards, orders
or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401
et seq.) and the Federal Water Pollution Control Act as amended (33
U.S.C. 1251 et seq.). Violations shall be reported to NASA and the
Regional Office of the Environmental Protection Agency (EPA).
6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors
who apply or bid for an award of $100,000 or more shall file the
required certification. Each tier certifies to the tier above that
it will not and has not used Federal appropriated funds to pay any
person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. 1352. Each tier shall also disclose any
lobbying with non-Federal funds that takes place in connection with
obtaining any Federal award. Such disclosures are forwarded from
tier to tier up to the Recipient.
7. Debarment and Suspension (Executive Orders 12549 and 12689).
No contract shall be made to parties listed on the General Services
Administration's List of Parties Excluded from Federal Procurement
or Nonprocurement Programs in accordance with Executive Orders 12549
and 12689, ``Debarment and Suspension.'' This list contains the
names of parties debarred, suspended, or otherwise excluded by
agencies, and contractors declared ineligible under statutory or
regulatory authority other than Executive Order 12549. Contractors
with awards that exceed the small purchase threshold shall provide
the required certification regarding its exclusion status and that
of its principal employees.
Exhibit B to Part 1274--Reports
1. Individual Procurement Action Report (NASA Form 507)
The grant officer is responsible for submitting NASA Form 507
for all cooperative agreement actions.
2. Property Reporting
As provided in paragraph (g) of 1274.923, an annual NASA Form
(NF) 1018, NASA Property in the Custody of Contractors, will be
submitted by October 31 of each year. Negative annual reports are
required. A final report is required within 30 days after expiration
of the agreement.
3. Disclosure of Lobbying Activities (SFLLL)
(a) Grant officers shall provide one copy of each SF LLL
furnished under 14 CFR
[[Page 50388]]
1271.110 to the Procurement Officer for transmittal to the Director,
Analysis Division (Code HC).
(b) Suspected violations of the statutory prohibitions
implemented by 14 CFR part 1271 shall be reported to the Director,
Contract Management Division (Code HK).
[FR Doc. 99-23031 Filed 9-15-99; 8:45 am]
BILLING CODE 7510-01-P
