Availability of Small Business Cooperative Research and Development Agreement (CRADA)

DEPARTMENT OF ENERGY

Availability of Small Business Cooperative Research and

Development Agreement (CRADA)

AGENCY: Office of Technology Utilization, Office of Laboratory

Management, Department of Energy (DOE).

ACTION: Notice of availability and opportunity for public comment.

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SUMMARY: This notice announces the availability of the Department of

Energy Small Business Cooperative Research and Development Agreement

(CRADA). The Small Business CRADA is a set of terms and conditions

which will be used for preparing CRADAs between Department of Energy

laboratories and facilities and non-Federal participants. The Small

Business CRADA is a greatly streamlined document designed to simplify

the process of executing CRADAs, substantially reducing the time and

cost of negotiations. The Small Business CRADA reflects input from

Department of Energy Headquarters, Operations Office and Laboratory

elements. The Small Business CRADA provides terms and conditions that

are pre-approved and designed to be adopted in their entirety without

modification. The terms and conditions in the Small Business CRADA are

most appropriate for small dollar value partnerships with low potential

for the development of new intellectual property, or in cases where

software is not perceived as the primary output. In partnerships where

the above conditions would not be met, the Department's newly developed

Modular CRADA is the alternate vehicle. The Small Business CRADA is

expected to be periodically reviewed and revised as a part of the

Department of Energy's continuous improvement process. Comments from

the public are encouraged.

ADDRESSES: A copy of the Small Business CRADA is available for

inspection and reproduction at the public reading room of the U.S.

Department of Energy, Forrestal Building, 1000 Independence Avenue SW.,

Washington, DC. The public reading room is open from 10 a.m. to 4 p.m.;

you may contact reading room staff at (202) 586-6020. If you want a

copy of the Small Business CRADA mailed to you directly, please contact

DOE Public Affairs Office at the address below. Although this is not an

announcement of a formal comment process, comments on the Small

Business CRADA are welcome and may be sent to the address below.

FOR FURTHER INFORMATION OR TO COMMENT CONTACT: U.S. Department of

Energy, PA-5, 1000 Independence Avenue SW., Washington, DC 20585,

Phone: 202-586-5575, Fax: 202-586-7303.

SUPPLEMENTARY INFORMATION: The Small Business CRADA and guidelines are

attached. Issued at Washington, DC, on March 9, 1994.

Antionette Grayson Joseph,

Acting Director, Office of Laboratory Management.

Supplemental Guidelines for Using the Department of Energy Small

Business CRADA

This Department of Energy (DOE) Cooperative Research and

Development Agreement (CRADA) is designed to be a model offered to

small businesses as a means for streamlining and simplifying the CRADA

process for the small business. In order to ensure expedited CRADA

development and approval, this document must be adopted in its

entirety, as written, by both/all parties with no exceptions. This

document is pre-approved by DOE.

The Small Business CRADA will be offered to firms that

meet the qualifications of a ``small business'' as defined by the U.S.

Small Business Administration:

--Is independently owned and organized for profit and has its principal

place of business located in the United States.

--Is at least 51 percent owned, or in the case of publicly owned

business, at least 51 percent of its voting stock is owned by United

States citizens or lawfully admitted permanent resident aliens.

--Has, including its affiliates, a number of employees not exceeding

500, and meets the other regulatory requirements found in 15 U.S.C.

632(a).

This CRADA, while designed primarily for the small business user,

as defined above, does not exclude use by other partners who do not

meet the small business criteria but who are willing to accept the full

terms of this CRADA.

The small business (or other potential partner) should be

clearly advised that this CRADA must be adopted in its entirety, as

written, by both/all parties and, at the same time, advised of the

alternative to use the Modular CRADA if the total terms of the Small

Business CRADA are not agreeable.

This Small Business CRADA is limited to a dollar total

value combined contribution of partner costs and DOE costs over the

life of the CRADA not to exceed $150,000.

This Small Business CRADA is not to be used when a purpose

of the agreement relates to software.

The entire package including appendices will be submitted

to DOE for approval.

Guidance for the Modular CRADA applies to clauses

unchanged in the Small Business CRADA.

For each project, a Statement of Work (SOW) that draws

upon the Joint Work Statement, that details the nature, scope, roles,

responsibilities, and costs of activities to be conducted by both

parties together with a timeline with milestones and deliverables will

be prepared and submitted to DOE for approval. The SOW will be

incorporated into the CRADA as Appendix A.

Requirements for the provision and timing of reports to

DOE on efforts to commercialize Subject Inventions will be addressed in

the Joint Work Statement (JWS). These requirements will satisfy the

Department's requirements, as established, based on the Technology

Transfer Committee Measurements and Evaluation Working Group

recommendations.

Stevenson-Wydler (15 USC 3710) Small Business Cooperative Research and

Development Agreement (Hereinafter ``CRADA'') No. ____________

Between

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under its U.S. Department of Energy Contract No. ____________

(hereinafter ``Contractor'') and

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(hereinafter ``Participant'') both being hereinafter jointly referred

to as the ``Parties''

Article I: Definitions

A. ``Government'' means the United States of America and agencies

thereof.

B. ``DOE'' means the Department of Energy, an agency of the United

States of America.

C. ``Contracting Officer'' means the DOE employee administering

DOE's contract with the Contractor.

D. ``Generated Information'' means information produced in the

performance of this CRADA.

E. ``Proprietary Information'' means information which is developed

at private expense outside of this CRADA, is marked as Proprietary

Information, and embodies (i) trade secrets or (ii) commercial or

financial information which is privileged or confidential under the

Freedom of Information Act (5 USC 552 (b)(4)).

F. ``Protected CRADA Information'' means Generated Information

which is marked as being Protected CRADA Information by a Party to this

CRADA and which would have been Proprietary Information had it been

obtained from a non-federal entity.

G. ``Subject Invention'' means any invention of the Contractor or

Participant conceived of or first actually reduced to practice in the

performance of work under this CRADA.

H. ``Intellectual Property'' means patent applications, patents,

and other forms of comparable property rights protected by Federal law

and its foreign counterparts.

Article II: Statement of Work

Appendix A is the Statement of Work.

Article III: Funding and Costs

A. The Participant's estimated contribution is $________ . The

Government's estimated contribution, which is provided through the

Contractor's contract with DOE, is $________ , subject to available

funding.

B. Neither Party shall have an obligation to continue or complete

performance of its work at a cost in excess of its estimated cost,

including any subsequent amendment.

C. Each Party agrees to provide at least ________ days' notice to

the other Party if the actual cost to complete performance will exceed

its estimated costs.

[D. For CRADAs which include funding on a funds-in basis, an

advance payment provision will be negotiated consistent with current

DOE Policy.]

Article IV: Personal Property

Any tangible personal property produced in conducting the work

under this CRADA shall be owned by the Party paying for it. There will

be no jointly funded property. Personal Property shall be disposed of

as directed by the owner at the owner's expense.

Article V: Disclaimer

The Government, the participant, and the contractor make no express

or implied warranty as to the conditions of the research or any

intellectual property or product made, or developed under this CRADA,

or the ownership, merchantability or fitness for a particular purpose

of the research or resulting product. Neither the Government, the

participant, nor the contractor shall be liable for special,

consequential or incidental damages.

Article VI: Hold Harmless

Except for any liability resulting from any negligent acts or

omissions of Contractor, Participant agrees to hold harmless the

Government and the Contractor for all damages, costs and expenses,

including attorney's fees, arising from personal injury or property

damage occurring as a result of the making, using or selling of a

product, process or service by or on behalf of the Participant, its

assignees or licensees, which was derived from the work performed under

this CRADA.

Article VII: Proprietary Information

Each Party agrees to not disclose Proprietary Information provided

by the other Party to anyone other than the providing Party without the

written approval of the providing Party, except to Government employees

who are subject to 18 USC 1905.

Article VIII: Obligations as to Protected CRADA Information

Each Party may designate and mark as Protected CRADA Information

any qualifying Generated Information produced by its employees. For a

period of ____________ [not to exceed five years] from the date it is

produced, the Parties agree not to further disclose such Information

except as necessary to perform this CRADA or as requested by the DOE

Contracting Officer to be provided to other DOE facilities for use only

at those DOE facilities with the same protection in place.

Article IX: Cessation of Obligations Regarding Protected and

Proprietary Information

The obligations relating to the disclosure or dissemination, or

both, of Protected CRADA Information and Proprietary Information shall

end if any such information becomes inadvertently publicly known or is

developed independently by a Party's employees who did not have access

to the information.

Article X: Rights in Generated Information

The Parties understand that the Government shall have unlimited

rights and each of them shall have a right to use all Generated

Information or information provided to the Parties under this CRADA

which is not marked as being Protected CRADA Information or Proprietary

Information.

Article XI: Export Control

Each party is responsible for its own compliance with such laws and

regulations.

Article XII: Reports and Abstracts

The Parties agree to produce the following deliverables: an initial

abstract suitable for public release; and a final report, to include a

list of subject inventions. It is understood that the Contractor has

the responsibility to provide this information at the time of its

completion to the DOE Office of Scientific and Technical Information.

Use of the name of the other Party or its employees in any

promotional activity, with reference to this CRADA, requires written

approval of the other Party.

Article XIII: Rights to Inventions

The Parties agree to promptly disclose in writing to each other

every Subject Invention in sufficient detail to comply with the

provisions of 35 U.S.C. 112 well before any statutory bars may arise

under 35 U.S.C. 102. Each Party shall have the first option to retain

title to any inventions made by its employees during the work under

this CRADA. If a Party elects not to retain title to any such invention

of its employees, then the other Party shall have the option to elect

to retain title to such inventions under this Agreement. The Parties

acknowledge that the DOE may obtain title to each Subject Invention

reported under this Article for which a patent application is not

filed, a patent application is not prosecuted to issuance, or any

issued patent is not maintained by any Party to this CRADA. The

Government shall retain a non-exclusive, non-transferable, irrevocable,

paid-up license to practice, or to have practiced, for or on its behalf

all Subject Inventions under this CRADA throughout the world.

Article XIV: Reports of Invention Use

The Parties agree to submit, upon request of DOE, reports no more

frequently than annually on the efforts to obtain utilization of any

Subject Invention.

Article XV: DOE March-in-Rights

The Parties acknowledge that the DOE has certain march-in rights to

any Subject Inventions in accordance with 48 CFR 27.304-1(g).

Article XVI: U.S. Competitiveness

The Parties agree that a purpose of this CRADA is to provide

substantial benefit to the U.S. economy. In exchange for the benefits

received under this CRADA, the Parties therefore agree to the

following:

A. Products embodying Intellectual Property developed under this

CRADA shall be substantially manufactured in the United States; and

B. Processes, services, and improvements thereof which are covered

by Intellectual Property developed under this CRADA shall be

incorporated into the Participant's manufacturing facilities in the

United States either prior to or simultaneously with implementation

outside the United States. Such processes, services, and improvements,

when implemented outside the U.S., shall not result in reduction of the

use of the same processes, services, or improvements in the United

States.

Article XVIII: Force Majeure

Neither Party will be liable for unforeseeable events beyond its

reasonable control.

Article XVIII: Disputes

The Parties will attempt to resolve any differences between them

which may arise during the course of this CRADA. In the event that a

dispute cannot be resolved between the Parties, the dispute may be

resolved by a court of competent jurisdiction.

Article XIX: Entire CRADA and Modifications

This document and its Appendices represent the entire agreement

reached between the Parties in performing the research described in the

Statement of Work (Appendix A) and becomes effective on the date the

last Party signs the document. This CRADA is pre-approved by DOE. Any

agreement to materially change any terms or conditions of the

Appendices shall be valid only if the change is made in writing,

executed by the Parties hereto, and approved by DOE.

Article XX: Termination

This CRADA may be terminated by either Party with ________ days

written notice to the other Party. Each party will be responsible for

its own costs as a result of this termination. The confidentiality, use

and/or non-disclosure obligations described in this CRADA shall survive

any termination.

For Contractor:

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For Participant:

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[FR Doc. 94-6567 Filed 3-18-94; 8:45 am]

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