Financial Assistance Rules; Regulatory Reduction

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DEPARTMENT OF ENERGY

10 CFR Part 600

RIN 1991AB23

Financial Assistance Rules; Regulatory Reduction

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) today is proposing to amend its

Financial Assistance Rules (Rules) to streamline, simplify, and improve

the DOE financial assistance process. The rules have been rewritten to

eliminate coverage that is unnecessary, to present clear coverage, and

to retain only that coverage that is considered suitable for a

regulation. The proposed changes primarily affect internal DOE

procedures and will give greater authorities to program and field

contracting offices in soliciting, reviewing, and processing

applications and making awards. The patent, data and copyright

provisions have been streamlined and updated to reflect the recent

changes in the Department of Energy Acquisition Regulations. The

Governmentwide uniform administrative requirements for grants and

cooperative agreements to higher education institutions, hospitals, and

other nonprofits and to governmental recipients are not changed by this

proposed rulemaking. The Governmentwide requirements pertaining to

audits of State and local governments remain unchanged.

DATES: Comments should be submitted on or before September 7, 1995.

ADDRESSES: Comments should be addressed to: Cherlyn Seckinger, Business

and Financial Policy Division (HR-51), Office of Procurement and

Assistance Management, U.S. Department of Energy, 1000 Independence

Avenue, SW., Washington, DC 20585, (202) 586-8192.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Purpose

S: Comments should be submitted on or before September 7, 1995.

ADDRESSES: Comments should be addressed to: Cherlyn Seckinger, Business

and Financial Policy Division (HR-51), Office of Procurement and

Assistance Management, U.S. Department of Energy, 1000 Independence

Avenue, SW., Washington, DC 20585, (202) 586-8192.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Purpose

II. Overview of the Organization of the DOE Financial Assistance

Rules

III. Changes to 10 CFR Part 600

IV. Review Under Executive Order 12612

V. Regulatory Review

VI. Review Under the Regulatory Flexibility Act

VII. Review Under the Paperwork Reduction Act

VIII. Review Under the National Environmental Policy Act

IX. Review Under Executive Order 12778

X. Public Comments

XI. Public Hearing Determination

I. Introduction and Purpose

The Department of Energy is proposing to amend Subpart A of its

Financial Assistance Rules to simplify and streamline the financial

assistance process in keeping with Departmental and Governmentwide

initiatives to improve the way the Department does business. The

proposed changes primarily affect DOE internal procedures contained in

Subpart A pertaining to the solicitation, evaluation, and award

processes, and will have little or no impact on requirements applicable

to recipients of DOE financial assistance. In most instances, the

proposed rule will not contain detailed internal procedures for DOE

officials, but instead establish standards or basic requirements. For

example, the section on objective merit review for financial assistance

applications would be reduced to the essential elements required for an

adequate merit review system. In other sections, decision making would

be delegated to the lowest appropriate level which in many cases is at

the contracting activity where the financial assistance awards are made

and administered

c requirements. For

example, the section on objective merit review for financial assistance

applications would be reduced to the essential elements required for an

adequate merit review system. In other sections, decision making would

be delegated to the lowest appropriate level which in many cases is at

the contracting activity where the financial assistance awards are made

and administered. One new section has been added to give DOE the

flexibility in appropriate circumstances to make small dollar awards on

a fixed obligation basis. In a fixed obligation award, a fixed amount

of funds are issued in support of a project without a requirement for

Federal monitoring of actual costs subsequently incurred. These awards

are intended for use in support of projects where there is certainty

about the costs and project accomplishments.

In DOE's implementation of the uniform administrative requirements

for grants and agreements with institutions of higher education,

hospitals, and other nonprofit organizations on October 21, 1994 (59 FR

53260), DOE chose to continue to extend the administrative requirements

for grants and agreements to commercial entities. In doing this

streamlining review of the rule, we found the patent and data

provisions of the uniform administrative requirements in Section

600.136 on Intangible Property needed modifications to clarify how

Section 600.136 applied to commercial organizations with respect to

patent, data, and copyright coverage and to cross-reference the

specific DOE patent, data, and copyright coverage of the existing

Section 600.33. This proposed rule attempts to make clear DOE patent

and data provisions for all recipients including large businesses and

foreign entities. The appropriate changes to the uniform administrative

requirements of Section 600.136 to the new Section 600.27 are included

in this proposed rule.

II. Overview of Organization of DOE Financial Assistance Rules

t coverage of the existing

Section 600.33. This proposed rule attempts to make clear DOE patent

and data provisions for all recipients including large businesses and

foreign entities. The appropriate changes to the uniform administrative

requirements of Section 600.136 to the new Section 600.27 are included

in this proposed rule.

II. Overview of Organization of DOE Financial Assistance Rules

When DOE implemented the uniform administrative requirements of OMB

Circular A-110 for Grants and Cooperative Agreements With Institutions

of Higher Education, Hospital, Other Non-Profit Organizations and

Commercial Organizations in October, 1994, DOE also reordered the

subparts of the Financial Assistance Rules.

The rules as changed in October of 1994 consist of five subparts:

Subpart A, General; Subpart B, Uniform Administrative Requirements for

Grants and Cooperative Agreements With Institutions of Higher

Education, Hospitals, Other Non-Profit Organizations and Commercial

Organizations; Subpart C, Uniform Administrative Requirements for

Grants and Cooperative Agreements to State and Local Governments;

Subpart D, Cooperative Agreements; and Subpart E, Audits of State and

Local Governments. As part of our streamlining efforts, we decided we

no longer needed a separate subpart for Cooperative Agreements because

many of the requirements pertinent to cooperative agreements such as

the application, funding, and administrative requirements were the same

as for grants. The few areas that were different (such as the

substantial involvement and patent and data provisions) we decided to

integrate into the general coverage in Subpart A.

III. Changes to 10 CFR Part 600

bpart for Cooperative Agreements because

many of the requirements pertinent to cooperative agreements such as

the application, funding, and administrative requirements were the same

as for grants. The few areas that were different (such as the

substantial involvement and patent and data provisions) we decided to

integrate into the general coverage in Subpart A.

III. Changes to 10 CFR Part 600

Section 600.2 Applicability would be rewritten in simpler language

to state that the DOE financial assistance rules apply to financial

assistance applications and new, continuation and renewal awards.

Section 600.3 Definitions would be reduced to cover only those

terms which are not defined elsewhere in the rule; therefore, the

definitions sections in Subparts B and C, are still needed.

Section 600.4 Deviations would be changed to update citations

only.

Sections 600.5 Selection of award instrument would be expanded to

cover in greater detail what DOE means by substantial involvement under

cooperative agreements. This definition of substantial involvement is

consistent with the existing coverage in Subpart D and the Federal

Grant and Cooperative Agreement Act.

Section 600.6 Discretionary awards would be eliminated since it is

primarily internal guidance. Special solicitation instruments called

Program Opportunity Notices and Program Research and Development

Announcements would be eliminated. In keeping with the simplification

objective, it was decided these special instruments are no longer

necessary and the general coverage under solicitations would meet our

needs. The policy statement regarding competition in financial

assistance has been retained, but would be moved to the new Section

600.6 Eligibility.

Section 600.7 Eligibility would be renumbered 600.6 and changed to

increase the threshold requiring Assistant Secretary or designee

approval of restricted eligibility and noncompetitive determinations

from $250,000 to $1,000,000

would meet our

needs. The policy statement regarding competition in financial

assistance has been retained, but would be moved to the new Section

600.6 Eligibility.

Section 600.7 Eligibility would be renumbered 600.6 and changed to

increase the threshold requiring Assistant Secretary or designee

approval of restricted eligibility and noncompetitive determinations

from $250,000 to $1,000,000. This would provide for greater decision-

making authority at the local level where the financial assistance

awards are being made and administered.

The requirement of the existing rule for a Federal Register notice

for noncompetitive awards which has been waived by a class deviation

would be eliminated by this rulemaking.

Section 600.8 Small and disadvantaged business participation would

be renumbered 600.7 and rewritten as a policy statement to encourage

the participation of small and disadvantaged businesses in DOE

financial assistance and contracts awarded under financial assistance

and to include in the policy women-owned businesses and historically

black colleges and universities.

Section 600.9 Solicitation would be renumbered 600.8 and changed

to give program offices the authority to issue solicitations. The

current rule requires solicitations to be issued by a contracting

officer unless the solicitation is issued under a program rule. To

ensure uniformity and compliance with the fundamental requirements of

the solicitation process, any solicitation would have to meet the

requirements contained in this section regardless of who issues it. Any

solicitation issued by a program office

tations. The

current rule requires solicitations to be issued by a contracting

officer unless the solicitation is issued under a program rule. To

ensure uniformity and compliance with the fundamental requirements of

the solicitation process, any solicitation would have to meet the

requirements contained in this section regardless of who issues it. Any

solicitation issued by a program office

would require coordination with the contracting office prior to

issuance.

Section 600.10 Form and content of applications would be amended

to eliminate the requirements pertaining to preapplication content

because DOE programs rarely require preapplication submissions. If

needed by DOE, the solicitation itself would describe to potential

applicants the information required in a preapplication based on

specific program needs.

Section 600.11 Intergovernmental review would be remain the same.

Section 600.12 Generally applicable requirements would be revised

for simplicity and clarity.

Section 600.13 Application deadlines would be deleted as being too

rigid as a general rule covering all financial assistance applications.

Instead, the simplified requirement covered in 600.8 under

solicitations specifies that a solicitation must include information

specifying due dates and a statement describing the consequences of

late submission.

Section 600.14 Unsolicited applications would be deleted and the

procedures for noncompetitive financial assistance covered in Section

600.6 procedures will be used. The criteria for acceptance of an

unsolicited application would not be changed.

Section 600.15 Notice of program interest would be renumbered

600.10 and the coverage revised to eliminate the requirement that a

notice contain all the information included in a solicitation.

Section 600.16 Objective merit review would be renumbered 600.13

and revised to allow more program office discretion in setting up a

system provided the basic standards of a merit review system are met

Section 600.15 Notice of program interest would be renumbered

600.10 and the coverage revised to eliminate the requirement that a

notice contain all the information included in a solicitation.

Section 600.16 Objective merit review would be renumbered 600.13

and revised to allow more program office discretion in setting up a

system provided the basic standards of a merit review system are met.

Section 600.17 Conflict of interest would be renumbered 600.14.

Section 600.18 Authorized uses of information would be renumbered

600.15 and the definitions section deleted as unnecessary.

Section 600.19 Application evaluation and selection would be

eliminated since the process is covered under objective merit review.

Section 600.20 Legal authority and effect of an award would be

renumbered 600.16 and paragraph (b) eliminated since it is an internal

administrative material and not a regulatory requirement.

Section 600.21 Contents of award would be renumbered 600.17 and

the essential parts of an award document summarized in a short

paragraph.

Section 600.22 Recipient acknowledgement of award would be

renumbered 600.18 and reduced to the basic requirements.

Section 600.23 Notification to unsuccessful applicants would be

renumbered 600.19 and the requirement stated more concisely.

Section 600.24 Maximum DOE obligation would be renumbered 600.20.

Section 600.25 Access to records would be renumbered 600.21 and

changed to cross-reference the Governmentwide coverage contained in

Subparts B and C.

Section 600.26 Disputes and appeals would be renumbered 600.22 and

language added to cover alternative dispute resolution.

Section 600.27 Debarment and suspension would be renumbered

600.23.

Section 600.28 Noncompliance would be renumbered 600.24.

Section 600.29 Suspension and termination would be renumbered

600.25.

Section 600.30 Responsible applicant would be deleted since it

doesn't add requirements that are not covered elsewhere

renumbered 600.22 and

language added to cover alternative dispute resolution.

Section 600.27 Debarment and suspension would be renumbered

600.23.

Section 600.28 Noncompliance would be renumbered 600.24.

Section 600.29 Suspension and termination would be renumbered

600.25.

Section 600.30 Responsible applicant would be deleted since it

doesn't add requirements that are not covered elsewhere.

Section 600.31 Funding would be renumbered 600.26 and the

limitations related to 12-month budget periods removed so that budget

periods can be more easily tied to meaningful performance phases or

activities. Also, provisions regarding retroactive extensions would be

deleted since they establish an unnecessary restriction on actions

which are within a contracting officer's authority to approve or

disapprove on a case-by-case basis.

Section 600.32 Calculation of award would be eliminated since it

provides instructions to DOE contracting officials which do not need to

be in a regulation. Provisions of interest to recipients pertaining to

excess funds notifications and unobligated balances are already covered

under the Governmentwide requirements in Subparts B and C.

Section 600.33 Patents, data and copyrights would be renamed

``Patent and Data Provisions'' and renumbered as 600.27. The patent,

data and copyrights requirements for grant and cooperative agreement

awards have been streamlined and have been revised to be consistent

with the Department's recent updating of patent regulations for

contracts (60 FR 11812).

Section 600.34 New restrictions on lobbying would be renumbered

600.28, renamed, and cross-reference the lobbying rules at 10 CFR 601.

A new Section 600.29 Fixed obligation awards would be added to

give DOE the flexibility to make small dollar ($100,000 or less)

financial assistance awards on a fixed amount basis where there is

certainty about the costs and the project accomplishments are readily

discernable such as, conferences, workshops, equipment, and travel

renamed, and cross-reference the lobbying rules at 10 CFR 601.

A new Section 600.29 Fixed obligation awards would be added to

give DOE the flexibility to make small dollar ($100,000 or less)

financial assistance awards on a fixed amount basis where there is

certainty about the costs and the project accomplishments are readily

discernable such as, conferences, workshops, equipment, and travel.

This type of award would reduce the administrative requirements placed

on recipients and reduce the administrative burden for both DOE and

recipients. Fixed obligation awards have been previously authorized by

a class deviation from 10 CFR Part 600 which is now being superseded by

these provisions.

In Section 600.112 Forms for applying for Federal assistance of

Subpart B, paragraph (c) would be revised by changing the cross-

references in the parenthetical phrase ``(See Section 600.31 (b) and

(c))'' to read ``(See Section 600.26 (b) and (c)).''

Section 600.136 Intangible property of Subpart B would be revised

to cross-reference the new Section 600.27 and to clarify the coverage

for commercial organizations.

Section 600.306 Cost sharing of Subpart D would be renumbered

600.30 and applied to grants as well as cooperative agreements since

choice of financial assistance instrument is irrelevant to the basic

policy of requiring cost sharing for research, development, and

demonstration projects.

Subpart D Cooperative Agreements would be removed and Subpart E

Audits of State and Local Governments would be redesignated as Subpart

D.

Sections 600.402, 600.403, 600.405, and 600.415 of Subpart E would

be amended to correct the references resulting from the proposed

streamlining changes.

IV. Review Under Executive Order 12612

haring for research, development, and

demonstration projects.

Subpart D Cooperative Agreements would be removed and Subpart E

Audits of State and Local Governments would be redesignated as Subpart

D.

Sections 600.402, 600.403, 600.405, and 600.415 of Subpart E would

be amended to correct the references resulting from the proposed

streamlining changes.

IV. Review Under Executive Order 12612

Executive Order 12612 requires that regulations, rules,

legislation, and any other policy actions be reviewed for any

substantial effects on States, on the relationship between the Federal

Government and the States, or in the distribution of power and

responsibilities among various levels of Government. If there are

sufficient substantial direct effects, then the Executive Order

requires preparation of a federalism assessment to be used in all

decisions involved in promulgating and implementing a policy action.

Today's proposed rule would revise certain policy and procedural

requirements. However, DOE has determined that this rulemaking will not

have a substantial direct effect on the institutional interests or

traditional functions of States.

V. Regulatory Review

Today's regulatory action has been determined not to be a

``significant regulatory action'' under Executive Order 12866,

``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).

Accordingly, today's action was not subject to review under the

Executive Order by the Office of Information and Regulatory Affairs.

VI. Review Under the Regulatory Flexibility Act

V. Regulatory Review

Today's regulatory action has been determined not to be a

``significant regulatory action'' under Executive Order 12866,

``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).

Accordingly, today's action was not subject to review under the

Executive Order by the Office of Information and Regulatory Affairs.

VI. Review Under the Regulatory Flexibility Act

This proposed rule was reviewed under the Regulatory Flexibility

Act of 1980, Pub.L. 96-354, 94 Stat. 1164, which requires preparation

of a regulatory flexibility analysis for any regulation that will have

a significant economic impact on a substantial number of small

entities, i.e., small businesses, small organizations, and small

governmental jurisdictions. DOE has concluded that the proposed rule

would only affect small entities as they apply for and receive

financial assistance, and does not create additional economic impact on

small entities as a whole. DOE certifies that this proposed rule would

not have a significant economic impact on a substantial number of small

entities and, therefore, no regulatory flexibility analysis has been

prepared.

VII. Review Under the Paperwork Reduction Act

No information collection or recordkeeping requirements are imposed

upon the public by this rulemaking. Accordingly, no OMB clearance is

required under the Paperwork Reduction Act of 1980, 44 USC 3501, et.

seq., or OMB implementing regulations at 5 CFR Part 1320.

VIII. Review Under the National Environmental Policy Act

alysis has been

prepared.

VII. Review Under the Paperwork Reduction Act

No information collection or recordkeeping requirements are imposed

upon the public by this rulemaking. Accordingly, no OMB clearance is

required under the Paperwork Reduction Act of 1980, 44 USC 3501, et.

seq., or OMB implementing regulations at 5 CFR Part 1320.

VIII. Review Under the National Environmental Policy Act

DOE has concluded that this rule falls into a class of actions

(categorical exclusions A5) that are categorically excluded from

National Environmental Policy Act (NEPA) review because they would not

individually or cumulatively have significant impact on the human

environment, as determined by the Department's regulations (10 CFR Part

1021, Subpart D) implementing the National Environmental Policy Act of

1969 (42 U.S.C. 4321, 4331-4335, 4341-4347 (1976)). Therefore, this

rule does not require an environmental impact statement or an

environmental assessment pursuant to NEPA.

IX. Review Under Executive Order 12778

Section 2 of Executive Order 12778 instructs each agency to adhere

to certain requirements in promulgating new regulations and reviewing

existing regulations. These requirements, set forth in sections 2(a)

and (b)(2), include eliminating drafting errors and needless ambiguity,

drafting the regulations to minimize litigation, providing clear and

certain legal standards for affected conduct, and promoting

simplification and burden reduction. Agencies are also instructed to

make every reasonable effort to ensure that the regulation specifies

clearly any preemptive effect, effect on existing Federal law or

regulation, and retroactive effect; describes any administrative

proceedings to be available prior to judicial review and any revisions

for the exhaustion of such administrative proceedings, and defines the

terms. DOE certifies that today's rule meets the requirements of

sections 2 (a) and (b) of Executive Order 12778.

X. Public Comments

y preemptive effect, effect on existing Federal law or

regulation, and retroactive effect; describes any administrative

proceedings to be available prior to judicial review and any revisions

for the exhaustion of such administrative proceedings, and defines the

terms. DOE certifies that today's rule meets the requirements of

sections 2 (a) and (b) of Executive Order 12778.

X. Public Comments

Interested persons are invited to participate in this rulemaking by

submitting data, views, or arguments with respect to the changes set

forth in this notice. Three copies of written comments should be

submitted to the address indicated in the ADDRESSES section of this

notice. All comments received will be available for public inspection

in the DOE Reading Room, Room 1E-190, Forrestal Building, 1000

Independence Avenue, SW., Washington, D.C. 20585, between the hours of

9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. All

written comments received by the date given in the DATES section will

be fully considered. Any information considered to be confidential must

be so identified and submitted in writing, one copy only. The DOE

reserves the right to determine the confidential status of the

information and to treat it according to our determination.

XI. Public Hearing Determination

DOE has concluded that this proposed rule does not involve any

significant issues of law or fact. Therefore, consistent with 5 U.S.C.

553, DOE has not scheduled a public hearing.

List of Subjects in 10 CFR Part 600

Accounting; Administrative practice and procedure; Government

contracts; Grant programs, Indians, Intergovernmental relations; Loan

programs, Lobbying; Penalties; Reporting and recordkeeping

requirements.

Issued in Washington, D.C., on July 31, 1995.

Richard H. Hopf,

Deputy Assistant Secretary for Procurement and Assistance Management.

a public hearing.

List of Subjects in 10 CFR Part 600

Accounting; Administrative practice and procedure; Government

contracts; Grant programs, Indians, Intergovernmental relations; Loan

programs, Lobbying; Penalties; Reporting and recordkeeping

requirements.

Issued in Washington, D.C., on July 31, 1995.

Richard H. Hopf,

Deputy Assistant Secretary for Procurement and Assistance Management.

For the reasons set out in the preamble, Part 600 of Chapter II,

Title 10 of the Code of Federal Regulations is proposed to be amended

as set forth below:

PART 600--FINANCIAL ASSISTANCE RULES

1. The authority citation for Part 600 continues to read as

follows:

Authority: Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599 (42

U.S.C. 7254 and 7256); Pub. L. 97-258, 96 Stat. 1003-1005 (31 U.S.C.

6301-6308), unless otherwise noted.

Subparts D and E--[Amended]

2. The existing Subpart D ``Cooperative Agreements'' is removed and

Subpart E ``Audits of State and Local Governments'' is redesignated as

Subpart D, and Secs. 600.400 through 600.417 are redesignated as

Secs. 600.300 through 600.317.

Sec. 600.112 [Amended]

3. Section 600.112(c) is amended by revising the parenthetical

phrase ``(See Section 600.31(b) and (c))'' to read ``(See Section

600.26(b) and (c)).''

4. Section 600.136 is revised to read as follows:

Sec. 600.136 Intangible property.

(a) Recipients that are institutions of higher education,

hospitals, and other non-profit organizations are subject to the

following:

(1) The recipient may copyright any work that is subject to

copyright and was developed, or for which ownership was purchased,

under an award. DOE reserves a royalty-free, nonexclusive and

irrevocable right to reproduce, publish or otherwise use the work for

Federal purposes, and to authorize others to do so.

(2) Recipients are subject to applicable regulations governing

patents and inventions. (See 10 CFR 600.27)

(3) DOE has the right to:

ubject to

copyright and was developed, or for which ownership was purchased,

under an award. DOE reserves a royalty-free, nonexclusive and

irrevocable right to reproduce, publish or otherwise use the work for

Federal purposes, and to authorize others to do so.

(2) Recipients are subject to applicable regulations governing

patents and inventions. (See 10 CFR 600.27)

(3) DOE has the right to:

(i) Obtain, reproduce, publish or otherwise use the data first

produced under an award.

(ii) Authorize others to receive, reproduce, publish, or otherwise

use such data for Federal purposes.

(4) Title to intangible property and debt instruments acquired

under an award or subaward vests upon acquisition in the recipient. The

recipient shall use that property for the originally-authorized

purpose, and the recipient shall not encumber the

property without approval of DOE. When no longer needed for the

originally authorized purpose, disposition of the intangible property

shall occur in accordance with the provisions of Section 600.134(g).

(b) Recipients that are commercial entities shall follow the

provisions set forth at 10 CFR 600.27.

Sec. 600.302 [Amended]

5. Newly redesignated Sec. 600.302 is amended in paragraph (d) by

revising ``Sections 600.25, 600.153, 600.242, and 600.305'' to read

``Sections 600.21, 600.153, and 600.242''.

Sec. 600.303 [Amended]

6. In paragraph (c), of newly redesignated Sec. 600.303 revise

``Sections 600.126, 600.226, and 600.305'' to read ``Sections 600.126

and 600.226''.

Sec. 600.305 [Amended]

7. In newly redesignated Sec. 600.305(b)(2)(ii)(C), revise

``Section 600.424 of subpart E'' to read ``Section 600.324 of subpart

D''.

Sec. 600.315 [Amended]

8. Newly redesignated Sec. 600.315 is amended, in the first

sentence, by revising ``Section 600.436 of subpart E'' to read

``Section 600.336 of subpart D''.

9. Subpart A is revised to read as follows:

Subpart A--General

05 [Amended]

7. In newly redesignated Sec. 600.305(b)(2)(ii)(C), revise

``Section 600.424 of subpart E'' to read ``Section 600.324 of subpart

D''.

Sec. 600.315 [Amended]

8. Newly redesignated Sec. 600.315 is amended, in the first

sentence, by revising ``Section 600.436 of subpart E'' to read

``Section 600.336 of subpart D''.

9. Subpart A is revised to read as follows:

Subpart A--General

Sec.

600.1 Purpose.

600.2 Applicability.

600.3 Definitions.

600.4 Deviations.

600.5 Selection of award instrument.

600.6 Eligibility.

600.7 Small and disadvantaged and women-owned business

participation.

600.8 Solicitation.

600.9 Notice of program interest.

600.10 Form and content of applications.

600.11 Intergovernmental review.

600.12 Generally applicable requirements.

600.13 Objective merit review.

600.14 Conflict of interest.

600.15 Authorized uses of information.

600.16 Legal authority and effect of an award.

600.17 Contents of award.

600.18 Recipient acknowledgement of award.

600.19 Notification to unsuccessful applicants.

600.20 Maximum DOE obligation.

600.21 Access to records.

600.22 Disputes and appeals.

600.23 Debarment and suspension.

600.24 Noncompliance.

600.25 Suspension and termination.

600.26 Funding.

600.27 Patent and data provisions.

600.28 New restrictions on lobbying.

600.29 Fixed obligation awards.

600.30 Cost sharing.

Subpart A--General

Sec. 600.1 Purpose.

This part implements the Federal Grant and Cooperative Agreement

Act, Pub. L. 95-224, as amended by Public Law 97-258 (31 U.S.C. 6301-

6308), and establishes uniform policies and procedures for the award

and administration of DOE grants and cooperative agreements. This

subpart (Subpart A) sets forth the policies and procedures applicable

to the award and administration of grants and cooperative agreements.

Sec. 600.2 Applicability.

(a) Except as otherwise provided by Federal statute or program

rule, this part applies to applications, solicitations, and new,

continuation, and renewal awards (and any subsequent subawards).

s and cooperative agreements. This

subpart (Subpart A) sets forth the policies and procedures applicable

to the award and administration of grants and cooperative agreements.

Sec. 600.2 Applicability.

(a) Except as otherwise provided by Federal statute or program

rule, this part applies to applications, solicitations, and new,

continuation, and renewal awards (and any subsequent subawards).

(b) Any new, continuation, or renewal award (and any subsequent

subaward) shall comply with any applicable Federal statute, Federal

rule, Office of Management and Budget (OMB) Circular and Governmentwide

guidance in effect as of the date of such award.

(c) Financial assistance to foreign entities is governed by this

part and by the administrative requirements and cost principles

applicable to their respective recipient type, e.g, governmental, non-

profit, commercial, to the extent appropriate.

Sec. 600.3 Definitions.

Amendment means the written document executed by a DOE contracting

officer that changes one or more terms or conditions of an existing

financial assistance award.

Assistance means the transfer of money, property, services or

anything of value to a recipient to accomplish a public purpose of

support or stimulation authorized by Federal statute, as differentiated

from financial assistance which covers the transfer of money or

property only. Financial assistance instruments are grants and

cooperative agreements and subawards.

Award means the written document executed by a DOE Contracting

Officer, after an application is approved, which contains the terms and

conditions for providing financial assistance to the recipient.

Budget period means the interval of time, specified in the award,

into which a project is divided for budgeting and funding purposes.

Continuation award means an award for a succeeding or subsequent

budget period after the initial budget period of either an approved

project period or renewal thereof

which contains the terms and

conditions for providing financial assistance to the recipient.

Budget period means the interval of time, specified in the award,

into which a project is divided for budgeting and funding purposes.

Continuation award means an award for a succeeding or subsequent

budget period after the initial budget period of either an approved

project period or renewal thereof.

Contract means a written procurement contract executed by a

recipient or subrecipient for the acquisition of property or services

under a financial assistance award.

Contracting Officer means the DOE official authorized to execute

awards on behalf of DOE and who is responsible for the business

management and non-program aspects of the financial assistance process.

DOE Patent Counsel means the Department of Energy Patent Counsel

assisting the Contracting Officer in the review and coordination of

patents and data related items.

Nonprofit organization means any corporation, trust, foundation, or

institution which is entitled to exemption under section 501(c)(3) of

the Internal Revenue Code, or which is not organized for profit and no

part of the net earnings of which inure to the benefit of any private

shareholder or individual (except that the definition of ``nonprofit

organization'' at 48 CFR 27.301 shall apply to the use of the patent

clause at Section 600.27).

Objective merit review means a thorough, consistent and independent

examination of applications based on pre-established criteria by

persons knowledgeable in the field of endeavor for which support is

requested.

Program rule means a rule issued by a DOE program office for the

award and administration of financial assistance which may describe the

program's purpose or objectives, eligibility requirements for

applicants, types of program activities or areas to be supported,

evaluation and selection process, cost sharing requirements, etc

dgeable in the field of endeavor for which support is

requested.

Program rule means a rule issued by a DOE program office for the

award and administration of financial assistance which may describe the

program's purpose or objectives, eligibility requirements for

applicants, types of program activities or areas to be supported,

evaluation and selection process, cost sharing requirements, etc. These

rules usually supplement the generic policies and procedures for

financial assistance contained in this part.

Project period means the total period of time indicated in an award

during which DOE expects to provide financial assistance. A project

period may consist of one or more budget periods and may be extended by

DOE.

Recipient means the organization, individual, or other entity that

receives an award from DOE and is financially accountable for the use

of any DOE funds or property provided for the performance of the

project, and is legally responsible for carrying out the terms and

conditions of the award.

Renewal award means an award which adds one or more additional

budget periods to an existing project period.

Research and development means all research activities, both basic

and applied, and all development activities that are supported at

universities,

colleges, and other non-profit institutions and commercial

organizations. ``Research'' is defined as a systematic study directed

toward fuller scientific knowledge or understanding of the subject

studied. The term research also includes activities involving the

training of individuals in research techniques where such activities

utilize the same facilities as other research and development

activities and where such activities are not included in the

instruction function. ``Development'' is the systematic use of

knowledge and understanding gained from research directed toward the

production of useful materials, devices, systems, or methods, including

design and development of prototypes and processes.

Sec. 600.4 Deviations.

the same facilities as other research and development

activities and where such activities are not included in the

instruction function. ``Development'' is the systematic use of

knowledge and understanding gained from research directed toward the

production of useful materials, devices, systems, or methods, including

design and development of prototypes and processes.

Sec. 600.4 Deviations.

(a) General. (1) A deviation is the use of any policy, procedure,

form, standard, term, or condition which varies from a requirement of

this part, or the waiver of any such requirement, unless such use or

waiver is authorized or precluded by Federal statute. The use of

optional or discretionary provisions of this part, including special

restrictive conditions used in accordance with Sections 600.114 and

600.212, are not deviations. The waiver provisions of the patent

requirements of Section 600.27 and awards to foreign entities are not

subject to the requirements of this section.

(2) A single-case deviation is a deviation which applies to one

financial assistance transaction and one applicant, recipient, or

subrecipient only.

(3) A class deviation is a deviation which applies to more than one

financial assistance transaction, applicant, recipient, or

subrecipient.

(b) The DOE officials specified in paragraph (c) of this section

may authorize a deviation only upon a written determination that the

deviation is--

(1) Necessary to achieve program objectives;

(2) Necessary to conserve public funds;

(3) Otherwise essential to the public interest; or

(4) Necessary to achieve equity.

(c) Approval procedures. (1) A deviation request must be in writing

and must be submitted to the responsible DOE Contracting Officer. An

applicant for a subaward or a subrecipient shall submit any such

request through the recipient.

(2) Except as provided in paragraph (c)(3) of this section--

e public funds;

(3) Otherwise essential to the public interest; or

(4) Necessary to achieve equity.

(c) Approval procedures. (1) A deviation request must be in writing

and must be submitted to the responsible DOE Contracting Officer. An

applicant for a subaward or a subrecipient shall submit any such

request through the recipient.

(2) Except as provided in paragraph (c)(3) of this section--

(i) A single-case deviation may be authorized by the responsible

Head of Contracting Activity (HCA). Any proposed single-case deviation

from the requirements of Section 600.27 concerning patents or data

shall be referred to the DOE Patent Counsel for review and concurrence

prior to submission to the HCA.

(ii) A class deviation may be authorized by the Deputy Assistant

Secretary for Procurement and Assistance Management or his or her

designee.

(3) Whenever the approval of OMB, other Federal agency, or other

DOE office is required to authorize a deviation, the proposed deviation

must be submitted to the Deputy Assistant Secretary for Procurement and

Assistance Management or designee for concurrence prior to submission

to the authorizing official. Any proposed class deviation from the

requirements of Section 600.27 concerning patents or data shall be

forwarded through the Assistant General Counsel for Technology Transfer

and Intellectual Property or designee.

(d) Notice. Whenever a request for a class deviation is approved,

DOE shall publish a notice in the Federal Register at least 15 days

before the class deviation becomes effective. Whenever a class

deviation is contained in a proposed program rule, the preamble to the

proposed rule shall describe the purpose and scope of the deviation.

(e) Subawards. A recipient may use a deviation in a subaward only

with the prior written approval of a DOE Contracting Officer.

Sec. 600.5 Selection of award instrument.

ster at least 15 days

before the class deviation becomes effective. Whenever a class

deviation is contained in a proposed program rule, the preamble to the

proposed rule shall describe the purpose and scope of the deviation.

(e) Subawards. A recipient may use a deviation in a subaward only

with the prior written approval of a DOE Contracting Officer.

Sec. 600.5 Selection of award instrument.

(a) If DOE has administrative discretion in the selection of the

award instrument, the DOE decision as to whether the relationship is

principally one of procurement or assistance shall be made pursuant to

the Federal Grant and Cooperative Agreement Act as codified at 31

U.S.C. 6301-6306. A grant or cooperative agreement shall be the

appropriate instrument, in accordance with this part, when the

principal purpose of the relationship is the transfer of money or

property to accomplish a public purpose of support or stimulation

authorized by Federal statute. DOE shall limit involvement between

itself and the recipient in the performance of a project to the minimum

necessary to achieve DOE program objectives.

(b) When it is anticipated that substantial involvement will be

necessary between DOE and the recipient during performance of the

contemplated activity, the award instrument shall be a cooperative

agreement rather than a grant. Substantial involvement exists if:

(1) Responsibility for the management, control, or direction of the

project is shared by DOE and the recipient, or

(2) Responsibility for the performance of the project is shared by

DOE and the recipient, or

(3) DOE has the right to intervene in the conduct or performance of

project activities for programmatic reasons. Intervention includes the

interruption or modification of the conduct or performance of project

activities. Suspension or termination of the cooperative agreement

under Sections 600.162 and 600.243 does not constitute intervention in

the conduct or performance of project activities.

3) DOE has the right to intervene in the conduct or performance of

project activities for programmatic reasons. Intervention includes the

interruption or modification of the conduct or performance of project

activities. Suspension or termination of the cooperative agreement

under Sections 600.162 and 600.243 does not constitute intervention in

the conduct or performance of project activities.

(4) Providing technical assistance or guidance of a programmatic

nature to a recipient does not constitute substantial involvement if

the recipient is not required to follow such guidance or if the

technical assistance or guidance is not expected to result in

continuing DOE involvement in the performance of the project.

(5) Technical assistance or guidance which pertains to the

administrative requirements of the award does not constitute

substantial involvement.

(c) Every cooperative agreement shall explicitly state the

substantial involvement anticipated between DOE and the recipient

during performance of the project.

Sec. 600.6 Eligibility.

(a) General. DOE shall solicit applications for financial

assistance in a manner which provides for the maximum amount of

competition feasible.

(b) Restricted eligibility. If DOE restricts eligibility, an

explanation of why the restriction of eligibility is considered

necessary shall be included in the solicitation, program rule, or

published notice. If the aggregate amount of DOE funds available for

award under such a solicitation or published notice is $1,000,000 or

more such restriction of eligibility shall be supported by a written

determination initiated by the program office and approved by an

official no less than two levels above the initiating program official

and concurred in by the Contracting Officer and legal counsel. If the

amount of DOE funds is less than $1,000,000, the cognizant HCA and the

Contracting Officer may approve the determination.

ore such restriction of eligibility shall be supported by a written

determination initiated by the program office and approved by an

official no less than two levels above the initiating program official

and concurred in by the Contracting Officer and legal counsel. If the

amount of DOE funds is less than $1,000,000, the cognizant HCA and the

Contracting Officer may approve the determination.

(c) DOE may award a grant or cooperative agreement on a

noncompetitive basis only if the

application satisfies one or more of the following selection criteria.

(1) The activity to be funded is necessary to the satisfactory

completion of, or is a continuation or renewal of, an activity

presently being funded by DOE or another Federal agency, and for which

competition for support would have a significant adverse effect on

continuity or completion of the activity.

(2) The activity is being or would be conducted by the applicant

using its own resources or those donated or provided by third parties;

however, DOE support of that activity would enhance the public benefits

to be derived and DOE knows of no other entity which is conducting or

is planning to conduct such an activity.

(3) The applicant is a unit of government and the activity to be

supported is related to performance of a governmental function within

the subject jurisdiction, thereby precluding DOE provision of support

to another entity.

(4) The applicant has exclusive domestic capability to perform the

activity successfully, based upon unique equipment, proprietary data,

technical expertise, or other such unique qualifications.

(5) The award implements an agreement between the United States

Government and a foreign government to fund a foreign applicant.

(6) Time constraints associated with a public health, safety,

welfare or national security requirement preclude competition.

perform the

activity successfully, based upon unique equipment, proprietary data,

technical expertise, or other such unique qualifications.

(5) The award implements an agreement between the United States

Government and a foreign government to fund a foreign applicant.

(6) Time constraints associated with a public health, safety,

welfare or national security requirement preclude competition.

(7) The proposed project represents a unique or innovative idea,

method, or approach which would not be eligible for financial

assistance under a recent, current, or planned solicitation, and if, as

determined by DOE, a competitive solicitation would not be appropriate.

(8) The responsible program Assistant Secretary (or official of

equivalent authority), with the approval of the Deputy Assistant

Secretary for Procurement and Assistance Management, determines that a

noncompetitive award is in the public interest. This authority may not

be delegated.

(d) Documentation requirements. A determination of noncompetitive

financial assistance (normally prepared by the responsible program

official (project officer)) is required to explain the basis for the

proposed noncompetitive award and shall be placed in the award file.

(e) Approval requirements. Determinations of noncompetitive awards

shall be approved, prior to award, by the initiating program official,

by the responsible program Assistant Secretary (or official of

equivalent authority) or designee, who shall be not less than two

organizational levels above that of the project officer, by the

Contracting Officer and shall be concurred in by local legal counsel.

Where the amount of DOE funds is less than $1,000,000 for a

noncompetitive financial assistance award, the determination shall be

approved by the cognizant HCA and the Contracting Officer. Concurrence

may be waived by local legal counsel.

Sec. 600.7 Small and disadvantaged and women-owned business

participation.

r, by the

Contracting Officer and shall be concurred in by local legal counsel.

Where the amount of DOE funds is less than $1,000,000 for a

noncompetitive financial assistance award, the determination shall be

approved by the cognizant HCA and the Contracting Officer. Concurrence

may be waived by local legal counsel.

Sec. 600.7 Small and disadvantaged and women-owned business

participation.

(a) DOE encourages the participation in financial assistance awards

of small businesses, including those owned by socially and economically

disadvantaged individuals and women, of historically black colleges,

and of colleges and universities with substantial minority enrollments.

(b) For definitions of the terms in paragraph (a) of this section,

see the Higher Education Act of 1965, and 15 U.S.C. 644, as amended by

the Federal Acquisition Streamlining Act, and implementing regulations

under FASA issued by the Office of Federal Procurement Policy.

(c) DOE shall require recipients and subrecipients to take

affirmative action with respect to such entities in contracts under

financial assistance awards and subawards as required under Sections

600.144 and 600.236.

Sec. 600.8 Solicitation.

(a) General. A solicitation for financial assistance applications

shall be in the form of a program rule or other publicly available

document which invites the submission of applications by a common due

date or within a prescribed period of time.

ch entities in contracts under

financial assistance awards and subawards as required under Sections

600.144 and 600.236.

Sec. 600.8 Solicitation.

(a) General. A solicitation for financial assistance applications

shall be in the form of a program rule or other publicly available

document which invites the submission of applications by a common due

date or within a prescribed period of time.

(1) A Program Assistant Secretary (or official of equivalent

authority) may annually issue a program notice describing research

areas in which financial assistance is being made available. Such

notice shall also state whether the research areas covered by the

notice are to be added to those listed in a previously issued program

rule. If they are to be included, then applications received as a

result of the notice may be treated as having been in response to that

previously published program rule. If they are not to be included, then

applications received in response to the notice are to be treated as

unsolicited applications. Solicitations may be issued by a DOE

Contracting Officer or program office with prior concurrence of the

contracting office.

(2) DOE shall publish either a copy or a notice of the availability

of a financial assistance solicitation in the Federal Register. DOE

shall publish solicitations or notices in the Commerce Business Daily

when potential applicants include for-profit organizations or when

there is the potential for significant contracting opportunities under

the resulting financial assistance awards.

(b) Subawards. In accordance with the provisions of the applicable

statute and program rules, if a DOE financial assistance program

involves the award of financial assistance by a recipient to a

subrecipient, the recipient shall provide sufficient advance notice so

that potential subrecipients may prepare timely applications and secure

prerequisite reviews and approvals.

l assistance awards.

(b) Subawards. In accordance with the provisions of the applicable

statute and program rules, if a DOE financial assistance program

involves the award of financial assistance by a recipient to a

subrecipient, the recipient shall provide sufficient advance notice so

that potential subrecipients may prepare timely applications and secure

prerequisite reviews and approvals.

(c) Contents of solicitation. Each solicitation shall include the

following types of information and such other information as may be

necessary to allow potential applicants to decide whether to submit an

application, to understand how applications will be evaluated, and to

know what the obligations of a recipient would be.

(1) A control number assigned by the issuing DOE office;

(2) The amount of money available for award and, if appropriate,

the expected size of individual awards broken down by areas of priority

or emphasis, and the expected number of awards;

(3) The type of award instrument or instruments to be used;

(4) Catalog of Federal Domestic Assistance number for the program;

(5) Who is eligible to apply;

(6) The expected duration of DOE support or the period of

performance;

(7) Application form or format to be used, location for application

submission, and number of copies required;

(8) The name of the responsible DOE Contracting Officer (or, for

program notices or solicitations issued by the program office, the

program office contact) to contact for additional information, and, as

appropriate, an address where application forms may be obtained;

f

performance;

(7) Application form or format to be used, location for application

submission, and number of copies required;

(8) The name of the responsible DOE Contracting Officer (or, for

program notices or solicitations issued by the program office, the

program office contact) to contact for additional information, and, as

appropriate, an address where application forms may be obtained;

(9) Whether loans are available under the DOE Minority Economic

Impact (MEI) loan program, 10 CFR part 800, to finance the cost of

preparing a financial assistance application, and, if MEI loans are

available, a general description of the eligibility requirements for

such a loan, a reference to Catalog of Federal Domestic Assistance

Number 81.063, and the name and address of the DOE office from which

additional information and loan application forms can be obtained;

(10) Appropriate periods or due dates for submission of

applications and a statement describing the consequences

of late submission. If programs have established a series of due dates

to allow for the comparison of applications against each other, these

dates shall be indicated in the solicitation;

(11) The types of projects or activities eligible for support;

(12) Evaluation criteria and the weight or relative importance of

each, which may include one or more of the following or other criteria,

as appropriate:

(i) Qualifications of the applicant's personnel who will be working

on the project;

(ii) Adequacy of the applicant's facilities and resources;

(iii) Cost-effectiveness of the project;

(iv) Adequacy of the project plan or methodology;

ort;

(12) Evaluation criteria and the weight or relative importance of

each, which may include one or more of the following or other criteria,

as appropriate:

(i) Qualifications of the applicant's personnel who will be working

on the project;

(ii) Adequacy of the applicant's facilities and resources;

(iii) Cost-effectiveness of the project;

(iv) Adequacy of the project plan or methodology;

(v) Management capability of the applicant;

(vi) Sources of financing available to the project. Any expectation

concerning cost sharing shall be clearly stated. While cost sharing is

generally encouraged, it shall not be considered in the evaluation

process and shall be considered only at the time the award is

negotiated, unless the cost sharing expectation is addressed in the

solicitation.

(vii) Relationship of the proposed project to the objectives of the

solicitation;

(13) A listing of program policy factors, if any, indicating the

relative importance of each, if appropriate. Examples of program policy

factors are:

(i) Geographic distribution;

(ii) Diverse types and sizes of applicant entities;

(iii) A diversity of methods, approaches, or kinds of work; and

(iv) Projects which are complementary to other DOE programs or

projects;

(14) References to or copies of:

(i) Statutory authority for the program;

(ii) Applicable rules, including the appropriate subparts of this

part;

(iii) Other terms and conditions applicable to awards to be made

under the solicitation, including allowable and unallowable costs and

reporting requirements;

(iv) Policies and procedures for patents, data, copyrights,

audiovisual productions and exhibits;

ences to or copies of:

(i) Statutory authority for the program;

(ii) Applicable rules, including the appropriate subparts of this

part;

(iii) Other terms and conditions applicable to awards to be made

under the solicitation, including allowable and unallowable costs and

reporting requirements;

(iv) Policies and procedures for patents, data, copyrights,

audiovisual productions and exhibits;

(v) Any required assurances not included in the application form;

(15) The deadline for submission of required or optional

preapplications;

(16) Date, time, and location of any briefing for applicants;

(17) Required presubmission reviews and clearances, including a

statement as to whether review under E.O. 12372, ``Intergovernmental

Review of Federal Programs'', is required.

(18) Dates by which selections and awards are expected to be made

and whether unsuccessful applications will be returned to the applicant

or be retained by DOE and for what period of time;

(19) A statement that DOE is under no obligation to pay for any

costs associated with preparation or submission of applications if an

award is not made. If an award is made, such costs may be allowable as

provided in the applicable cost principles (See Sections 600.127 and

600.222);

(20) A statement that DOE reserves the right to fund, in whole or

in part, any, all, or none of the applications submitted in response to

the solicitation; and

(21) Any other relevant information, including explanatory

information or factual basis for justifications required by this part.

Sec. 600.9 Notice of program interest.

(a) General. (1) DOE may publish periodic Notices of Program

Interest in the Federal Register and other media, as appropriate, which

describes broad, general, technical problems and areas of investigation

for which DOE may award grants or cooperative agreements.

(2) DOE shall evaluate any application submitted under a Notice of

Program Interest as an unsolicited application.

ogram interest.

(a) General. (1) DOE may publish periodic Notices of Program

Interest in the Federal Register and other media, as appropriate, which

describes broad, general, technical problems and areas of investigation

for which DOE may award grants or cooperative agreements.

(2) DOE shall evaluate any application submitted under a Notice of

Program Interest as an unsolicited application.

(b) Contents. The notice shall include the following:

(1) A brief description of the areas of interest for which DOE may

provide financial assistance.

(2) A statement about how resulting applications will be evaluated

and the criteria for selection and funding.

(3) An expiration date with an explanation that such a date does

not represent a common deadline for applications but rather that

applications may be submitted at any time before the notice expires.

(4) The location for application submission.

Sec. 600.10 Form and content of applications.

(a) General. Applications shall be required for all financial

assistance projects or programs.

(b) Forms. Applications shall be on the form or in the format and

in the number of copies specified by DOE. (See Sections 600.112 and

600.210)

(c) Contents of an application. In general, a financial assistance

application shall include:

(1) A facesheet containing basic identifying information. The

facesheet shall be the Standard Form (SF) 424;

(2) A detailed narrative description of the proposed project,

including the objectives of the project and the applicant's plan for

carrying it out;

(3) A budget with supporting justification

(4) Any required preaward assurances.

(d) Incomplete applications. DOE may return an application which is

not signed by an authorized official and does not include all

information and documentation required by statute, program rule, and

the solicitation, if the nature of the omission precludes review of the

application.

s plan for

carrying it out;

(3) A budget with supporting justification

(4) Any required preaward assurances.

(d) Incomplete applications. DOE may return an application which is

not signed by an authorized official and does not include all

information and documentation required by statute, program rule, and

the solicitation, if the nature of the omission precludes review of the

application.

(e) Supplemental information. During the review of a complete

application, DOE may request the submission of additional information

only if the information is essential to evaluate the application.

Sec. 600.11 Intergovernmental review.

Intergovernmental review of DOE financial assistance shall be

conducted in accordance with 10 CFR part 1005.

Sec. 600.12 Generally applicable requirements.

(a) Generally applicable requirements means Federal policies or

administrative requirements that apply to more than one DOE financial

assistance award, or a DOE financial assistance program and one or more

other Federal assistance programs. Generally applicable requirements

include, but are not limited to, the requirements of this part, Federal

statutes, the OMB Circulars and other Governmentwide guidance

implemented by this part, Executive Orders, and the requirements

identified in appendix A of this subpart.

(b) Except as expressly exempted by Federal statute or program

rule, recipients and subrecipients of DOE financial assistance shall

comply with all generally applicable requirements to which, by the

terms of such requirements, they are subject.

irculars and other Governmentwide guidance

implemented by this part, Executive Orders, and the requirements

identified in appendix A of this subpart.

(b) Except as expressly exempted by Federal statute or program

rule, recipients and subrecipients of DOE financial assistance shall

comply with all generally applicable requirements to which, by the

terms of such requirements, they are subject.

(c) Provisions shall be made to design and construct all buildings,

in which DOE funds are used, to meet appropriate seismic design and

construction standards. Seismic codes and standards meeting or

exceeding the provisions of each of the model codes listed in this

paragraph are considered to be appropriate for purposes of this part.

The model codes are as follows:

(1) 1991 Uniform Building Code, of the International Council of

Building Officials,

(2) 1992 Supplement to the National Building Code, of the Building

Official and Code Administrators International.

(3) 1992 Amendments to the Standard Building Code, of the Southern

Building Code Congress International.

These codes provide a level of seismic safety that is substantially

equivalent to

the National Earthquake Hazards Reduction Program (NEHRP) Recommended

Provisions for the Development of Seismic Regulations for New

Buildings, 1988 Edition (Federal Emergency Management Administration

222 and 223). Revisions of these model codes that are substantially

equivalent to or exceed the then current or immediately preceding

edition of the NEHRP Recommended Provisions (which are updated

triennially) shall be considered to be appropriate standards.

Sec. 600.13 Objective merit review.

of Seismic Regulations for New

Buildings, 1988 Edition (Federal Emergency Management Administration

222 and 223). Revisions of these model codes that are substantially

equivalent to or exceed the then current or immediately preceding

edition of the NEHRP Recommended Provisions (which are updated

triennially) shall be considered to be appropriate standards.

Sec. 600.13 Objective merit review.

(a) General. (1) It is the policy of DOE that any financial

assistance be awarded through a merit-based selection process.

Objective merit review means a thorough, consistent and independent

examination of applications based on pre-established criteria by

persons knowledgeable in the field of endeavor for which support is

requested.

(2) Each program office must establish an objective merit review

system covering the financial assistance programs it administers.

Objective merit review of financial assistance applications is intended

to be advisory and is not intended to replace the authority of the

program official with responsibility for deciding whether an award will

be made. It is expected that the cognizant project/program officer who

normally also reviews the proposals for technical/scientific merit,

will review it from a program policy perspective. The objective merit

review system must set forth the relationship between the reviewing

individuals, or the review committees or groups, and the official who

has the final decision-making authority. In defining this relationship,

the system must set out, as a minimum, the decision-making and

documentation processes to be followed by the authorized official

responsible for selection when an adverse recommendation has been

received through the objective merit review process.

wing

individuals, or the review committees or groups, and the official who

has the final decision-making authority. In defining this relationship,

the system must set out, as a minimum, the decision-making and

documentation processes to be followed by the authorized official

responsible for selection when an adverse recommendation has been

received through the objective merit review process.

(b) Each formal review system must contain the elements listed

below.

(1) Basic review standards. Each application may be assessed from a

policy/programmatic perspective prior to undergoing merit review. Those

that meet policy and programmatic considerations shall generally be

reviewed by at least three qualified persons in addition to the

official responsible for selection.

(ii) The reviewers of any particular application may be any mixture

of federal or non-federal experts, including individuals from within

the cognizant program office, except those involved in approving/

disapproving the application. The DOE shall select external (non-DOE

Federal or non-federal) reviewers on the basis of their professional

qualifications and expertise.

(c) Review summary. Upon request, applicants are to be provided

with a written summary of the evaluation of their application.

(d) Reviewers with interest in application being reviewed.

Reviewers must comply with the requirements for the avoidance of

conflict of interest established in Section 600.14.

or non-federal) reviewers on the basis of their professional

qualifications and expertise.

(c) Review summary. Upon request, applicants are to be provided

with a written summary of the evaluation of their application.

(d) Reviewers with interest in application being reviewed.

Reviewers must comply with the requirements for the avoidance of

conflict of interest established in Section 600.14.

(e) Outside reviewers. An outside reviewer shall be required to

sign a written statement agreeing to use the application information

only for review and to treat it in confidence except to the extent that

the information is available to the general public without restriction

as to its use from any source, including the applicant. Further, the

reviewer shall be required to agree to comply with any notice or

restriction placed on the application. Upon completion of the review

the reviewer shall return all copies of the application (or abstracts,

if any) to DOE; and unless authorized by DOE, the reviewer shall not

contact the applicant concerning any aspect of the application.

Sec. 600.14 Conflict of interest.

Any person who participates in the review of applications for DOE

financial assistance or in the administration of DOE financial

assistance shall comply with 1010.101(a) and 1010.302(a)(1) of the DOE

rules on the conduct of employees and special employees (consultants)

at 10 CFR part 1010. Current and former DOE employees who participate

in any aspect of the financial assistance process shall comply with all

applicable requirements of 10 CFR part 1010.

Sec. 600.15 Authorized uses of information.

ation of DOE financial

assistance shall comply with 1010.101(a) and 1010.302(a)(1) of the DOE

rules on the conduct of employees and special employees (consultants)

at 10 CFR part 1010. Current and former DOE employees who participate

in any aspect of the financial assistance process shall comply with all

applicable requirements of 10 CFR part 1010.

Sec. 600.15 Authorized uses of information.

(a) General. Information contained in applications shall be used

only for evaluation purposes unless such information is generally

available to the public or is already the property of the Government.

DOE employees may not disclose confidential information under the

provisions of 18 U.S.C. 1905 including trade secrets, technical data,

and or privileged or confidential commercial or financial information.

(b) Treatment of application information. (1) An application may

include technical data and other data, including trade secrets and/or

privileged or confidential commercial or financial information, which

the applicant does not want disclosed to the public or used by the

Government for any purpose other than application evaluation. To

protect such data, the applicant should specifically identify each page

including each line or paragraph thereof containing the data to be

protected and mark the cover sheet of the application with the

following Notice as well as referring to the Notice on each page to

which the Notice applies.

Notice of Restriction on Disclosure and Use of Data

urpose of evaluating the proposal. The data so

marked shall not be disclosed or used for any other purpose except to

the extent provided in any resulting award, or to the extent required

by law, including the Freedom of Information Act (5 U.S.C. 552) (10 CFR

part 1004). The Government shall not be liable for disclosure or use of

unmarked data and may use or disclose such data for any purpose.

(4) The Government shall obtain unlimited rights in the technical

data contained in any application which results in an award except

those portions of the technical data which the applicant asserts and

properly marks as proprietary data, or which are not directly related

to or will not be utilized in the project and are deleted from the

application with the concurrence of DOE.

(5) The clause at 48 CFR 52.227-23, which applies only to technical

data and not to other data such as privileged or confidential

commercial or financial information shall apply to every award.

Sec. 600.16 Legal authority and effect of an award.

(a) A DOE financial assistance award is valid only if it is in

writing and is signed by a DOE Contracting Officer.

(b) DOE funds awarded under a grant or cooperative agreement shall

be

obligated as of the date the DOE Contracting Officer signs the award;

however, the recipient is not authorized to incur costs under an award

prior to the beginning date of the budget period shown in the award

except as may be authorized in accordance with Sections 600.125(e) or

600.230 of this part. The duration of the DOE financial obligation

shall not extend beyond the expiration date of the budget period shown

in the award unless authorized by a DOE Contracting Officer by means of

a continuation or renewal award or other extension of the budget

period.

Sec. 600.17 Contents of award.

the award

except as may be authorized in accordance with Sections 600.125(e) or

600.230 of this part. The duration of the DOE financial obligation

shall not extend beyond the expiration date of the budget period shown

in the award unless authorized by a DOE Contracting Officer by means of

a continuation or renewal award or other extension of the budget

period.

Sec. 600.17 Contents of award.

Each financial assistance award shall be made on a Notice of

Financial Assistance Award (DOE F 4600.1) which contains basic

identifying and funding information together with attachments including

a budget, any special terms and conditions, and any other provisions

necessary to establish the respective right, duties, obligation, and

responsibilities of DOE and the recipient, consistent with the

requirements of this part.

Sec. 600.18 Recipient acknowledgement of award.

(a) After signature by the DOE Contracting Officer, the award shall

be sent to the applicant. The applicant shall be required to return a

signed copy of the award acknowledging acceptance. No DOE funds shall

be disbursed until the award document signed by the recipient is

received by DOE.

(b) In the event an applicant declines an award or fails to

acknowledge acceptance of an award, DOE shall deobligate the funds

obligated by the award after providing the applicant with at least two

weeks written notice of DOE's intention to deobligate.

y of the award acknowledging acceptance. No DOE funds shall

be disbursed until the award document signed by the recipient is

received by DOE.

(b) In the event an applicant declines an award or fails to

acknowledge acceptance of an award, DOE shall deobligate the funds

obligated by the award after providing the applicant with at least two

weeks written notice of DOE's intention to deobligate.

(c) After the recipient acknowledges the award, the terms and

conditions of the award may be amended only upon the written request or

with the written concurrence of the recipient unless the amendment is

one which DOE may make unilaterally in accordance with a program rule

or this part.

Sec. 600.19 Notification to unsuccessful applicants.

DOE shall promptly notify in writing each applicant whose

application has not been selected for award or whose application cannot

be funded because of the unavailability of appropriated funds. If the

application was not selected, the written notice shall briefly explain

why the application was not selected and, if for grounds other than

unavailability of funds, shall offer the unsuccessful applicant the

opportunity for a more detailed explanation upon request.

Sec. 600.20 Maximum DOE obligation.

The maximum DOE obligation to the recipient is--

(a) For monetary awards, the amount shown in the award as the

amount of DOE funds obligated, and

(b) Any designated property.

(c) DOE shall not be obligated to make any additional,

supplemental, continuation, renewal, or other award for the same or any

other purpose.

Sec. 600.21 Access to records.

quest.

Sec. 600.20 Maximum DOE obligation.

The maximum DOE obligation to the recipient is--

(a) For monetary awards, the amount shown in the award as the

amount of DOE funds obligated, and

(b) Any designated property.

(c) DOE shall not be obligated to make any additional,

supplemental, continuation, renewal, or other award for the same or any

other purpose.

Sec. 600.21 Access to records.

(a) In addition to recipient and subrecipient responsibilities

relative to access to records specified in Sections 600.153 and

600.242, for any negotiated contract or subcontract in excess of

$10,000 under a grant or cooperative agreement, DOE, the Comptroller

General of the United States, the recipient and the subrecipient (if

the contract was awarded under a financial assistance subaward), or any

of their authorized representatives shall have the right of access to

any books, documents, papers, or other records of the contractor or

subcontractor which are pertinent to that contract or subcontract, in

order to make audit, examination, excerpts, and copies.

(b) The right of access may be exercised for as long as the

applicable records are retained by the recipient, subrecipient,

contractor, or subcontractor.

Sec. 600.22 Disputes and appeals.

(a) Informal dispute resolution. Whenever practicable, DOE shall

attempt to resolve informally any dispute over the award or

administration of financial assistance. Informal resolution, including

resolution through an alternative dispute resolution mechanism, shall

be preferred over formal procedures available 10 CFR Part 1024, to the

extent practicable.

.

Sec. 600.22 Disputes and appeals.

(a) Informal dispute resolution. Whenever practicable, DOE shall

attempt to resolve informally any dispute over the award or

administration of financial assistance. Informal resolution, including

resolution through an alternative dispute resolution mechanism, shall

be preferred over formal procedures available 10 CFR Part 1024, to the

extent practicable.

(b) Alternative dispute resolution (ADR). Before issuing a final

disposition in any dispute in which informal resolution has not been

achieved, the Contracting Officer shall suggest that the other party

consider the use of voluntary consensual methods of dispute resolution,

such as mediation. The DOE dispute resolution specialist is available

to provide assistance for such disputes, as are trained mediators of

other federal agencies. ADR may be used at any stage of a dispute.

(c) Final determination. Whenever a dispute is not resolved

informally or through an alternative dispute resolution process, DOE

shall mail (by certified mail) a brief written determination signed by

a Contracting Officer, setting forth DOE's final disposition of such

dispute. Such determination shall contain the following information:

(1) A summary of the dispute, including a statement of the issues

and of the positions taken by the Department and the party or parties

to the dispute; and

(2) The factual, legal and policy reasons for DOE's disposition of

the dispute.

rmination signed by

a Contracting Officer, setting forth DOE's final disposition of such

dispute. Such determination shall contain the following information:

(1) A summary of the dispute, including a statement of the issues

and of the positions taken by the Department and the party or parties

to the dispute; and

(2) The factual, legal and policy reasons for DOE's disposition of

the dispute.

(d) Right of appeal. (1) Except as provided in paragraph (f)(1) of

this section, the final determination under paragraph (c) of this

section may be appealed to the Financial Assistance Appeals Board (the

Board) in accordance with the procedures set forth in 10 CFR part 1024.

(2) If the final determination under paragraph (c) of this section

involves a dispute over which the Board has jurisdiction as provided in

paragraph (f)(2) of this section, the Contracting Officer's

determination shall state that, with respect to such dispute, the

determination shall be the final decision of the Department unless,

within 60 days, a written notice of appeal is filed.

(3) If the final determination under paragraph (c) of this section

involves a dispute over which the Board has no jurisdiction as provided

in paragraph (f)(1) of this section, the Contracting Officer's

determination shall state that, effective immediately or on a later

date specified therein, the determination shall, with respect to such

dispute, be the final decision of the Department.

(e) Effect of appeal. The filing of an appeal with the Board shall

not stay any determination or action taken by DOE which is the subject

of the appeal. Consistent with its obligation to protect the interests

of the Federal Government, DOE may take such authorized actions as may

be necessary to preserve the status quo pending decision by the Board,

or to preserve its ability to provide relief in the event the Board

decides in favor of the appellant.

(f) Review on appeal. (1) The Board shall have no jurisdiction to

review:

ect

of the appeal. Consistent with its obligation to protect the interests

of the Federal Government, DOE may take such authorized actions as may

be necessary to preserve the status quo pending decision by the Board,

or to preserve its ability to provide relief in the event the Board

decides in favor of the appellant.

(f) Review on appeal. (1) The Board shall have no jurisdiction to

review:

(i) Any preaward dispute (except as provided in paragraph

(f)(2)(ii) of this section), including use of any special restrictive

condition pursuant to Sections 600.114 or 600.212;

(ii) DOE denial of a request for a deviation under Sections 600.4,

600.103, or 600.205 of this part;

(iii) DOE denial of a request for a budget revision or other change

in the approved project under Sections 600.125, 600.127, 600.222, or

600.230 of this part or under another term or condition of the award;

(iv) Any DOE action authorized under Sections 600.162(a) (1), (2),

(3) or (5); or

Sections 600.243 (a)(1), (a)(3) for suspensions only; or Sections

600.162 (a)(4) or Section 600.243(a)(4) for actions disapproving

renewal applications or other requests for extension of time or

additional funding for the same project when related to recipient

noncompliance, or such actions authorized by program rule;

(v) Any DOE decision about an action requiring prior DOE approval

under Section 600.144, or Section 600.236 of this part or under another

term or condition of the award;

(vi) A DOE decision not to make a continuation award, which

decision is based on the insufficiency of available appropriations;

(vii) Any matter which is under the jurisdiction of the Patent

Compensation Board (10 CFR 780.3);

(viii) Any matter which may be heard by the Invention Licensing

Appeals Board (10 CFR 781.65 and 781.66); or

(ix) Any other dispute not described in paragraph (f)(2) of this

section.

sion not to make a continuation award, which

decision is based on the insufficiency of available appropriations;

(vii) Any matter which is under the jurisdiction of the Patent

Compensation Board (10 CFR 780.3);

(viii) Any matter which may be heard by the Invention Licensing

Appeals Board (10 CFR 781.65 and 781.66); or

(ix) Any other dispute not described in paragraph (f)(2) of this

section.

(2) In addition to any right of appeal established by program rule,

or by the terms and conditions (not inconsistent with paragraph (f)(1)

of this section) of an award, the Board shall have jurisdiction to

review:

(i) A DOE determination that the recipient has failed to comply

with the applicable requirements of this part, the program statute or

rules, or other terms and conditions of the award;

(ii) A DOE decision not to make a continuation award based on any

of the determinations described in paragraph (f)(2)(i) of this section;

(iii) Termination of an award for cause, in whole or in part, by

DOE;

(iv) A DOE determination that an award is void or invalid;

(v) The application by DOE of an indirect cost rate; and

(vi) DOE disallowance of costs.

(3) In reviewing disputes authorized under paragraph (f)(2) of this

section, the Board shall be bound by the applicable law, statutes, and

rules, including the requirements of this part, and by the terms and

conditions of the award.

(4) The decision of the Board shall be the final decision of the

Department.

Sec. 600.23 Debarment and suspension.

Applicants, recipients, subrecipients, and contractors under

financial assistance awards may be debarred and suspended for the

causes and in accordance with the procedures set forth in 10 CFR part

1036.

Sec. 600.24 Noncompliance.

and by the terms and

conditions of the award.

(4) The decision of the Board shall be the final decision of the

Department.

Sec. 600.23 Debarment and suspension.

Applicants, recipients, subrecipients, and contractors under

financial assistance awards may be debarred and suspended for the

causes and in accordance with the procedures set forth in 10 CFR part

1036.

Sec. 600.24 Noncompliance.

(a) Except for noncompliance determinations under 10 CFR part 1040,

whenever DOE determines that a recipient has not complied with the

applicable requirements of this part, with the requirements of any

applicable program statute or rule, or with any other term or condition

of the award, a DOE Contracting Officer shall provide to the recipient

(by certified mail, return receipt requested) a written notice setting

forth:

(1) The factual and legal bases for the determination of

noncompliance;

(2) The corrective actions and the date (not less than 30 days

after the date of the notice) by which they must be taken.

(3) Which of the actions authorized under Section 600.122(n),

Section 600.162(a) or Section 600.243(a) of this part DOE may take if

the recipient does not achieve compliance within the time specified in

the notice, or does not provide satisfactory assurances that actions

have been initiated which will achieve compliance in a timely manner.

(b) DOE may take any of the actions set forth in Section

600.121(n,), Section 600.162(a), or Section 600.243(a) of this part

concurrent with the written notice required under paragraph (a) of this

section or with less than 30 days written notice to the recipient

whenever:

(1) There is evidence the award was obtained by fraud;

(2) The recipient ceases to exist or becomes legally incapable of

performing its responsibilities under the financial assistance award;

or

(3) There is a serious mismanagement or misuse of financial

assistance award funds necessitating immediate action.

Sec. 600.25 Suspension and termination.

s written notice to the recipient

whenever:

(1) There is evidence the award was obtained by fraud;

(2) The recipient ceases to exist or becomes legally incapable of

performing its responsibilities under the financial assistance award;

or

(3) There is a serious mismanagement or misuse of financial

assistance award funds necessitating immediate action.

Sec. 600.25 Suspension and termination.

(a) Suspension and termination for cause. DOE may suspend or

terminate an award for cause on the basis of--

(1) a noncompliance determination under Section 600.24, Section

600.122(n), Section 600.162(a), or Section 600.243(a);

(2) an immediate debarment or debarment of the awardee under

Section 600.23.

(b) Notification requirements. Except as provided in Section

600.24, Section 600.162(a), or Section 600.243(a) before suspending or

terminating a award for cause, DOE shall mail to the awardee (by

certified mail, return receipt requested) a separate written notice in

addition to that required by Section 600.24(a), Section 600.162(a), or

Section 600.243(a) at least ten days prior to the effective date of the

suspension or termination. Such notice shall include, as appropriate--

(1) The factual and legal bases for the suspension or termination;

(2) The effective date or dates of the DOE action;

(3) If the action does not apply to the entire award, a description

of the activities affected by the action;

(4) Instructions concerning which costs shall be allowable during

the period of suspension, or instructions concerning allowable

termination costs, including in either case, instructions concerning

any subgrants or contracts;

(5) Instructions concerning required final reports and other

closeout actions for terminated awards (see Sections 600.170 through

600.173 and Sections 600.250 through 600.252);

(6) A statement of the awardee's right to appeal a termination for

cause pursuant to Section 600.22; and

(7) The dated signature of a DOE Contracting Officer.

case, instructions concerning

any subgrants or contracts;

(5) Instructions concerning required final reports and other

closeout actions for terminated awards (see Sections 600.170 through

600.173 and Sections 600.250 through 600.252);

(6) A statement of the awardee's right to appeal a termination for

cause pursuant to Section 600.22; and

(7) The dated signature of a DOE Contracting Officer.

(c) Suspension. (1) Unless DOE and the awardee agree otherwise, no

period of suspension shall exceed 90 days.

(2) DOE may cancel the suspension at any time, up to and including

the date of expiration of the period of suspension, if the awardee

takes satisfactory corrective action before the expiration date of the

suspension or gives DOE satisfactory evidence that such corrective

action will be taken.

(3) If the suspension has not been cancelled by the expiration date

of the period of suspension, the awardee shall resume the suspended

activities or project unless, prior to the expiration date, DOE

notifies the awardee in writing that the period of suspension shall be

extended consistent with paragraph (c)(1) of this section or that the

award shall be terminated.

(4) As of the effective date of the suspension, DOE shall withhold

further payments and shall allow new obligations incurred by the

awardee during the period of suspension only if such costs were

authorized in the notice of suspension or in a subsequent letter.

(5) If the suspension is cancelled or expires and the award is not

terminated, DOE shall reimburse the awardee for any authorized

allowable costs incurred during the suspension and, if necessary, may

amend the award to extend the period of performance.

rred by the

awardee during the period of suspension only if such costs were

authorized in the notice of suspension or in a subsequent letter.

(5) If the suspension is cancelled or expires and the award is not

terminated, DOE shall reimburse the awardee for any authorized

allowable costs incurred during the suspension and, if necessary, may

amend the award to extend the period of performance.

(d) Termination by mutual agreement. In addition to any situation

where a termination for cause pursuant to Section 600.24, Sections

600.160 through 600.162 or Sections 600.243 through 600.244 is

appropriate, either DOE or the awardee may initiate a termination of a

award (or portion thereof) as described in this paragraph. If the

awardee initiates a termination, the awardee must notify DOE in writing

and specify the awardee's reasons for requesting the termination, the

proposed effective date of the termination, and, in the case of a

partial

termination, a description of the activities to be terminated, and an

appropriate budget revision. DOE shall terminate a award or portion

thereof under this paragraph only if both parties agree to the

termination and the conditions under which it shall occur. If DOE

determines that the remaining activities under a partially terminated

award would not accomplish the purpose for which the award was

originally awarded, DOE may terminate the entire award.

(e) Effect of termination. The awardee shall incur no new

obligations after the effective date of the termination of a award (or

portion thereof), and shall cancel as many outstanding obligations as

possible. DOE shall allow full credit to the awardee for the DOE share

of noncancellable obligations properly incurred by the awardee prior to

the effective date of the termination.

entire award.

(e) Effect of termination. The awardee shall incur no new

obligations after the effective date of the termination of a award (or

portion thereof), and shall cancel as many outstanding obligations as

possible. DOE shall allow full credit to the awardee for the DOE share

of noncancellable obligations properly incurred by the awardee prior to

the effective date of the termination.

(f) Subgrants. Awardees shall follow the policies and procedures in

this section and in Section 600.24, Sections 600.160 through 600.162 or

Sections 600.243 through 600.244 for suspending and terminating

subgrants.

Sec. 600.26 Funding.

(a) General. The project period during which DOE expects to provide

award support for an approved project shall be specified on the Notice

of Financial Assistance Award (DOE Form 4600.1).

(b) Budget period and continuation awards. If the project period is

12 months or less, the budget period and the project period shall be

coextensive. Except as provided in paragraph (e) of this section,

multiyear awards, including formula awards, shall be funded annually

within the approved project period. Funding for each budget period

within the project period shall be contingent on DOE approval of a

continuation application submitted in accordance with a schedule

specified by DOE. A continuation application shall include--

(1) A statement of technical progress or status of the project to

date.

(2) A detailed description of the awardee's plans for the conduct

of the project during the coming year; and

each budget period

within the project period shall be contingent on DOE approval of a

continuation application submitted in accordance with a schedule

specified by DOE. A continuation application shall include--

(1) A statement of technical progress or status of the project to

date.

(2) A detailed description of the awardee's plans for the conduct

of the project during the coming year; and

(3) A detailed budget for the upcoming budget period, including an

estimate of unobligated balances. A detailed budget need not be

submitted if the new or renewal application contained future-year

budgets sufficiently detailed to allow DOE to review and approve the

categories and elements of cost. Should the award have a change in

scope or significant change in the budget, DOE may request a detailed

budget. DOE shall review a continuation application for the adequacy of

the awardee's progress and planned conduct of the project in the

subsequent budget period. DOE shall not require a continuation

application to compete against any other application. The amount and

award of continuation funding is subject to the availability of

appropriations.

(c) Renewal awards. Discretionary renewal awards may be made either

on the basis of a solicitation or on a noncompetitive basis. If DOE

proposes to restrict eligibility for a discretionary renewal award to

the incumbent grantee, the noncompetitive award must be justified in

accordance with 600.6(b)(2). Renewal applications must be submitted no

later than 6 months prior to the scheduled expiration of the project

period unless a program rule or other published instruction establishes

a different application deadline.

s. If DOE

proposes to restrict eligibility for a discretionary renewal award to

the incumbent grantee, the noncompetitive award must be justified in

accordance with 600.6(b)(2). Renewal applications must be submitted no

later than 6 months prior to the scheduled expiration of the project

period unless a program rule or other published instruction establishes

a different application deadline.

(d) Extensions. Unless otherwise specified in the award terms and

conditions, recipients of financial assistance awards, except

recipients of SBIR awards (See Section 600.181), may extend the

expiration date of the final budget period of the project (thereby

extending the project period) if additional time beyond the established

expiration date is needed to assure adequate completion of the original

scope of work within the funds already made available. A single

extension, which shall not exceed twelve (12) months, may be made for

this purpose, and must be made prior to the originally established

expiration date. The recipient must notify the cognizant DOE

Contracting Officer in the awarding office in writing within ten (10)

days of making the extension.

Sec. 600.27 Patent and data provisions.

(a) General. Financial assistance shall be awarded and administered

by DOE in compliance with the patent and data provisions of this

section. (See also Sections 600.136 and 600.234.) To the extent not

otherwise provided in this part, the policies, procedures and clauses

referenced for contracts in 48 CFR part 927 and 41 CFR part 9-9 shall

normally be applicable to the award and administration of Departmental

grants and cooperative agreements. Copies of 41 CFR part 9-9 are

available by contacting the DOE Patent Counsel.

is

section. (See also Sections 600.136 and 600.234.) To the extent not

otherwise provided in this part, the policies, procedures and clauses

referenced for contracts in 48 CFR part 927 and 41 CFR part 9-9 shall

normally be applicable to the award and administration of Departmental

grants and cooperative agreements. Copies of 41 CFR part 9-9 are

available by contacting the DOE Patent Counsel.

(b) Required clauses. In all solicitations and awards both for the

support of research, development, and demonstration and for other

efforts, the DOE Contracting Officer shall consult the DOE Patent

Counsel for applicable patent and data clauses from those listed below

and/or for modifications thereto. In reading each 48 CFR part 27 and 48

CFR part 952 patent and data clause selected for inclusion in a

solicitation or award, the term ``contract'' when referring to a prime

contract shall be read as ``award.'' The term ``contractor'' shall be

read as referring to the ``awardee.'' The term ``subcontract'' shall be

read as ``subaward or a procurement contract under an award or subaward

and/or a procurement subcontract under an awardee's or subawardee's

contract.'' The term ``Acquisition'' with respect to the Long Form

Patent Rights Clause shall be read as ``Retention.'' The terms

``offerors'' and ``quoters'' shall be read as ``applicants,'' and

``proposal'' and ``quotation'' shall be read as ``application.''

(1) Patent clauses.

ocurement contract under an award or subaward

and/or a procurement subcontract under an awardee's or subawardee's

contract.'' The term ``Acquisition'' with respect to the Long Form

Patent Rights Clause shall be read as ``Retention.'' The terms

``offerors'' and ``quoters'' shall be read as ``applicants,'' and

``proposal'' and ``quotation'' shall be read as ``application.''

(1) Patent clauses.

(i) (Short Form Patent Clause). Incorporate the clause at 48 CFR

952.227-11 for awards to a domestic small business firm or nonprofit

organization as defined at 48 CFR 27.301. In accordance with 35 USC

202(a)(ii), the DOE may issue an exceptional circumstances

determination. To implement any exceptional circumstances

determination, DOE will modify 48 CFR 952.227-11 to retain greater

rights in subject inventions. Such modifications will be only to the

extent necessary to implement the exceptional circumstances

determination.

(ii) (Long Form Patent Clause). For awards to a large business firm

or other organization, other than a domestic small business firm or

nonprofit organization as set forth in 48 CFR 27.301, incorporate the

clause at 48 CFR 952.227-13.

(iii) The notice of Right to Request Patent Waiver at 48 CFR

952.227-84 shall also be inserted in all solicitations to advise

applicants of their rights to request in advance of, or within 30 days

after the award is signed, a waiver of all or any part of the rights of

the United States with respect to subject inventions. For unsolicited

applications, DOE shall provide this notice to the applicant prior to

award.

(2) Data Clauses (includes copyright provisions)

4 shall also be inserted in all solicitations to advise

applicants of their rights to request in advance of, or within 30 days

after the award is signed, a waiver of all or any part of the rights of

the United States with respect to subject inventions. For unsolicited

applications, DOE shall provide this notice to the applicant prior to

award.

(2) Data Clauses (includes copyright provisions)

(i) Rights in Data--General. (A) Incorporate 48 CFR 52.227-14 with

Alternates I and V. Solicitations shall also include the Representation

of Limited Rights Data and Restricted Computer Software clause at 48

CFR 52.227-15.

(B) In awards for grants and cooperative agreements with

institutions of higher education, hospitals, and other non-profit

organizations, the following paragraph (c) will be used in lieu of the

provisions in 48 CFR 52.227-14(c):

(c) Copyright. (1) Data first produced in the performance of the

award. Except as otherwise specifically provided in this award, the

recipient may establish claim to copyright subsisting in any data

first produced in the performance of this award. When claim to

copyright is made, the Recipient shall affix the applicable

copyright notice of 17 U.S.C. 401 or 402 and acknowledgement of

Government sponsorship (including award number) to the data when

such data are delivered to the Government, as well as when the data

are published or deposited for registration as a published work in

the U.S. Copyright Office. The recipient grants to the Government a

royalty-free, nonexclusive and irrevocable right to reproduce,

publish, or otherwise use the work for Federal purposes, and to

authorize others to do so. The right to publish includes the right

to publicly distribute. The right to use the work for Federal

purposes includes the right to prepare derivative works.

ished work in

the U.S. Copyright Office. The recipient grants to the Government a

royalty-free, nonexclusive and irrevocable right to reproduce,

publish, or otherwise use the work for Federal purposes, and to

authorize others to do so. The right to publish includes the right

to publicly distribute. The right to use the work for Federal

purposes includes the right to prepare derivative works.

(C) For grants and cooperative agreements with commercial

organizations, foreign governments, organizations under the

jurisdiction of foreign governments, and international organizations,

the provisions the following paragraph (d)(3) shall be used in addition

to the provisions in 48 CFR 52.227-14:

(d)(3) The Recipient agrees not to establish claim to copyright

in computer software first produced in the performance of this award

without prior written permission of the Contracting Officer. When

such permission is granted, the Contracting Officer shall specify

appropriate terms to assure dissemination of the software. The

recipient shall promptly deliver to the Contracting Officer or to

the DOE Patent Counsel designated by the Contracting Officer a duly

executed and approved instrument fully confirmatory of all rights to

which the Government is entitled, and other terms pertaining to the

computer software to which claim to copyright is made.

(D) If programmatic needs on a particular award require the

delivery to the Government of limited rights data or restricted

computer software, Alternates II or III of 48 CFR 52.227-14 shall also

be added.

(ii) Restriction on Disclosure and Use of Data. Insert the Notice

at 600.15(b)(1) in all solicitations.

(iii) Rights to Application Data. As discussed at 600.15(b)(5),

incorporate 48 CFR 52.227-23.

ogrammatic needs on a particular award require the

delivery to the Government of limited rights data or restricted

computer software, Alternates II or III of 48 CFR 52.227-14 shall also

be added.

(ii) Restriction on Disclosure and Use of Data. Insert the Notice

at 600.15(b)(1) in all solicitations.

(iii) Rights to Application Data. As discussed at 600.15(b)(5),

incorporate 48 CFR 52.227-23.

(iv) Additional data requirements. Incorporate 48 CFR 52.227-16. In

the event all technical data requirements are known in advance of and

are set forth in the agreement or, the award is for the performance of

basic or applied research and is to be performed solely by a university

or college as discussed in 48 CFR 27.406(b), 48 CFR 52.227-16 does not

need to be incorporated.

(3) Authorization and consent. Incorporate 48 CFR 52.227-1 or

Alternates I or II, as appropriate, in accordance with the guidance in

48 CFR 927.201-1 and 48 CFR 27.201.

(4) Patent indemnity. Incorporate the clause set forth in 48 CFR

52.227-3, as appropriate, in accordance with the guidance in 48 CFR

27.203-1 and 48 CFR 27.203-3.

(5) Filing of Patent Applications-Classified Subject Matter.

Incorporate the following paragraph in any solicitation or award which

covers, or is likely to cover, classified subject matter:

Classified Inventions

(a) The recipient shall not file or cause to be filed on any

invention or discovery conceived or first actually reduced to

practice in the course of or under this award in any country other

than the United States, an application or registration for a patent

without first obtaining written approval of the Contracting Officer.

likely to cover, classified subject matter:

Classified Inventions

(a) The recipient shall not file or cause to be filed on any

invention or discovery conceived or first actually reduced to

practice in the course of or under this award in any country other

than the United States, an application or registration for a patent

without first obtaining written approval of the Contracting Officer.

(b) When filing a patent application in the United States on any

invention or discovery conceived of or first actually reduced to

practice in the course of or under this award, the subject matter of

which is classified for reasons of security, the awardee shall

observe all applicable security regulations covering the

transmission of classified subject matter. When transmitting the

patent application to the United States Patent and Trademark Office,

the awardee shall, by separate letter, identify by agency and

agreement number the award(s) which require security classification

markings to be placed on the application.

(6) Notice and Assistance Regarding Patent and Copyright

Infringement. Incorporate the clause at 48 CFR 52.227-2, in accordance

with the guidance in 48 CFR 27.202, in all awards in excess of $100,000

for construction, research, development, and demonstration work which

is to be performed within the United States, its possessions, or Puerto

Rico.

(7) Royalty Information. Incorporate 10 CFR 52.227-6.

(8) Refund of Royalties. As discussed in 48 CFR 927.206,

incorporate the clause at 48 CFR 952.227-9 in solicitations and awards

where the Contracting Officer believes royalties will have to be paid

by the awardees or subawardee or contractor at any tier.

which

is to be performed within the United States, its possessions, or Puerto

Rico.

(7) Royalty Information. Incorporate 10 CFR 52.227-6.

(8) Refund of Royalties. As discussed in 48 CFR 927.206,

incorporate the clause at 48 CFR 952.227-9 in solicitations and awards

where the Contracting Officer believes royalties will have to be paid

by the awardees or subawardee or contractor at any tier.

(9) Subawards and contracts under award. The recipient shall

include the applicable clauses of this section in any subaward or

contract awarded under the award and assure that the applicable clauses

are also included by subrecipients in contracts.

Sec. 600.28 New restrictions on lobbying.

Procedures regarding restrictions on lobbying activities of

applicants and recipients are contained in 10 CFR 601.110.

Sec. 600.29 Fixed obligation awards.

(a) General. This section contains provisions applicable to the

award of financial assistance instruments on a fixed amount basis.

Under a fixed obligation award, funds are issued in support of a

project without a requirement for Federal monitoring or actual costs

subsequently incurred.

(b) Provisions applicable to fixed obligation awards. Financial

assistance awards may be made on a fixed obligation basis subject to

the following requirements:

(1) Each fixed obligation award may not exceed $100,000 or exceed

one year in length.

(2) Programs which require mandatory cost sharing are not eligible.

(3) Proposed costs must be analyzed in detail to ensure consistency

with applicable cost principles;

(4) Although budgets are submitted by an applicant and reviewed for

purposes of establishing the amount to be awarded, budget categories

are not stipulated in making an award;

(5) Payments will be made in the same manner as other financial

assistance awards, except that when determined appropriated by the

cognizant program official and contracting officer a lump sum payment

may be made;

es;

(4) Although budgets are submitted by an applicant and reviewed for

purposes of establishing the amount to be awarded, budget categories

are not stipulated in making an award;

(5) Payments will be made in the same manner as other financial

assistance awards, except that when determined appropriated by the

cognizant program official and contracting officer a lump sum payment

may be made;

(6) Recipients must certify in writing to the contracting officer

at the end of the project that the activity was completed or the level

of effort was expended, however should the activity or effort not be

carried out, the recipient would be expected to make appropriate

reimbursements;

(7) Requirements for periodic reports may be established for each

award so long as they are not more frequently than quarterly;

(8) Changes in principal investigator or project leader, scope of

effort, or institution, require the prior approval of the Department.

Sec. 600.30 Cost sharing.

In addition to the requirements of Section 600.123 or Section

600.224, the following requirements apply to research, development, and

demonstration projects:

(a) When DOE awards financial assistance for research, development,

and demonstration projects where the primary purpose of the project is

the ultimate commercialization and utilization of technology by the

private sector and when there are reasonable expectations that the

participant will receive significant present or future economic

benefits beyond the instant award as a result of the performance of the

project, cost sharing shall be

required unless waived by the cognizant Program Assistant Secretary or

designee.

(b) Except as provided in statute such as the Energy Policy Act, 42

U.S.C. 13525, DOE will decide, on a case-by-case basis, the amount of

cost sharing required for a particular project.

ent or future economic

benefits beyond the instant award as a result of the performance of the

project, cost sharing shall be

required unless waived by the cognizant Program Assistant Secretary or

designee.

(b) Except as provided in statute such as the Energy Policy Act, 42

U.S.C. 13525, DOE will decide, on a case-by-case basis, the amount of

cost sharing required for a particular project.

(c) Factors in addition to those specified in Section 600.123 or

Section 600.224, which may be considered when negotiating cost sharing

for research, development, and demonstration projects include the

potential benefits to a participant resulting from the project and the

length of time before a project is likely to be commercially

successful.

[FR Doc. 95-19149 Filed 8-7-95; 8:45 am]

BILLING CODE 6450-01-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Financial Assistance Rules; Regulatory Reduction · 60 FR 40323 | Frix