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later date specified therein, the deter- (ix) Any other dispute not described mination shall, with respect to such in paragraph (f)(2) of this section dispute, be the final decision of the De- (2) In addition to any right of appeal partment.
established by program rule, or by the (e) Effect of appeal. The filing of an terms and conditions (not inconsistent appeal with the Board shall not stay with paragraph (f)(1) of this section) of any determination or action taken by an award, the Board shall have jurisDOE which is the subject of the appeal. diction to review: Consistent with its obligation to pro
(i) A DOE determination that the retect the interests of the Federal Gov cipient has failed to comply with the ernment, DOE may take such author- applicable requirements of this part, ized actions as may be necessary to the program statute or rules, or other preserve the status quo pending deci- terms and conditions of the award: sion by the Board, or to preserve its
(ii) A DOE decision not to make a ability to provide relief in the event
continuation award based on any of the the Board decides in favor of the appel
determinations described in paragraph lant.
(f)(2)(i) of this section; (1) Review on appeal. (1) The Board
(iii) Termination of an award for shall have no jurisdiction to review:
cause, in whole or in part, by DOE;
(iv) A DOE determination that an (i) Any preaward dispute (except as
award is void or invalid; provided in paragraph (f)(2)(ii) of this
(v) The application by DOE of an insection), including use of any special
direct cost rate; and restrictive condition pursuant to
(vi) DOE disallowance of costs. $$ 600.114 or 600.212;
(3) In reviewing disputes authorized (ii) DOE denial of a request for a de
under paragraph (f)(2) of this section, viation under $$ 600.4, 600.103, or 600.205
the Board shall be bound by the appliof this part;
cable law, statutes, and rules, includ(iii) DOE denial of a request for a
ing the requirements of this part, and budget revision or other change in the by the terms and conditions of the approved project under $8 600.125,
award. 600.127, 600.222, or 600.230 of this part or
(4) The decision of the Board shall be under another term or condition of the the final decision of the Department. award;
(iv) Any DOE action authorized $ 600.23 Debarment and suspension. under $$ 600.162(a) (1), (2), (3) or (5); or
Applicants, recipients, subrecipients, $$ 600.243 (a)(1), (a)(3) for suspensions
and contractors under financial assistonly; or $600.162(a)(4) or 8600.243(a)(4)
ance awards may be debarred and susfor actions disapproving renewal appli
pended for the causes and in accordcations or other requests for extension
ance with the procedures set forth in 10 of time or additional funding for the
CFR part 1036. same project when related to recipient noncompliance, or such actions author $ 600.24 Noncompliance. ized by program rule;
(a) Except for noncompliance with (v) Any DOE decision about an action
nondiscrimination requirements under requiring prior DOE approval under
10 CFR part 1040, whenever DOE deter9600.144, or $600.236 of this part or
mines that a recipient has not comunder another term or condition of the
plied with the applicable requirements award;
of this part, with the requirements of (vi) A DOE decision not to make a
any applicable program statute or rule, continuation award, which decision is
or with any other term or condition of based on the insufficiency of available the award, a DOE Contracting Officer appropriations;
shall provide to the recipient (by cer(vii) Any matter which is under the tified mail, return receipt requested) a Jurisdiction of the Patent Compensa written notice setting forth: tion Board (10 CFR 780.3);
(1) The factual and legal bases for the (viii) Any matter which may be heard determination of noncompliance; by the Invention Licensing Appeals (2) The corrective actions and the Board (10 CFR 781.65 and 781.66); and 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 $8600.122(n), 600.162(a) or $ 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 $ 600.122(n), $ 600.162(a), or $ 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. (61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999)
(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 $$ 600.170 through 600.173 and $$ 600.250 through 600.252);
(6) A statement of the awardee's right to appeal a termination for cause pursuant to $ 600.22; and
(7) The dated signature of a DOE Contracting Officer.
(c) Suspension. (1) Unless DOE and the awardee agree otherwise, no period of suspension shall exceed 90 days.
(2) DOE may cancel the suspension at any time, up to and including the date of expiration of the period of suspension, if the awardee takes satisfactory corrective action before the expiration date of the suspension or gives DOE satisfactory evidence that such corrective action will be taken.
(3) If the suspension has not been cancelled by the expiration date of the period of suspension, the awardee shall resume the suspended activities or project unless, prior to the expiration date. DOE notifies the awardee in writing that the period of suspension shall be extended consistent with paragraph (c)(1) of this section or that the award shall be terminated.
(4) As of the effective date of the suspension, DOE shall withhold further payments and shall allow new obligations incurred by the awardee during the period of suspension only if such costs were authorized in the notice of suspension or in a subsequent letter.
(5) If the suspension is cancelled or expires and the award is not terminated, DOE shall reimburse the awardee for any authorized allowable costs incurred during the suspension and, if necessary, may amend the award to extend the period of performance.
(d) Termination by mutual agreement. In addition to any situation where a termination for cause pursuant to $$ 600.24, 600.160 through 600.162 or 8$ 600.243 through 600.244 is appropriate, either DOE or the awardee may initiate a termination of an award (or portion thereof) as described in this
$ 600.25 Suspension and termination.
(a) Suspension and termination for cause. DOE may suspend or terminate an award for cause on the basis of:
(1) Anoncompliance determination under $$ 600.24, 600.122(n), 600.162(a), or $ 600.243(a); or
(2) An suspension or debarment of the awardee under $ 600.23.
(b) Notification requirements. Except as provided in 8600.24, 600.162(a), or $ 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 $$ 600.24(a), 600.162(a), or $ 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;
paragraph. If the awardee initiates a (2) A detailed description of the termination, the awardee must notify awardee's plans for the conduct of the DOE in writing and specify the award project during the coming year; and ee's reasons for requesting the termi (3) A detailed budget for the upcomnation, the proposed effective date of ing budget period, including an estithe termination, and, in the case of a mate of unobligated balances. A departial termination, a description of tailed budget need not be submitted if the activities to be terminated, and an the new or renewal application conappropriate budget revision. DOE shall tained future-year budgets sufficiently terminate an award or portion thereof detailed to allow DOE to review and under this paragraph only if both par- approve the categories and elements of ties agree to the termination and the cost. Should the award have a change conditions under which it shall occur. in scope or significant change in the If DOE determines that the remaining
budget, DOE may request a detailed activities under a partially terminated budget. award would not accomplish the pur (4) DOE shall review a continuation pose for which the award was origi
application for the adequacy of the nally awarded, DOE may terminate the
awardee's progress and planned conentire award.
duct of the project in the subsequent (e) Effect of termination. The awardee
budget period. DOE shall not require a shall incur no new obligations after the
continuation application to compete effective date of the termination of an
against any other application. The award (or portion thereof), and shall
amount and award of continuation cancel as many outstanding obliga
funding is subject to the availability of tions as possible. DOE shall allow full
appropriations. credit to the awardee for the DOE
(c) Renewal awards. Discretionary reshare of noncancellable obligations
newal awards may be made either on properly incurred by the awardee prior
the basis of a solicitation or on a nonto the effective date of the termi
competitive basis. If DOE proposes to nation.
restrict eligibility for a discretionary
renewal award to the incumbent grant(f) Subgrants. Awardees shall follow
ee, the noncompetitive award must be the policies and procedures in this sec
justified in accordance with tion and in $$ 600.24, 600.160 through
$ 600.6(b)(2). Renewal applications must 600.162 or $8 600.243 through 600.244 for
be submitted no later than 6 months suspending and terminating subgrants.
prior to the scheduled expiration of the $ 600.26 Funding.
project period unless a program rule or
other published instruction establishes (a) General. The project period during a different application deadline. which DOE expects to provide award (d) Extensions. Unless otherwise specisupport for an approved project shall fied in the award terms and conditions, be specified on the Notice of Financial recipients of financial assistance Assistance Award (DOE Form 4600.1).
awards, except recipients of SBIR (b) Budget period and continuation awards (See 8600.181), may extend the awards. If the project period is 12 expiration date of the final budget pemonths or less, the budget period and riod of the project (thereby extending the project period shall be coextensive. the project period) if additional time Multiyear awards, including formula beyond the established expiration date awards, shall generally be funded annu- is needed to assure adequate compleally within the approved project pe- tion of the original scope of work withriod. Funding for each budget period in the funds already made available. A within the project period shall be con single extension, which shall not extingent on DOE approval of a continu ceed twelve (12) months, may be made ation application submitted in accord for this purpose, and must be made ance with a schedule specified by DOE. prior to the originally established expiA continuation application shall in ration date. The recipient must notify clude:
the cognizant DOE Contracting Officer (1) A statement of technical progress in the awarding office in writing within or status of the project to date;
ten (10) days of making the extension.
8600.27 Patent and data provisions. (ii) (Long Form Patent Clause). For
awards to a large business firm (a) General. Financial assistance shall
other organization, other than a dobe awarded and administered by DOE
mestic small business firm or nonprofit in compliance with the patent and data
organization as set forth in 48 CFR provisions of this section (See also
27.301, incorporate the clause at 48 CFR $$ 600.136 and 600.234.) To the extent not
952.227–13. otherwise provided in this part, the (iii) The notice of Right to Request policies, procedures and clauses ref
Patent Waiver at 48 CFR 952.227-84 erenced for contracts in 48 CFR part
shall also be inserted in all solicita927 and 41 CFR part 9-9 shall normally
tions to advise applicants of their be applicable to the award and admin
rights to request in advance of, or istration of Departmental grants and within 30 days after the award is cooperative agreements. Copies of 41 signed, a waiver of all or any part of CFR part 9-9 are available by con the rights of the United States with retacting the DOE Patent Counsel.
spect to subject inventions. For unso(b) Required clauses. In all solicita licited applications, DOE shall provide tions and awards both for the support this notice to the applicant prior to of research, development, and dem award. onstration and for other efforts, the (2) Data clauses (includes copyright DOE Contracting Officer shall consult provisions)—(i) Rights in data-General. the DOE Patent Counsel for applicable (A) Incorporate 48 CFR 52.227-14 with patent and data clauses from those its Alternate V and with the definilisted below and/or for modifications tional paragraph (a) and paragraph thereto. In reading each 48 CFR part 27 (d)(3) of 48 CFR 927.409(a)(1). Solicitaand 48 CFR part 952 patent and data tions shall also include the Representaclause selected for inclusion in a solici- tion of Limited Rights Data and Retation or award, the term “contract” stricted Computer Software provision when referring to a prime contract at 48 CFR 52.227–15. Contracting offishall be read as "award.” The term cers shall treat rights in data matters “contractor” shall be read as referring in accordance with 48 CFR 927.4. to the “awardee." The term "sub- (B) In awards for grants and cooperacontract” shall be read as "subaward tive agreements with institutions of or a procurement contract under an higher education, hospitals, and other award or subaward and/or a procure- non-profit organizations, the clause rement subcontract under an awardee's ferred to in paragraph (b)(2)(i)(A) of or subawardee's contract." The term this section shall be revised by deleting "Acquisition” with respect to the Long paragraph (d)(3) and inserting the folForm Patent Rights Clause shall be lowing paragraph (c) in lieu of pararead as “Retention.” The terms graph (c) of that clause: "offerors” and “quoters” shall be read
(c) Copyright. (1) Data first produced in the as "applicants,” and “proposal” and
performance of the award. Except as other“quotation” shall be read as “applica wise specifically provided in this award, the tion.'
recipient may establish claim to copyright (1) Patent clauses–(i) (Short Form Pat subsisting in any data first produced in the ent Clause). Incorporate the clause at 48
performance of this award. When claim to CFR 952.227-11 for awards to a domestic
copyright is made, the Recipient shall affix
the applicable copyright notice of 17 U.S.C. small business firm or nonprofit orga
401 or 402 and acknowledgement of Governnization as defined at 48 CFR 27.301. In
ment sponsorship (including award number) accordance with 35 U.S.C. 202(a)(ii), the to the data when such data are delivered to DOE may issue an exceptional cir the Government, as well as when the data cumstances determination. To imple are published or deposited for registration as ment any exceptional circumstances a published work in the U.S. Copyright Of- determination, DOE will modify 48
fice. The recipient grants to the Government CFR 952.227-11 to retain greater rights
a royalty-free, nonexclusive and irrevocable
right to reproduce, publish, or otherwise use in subject inventions. Such modifica
the work for Federal purposes, and to autions will be only to the extent nec
thorize others to do so. The right to publish essary to implement the exceptional includes the right to publicly distribute. The circumstances determination.
right to use the work for Federal purposes
includes the right to prepare derivative works.
(C) 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.
(iv) Additional data requirements. Incorporate 48 CFR 52.227–16. In the event all technical data requirements are known in advance of and are set forth in the agreement or, the award is for the performance of basic or applied research and is to be performed solely by a university or college as discussed in 48 CFR 27.406(b), 48 CFR 52.227-16 does not need to be incorporated.
(3) Authorization and consent. Incorporate 48 CFR 52.227-1 or Alternates I or II, as appropriate, in accordance with the guidance in 48 CFR 927.201–1 and 48 CFR 27.201.
(4) Patent indemnity. Incorporate the clause set forth in 48 CFR 52.227-3, as appropriate, in accordance with the guidance in 48 CFR 27.203-1 and 48 CFR 27.203–3.
(5) Filing of patent applications-Classified subject matter. Incorporate the following paragraphs in any solicitation or award which covers, or is likely to cover, classified subject matter:
ment number the award(s) which require security classification markings to be placed on the application.
(6) Notice and assistance regarding patent and copyright infringement. Incorporate the clause at 48 CFR 52.227-2, in accordance with the guidance in 48 CFR 27.202, in all awards in excess of $100,000 for construction, research, development, and demonstration work which is to be performed within the United States, its possessions, or Puerto Rico.
(7) Royalty information. Incorporate 48 CFR 52.227-6.
(8) Refund of royalties. As discussed in 48 CFR 927.206, incorporate the clause at 48 CFR 952.227–9 in solicitations and awards where the Contracting Officer believes royalties will have to be paid by the awardees or subawardee or contractor at any tier.
(9) Subawards and contracts under award. The recipient shall include the applicable clauses of this section any subaward or contract awarded under the award and assure that the applicable clauses are also included by subrecipients in contracts. [61 FR 7166, Feb. 26, 1996, as amended at 63 FR 10503, Mar. 4, 1998; 64 FR 4029, Jan, 27, 1999) $ 600.28 Restrictions on lobbying.
Procedures regarding restrictions on lobbying activities of applicants and recipients are contained in 10 CFR 601.110.
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 agree
8 600.29 Fixed obligation awards.
(a) General. This section contains provisions applicable to the award of financial assistance instruments on a fixed amount basis. Under a fixed obligation award, funds are issued in support of a project without a requirement for Federal monitoring of actual costs subsequently incurred.
(b) Provisions applicable to fixed obligation awards. Financial assistance awards may be made on a fixed obligation basis subject to the following requirements:
(1) Each fixed obligation award may neither exceed $100,000 nor exceed one year in length.
(2) Programs which require mandatory cost sharing are not eligible.