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(c) Financial assistance to foreign Merit review means a thorough, conentities is governed, to the extent ap sistent, and objective examination of propriate, by this part and by the ad applications based on pre-established ministrative requirements and cost criteria by persons who are indeprinciples applicable to their respec- pendent of those submitting the applitive recipient type, e.g, governmental, cations and who are knowledgeable in non-profit, commercial.

the field of endeavor for which support

is requested. $ 600.3 Definitions.

Nonprofit organization means any corAmendment means the written docu- poration, trust, foundation, or institument executed by a DOE contracting tion which is entitled to exemption officer that changes one or more terms under section 501(c)(3) of the Internal or conditions of an existing financial Revenue Code, or which is not orgaassistance award.

nized for profit and no part of the net Award means the written document earnings of which inure to the benefit executed by a DOE Contracting Officer, of any private shareholder or indiafter an application is approved, which vidual (except that the definition of contains the terms and conditions for "nonprofit organization" at 48 CFR providing financial assistance to the 27.301 shall apply to the use of the patrecipient.

ent clause at Section 600.27). Budget period means the interval of Program rule means a rule issued by a time, specified in the award, into which DOE program office for the award and a project is divided for budgeting and administration of financial assistance funding purposes.

which may describe the program's purContinuation award means an award pose or objectives, eligibility requirefor a succeeding or subsequent budget ments for applicants, types of program period after the initial budget period of activities or areas to be supported, either an approved project period or re

evaluation and selection process, cost newal thereof.

sharing requirements, etc. These rules Contract means a written procure usually supplement the generic policies ment contract executed by a recipient and procedures for financial assistance or subrecipient for the acquisition of contained in this part. property or services under a financial Project means the set of activities deassistance award.

scribed in an application, State plan, Contracting Officer means the DOE of or other document that is approved by ficial authorized to execute awards on DOE for financial assistance (whether behalf of DOE and who is responsible such financial assistance represents all for the business management and non or only a portion of the support necprogram aspects of the financial assist essary to carry out those activities.) ance process.

Project period means the total period DOE Patent Counsel means the De of time indicated in an award during partment of Energy Patent Counsel as which DOE expects to provide financial sisting the Contracting Officer in the assistance. A project period may conreview and coordination of patents and sist of one or more budget periods and data related items.

may be extended by DOE. Financial assistance means the trans Recipient means the organization, infer of money or property to a recipient dividual, or other entity that receives or subrecipient to accomplish a public an award from DOE and is financially purpose of support or stimulation au accountable for the use of any DOE thorized by Federal statute. For pur funds or property provided for the perposes of this part, financial assistance formance of the project, and is legally instruments are grants and cooperative responsible for carrying out the terms agreements and subawards.

and conditions of the award. Head of Contracting Activity or HCA Renewal award means an award which means a DOE official with senior man adds one or more additional budget peagement authority for the award and riods to an existing project period. administration of financial assistance Research and development means all instruments within one or more DOE research activities, both basic and aporganizational elements.

plied, 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. (61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999] $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 $$ 600.114 and 600.212, are not deviations. Awards to foreign entities and the waiver of the cost sharing requirements in $ 600.30 or the patent requirements of $600.27 are not subject to this section.

(2) A single-case deviation is a deviation which applies to one financial assistance transaction and one applicant, recipient, or subrecipient only.

(3) A class deviation is a deviation which applies to more than one financial assistance transaction, applicant, recipient, or subrecipient.

(b) The DOE officials specified in paragraph (c) of this section may authorize a deviation only upon a written determination that the deviation is

(1) Necessary to achieve program objectives;

(2) Necessary to conserve public funds;

(3) Otherwise essential to the public interest; or

(4) Necessary to achieve equity.

(c) Approval procedures. (1) A deviation request must be in writing and must be submitted to the responsible DOE Contracting Officer. An applicant for a subaward or a subrecipient shall submit any such request through the recipient.

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

(i) A single-case deviation may be authorized by the responsible HCA. Any proposed single-case deviation from the requirements of $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 Director, Procurement and Assistance Management or designee. Any proposed class deviation from the requirements of $ 600.27 concerning patents or data shall be forwarded through the Assistant General Counsel for Technology Transfer and Intellectual Property or designee.

(3) Whenever the approval of OMB, other Federal agency, or other DOE office is required to authorize a deviation, the proposed deviation must be submitted to the Director, Procurement and Assistance Management or designee for concurrence prior to submission to the authorizing official.

(d) Notice. Whenever a request for a class deviation is approved, DOE shall publish a notice in the FEDERAL REGISTER at least 15 days before the class deviation becomes effective. Whenever a class deviation is contained in a proposed program rule, the preamble to the proposed rule shall describe the purpose and scope of the deviation.

(e) Subawards. A recipient may use a deviation in a subaward only with the prior written approval of a DOE Contracting Officer. [61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999) $ 600.5 Selection of award instrument.

(a) If DOE has administrative discretion in the selection of the award instrument, the DOE decision as to whether the relationship is principally one of procurement or financial assistance shall be made pursuant to the Federal Grant and Cooperative Agreement Act as codified at 31 U.S.C. 6301

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6306. A grant or cooperative agreement shall be the appropriate instrument, in accordance with this part, when the principal purpose of the relationship is the transfer of money or property to accomplish a public purpose of support or stimulation authorized by Federal statute. In selecting the type of financial assistance instrument, DOE shall limit involvement between itself and the recipient in the performance of a project to the minimum necessary to achieve DOE program objectives.

(b) When it is anticipated that substantial involvement will be necessary between DOE and the recipient during performance of the contemplated activity, the award instrument shall be a cooperative agreement rather than a grant. Every cooperative agreement shall explicitly state the substantial involvement anticipated between DOE and the recipient during the performance of the project. Substantial involvement exists if:

(1) Responsibility for the management, control, or direction of the project is shared by DOE and the recipient; or

(2) Responsibility for the performance of the project is shared by DOE and the recipient.

(c) Providing technical assistance or guidance of a programmatic nature to a recipient does not constitute substantial involvement if:

(1) the recipient is not required to follow such guidance;

(2) the technical assistance or guidance is not expected to result in continuing DOE involvement in the performance of the project; or

(3) The technical assistance or guidance pertains solely to the administrative requirements of the award.

(d) In cooperative agreements, DOE has the right to intervene in the conduct or performance of project activities for programmatic reasons. Intervention includes the interruption or modification of the conduct or performance of project activities. Suspension or termination of the cooperative agreement under $$ 600.162 and 600.243 does not constitute intervention in the conduct or performance of project activities.

$ 600.6 Eligibility.

(a) General. DOE shall solicit applications for financial assistance in a manner which provides for the maximum amount of competition feasible.

(b) Restricted eligibility. If DOE restricts eligibility, an explanation of why the restriction of eligibility is considered necessary shall be included in the solicitation, program rule, or published notice. Except when authorized by statute or program rule, if the aggregate amount of DOE funds available for award under a solicitation or published notice is $1,000,000 or more, such restriction of eligibility shall be supported by a written determination initiated by the program office and approved by an official no less than two levels above the initiating program official and concurred in by the Contracting Officer and legal counsel. Where the amount of DOE funds is less than $1,000,000, the cognizant HCA and the Contracting Officer may approve the determination.

(c) Noncompetitive financial assistance. DOE may award a grant or cooperative agreement on a noncompetitive basis only if the application satisfies one or more of the following selection criteria:

(1) The activity to be funded is necessary to the satisfactory completion of, or is a continuation or renewal of, an activity presently being funded by DOE or another Federal agency, and for which competition for support would have a significant adverse effect on continuity or completion of the activity.

(2) The activity is being or would be conducted by the applicant using its own resources or those donated or provided by third parties; however, DOE support of that activity would enhance the public benefits to be derived and DOE knows of no other entity which is conducting or is planning to conduct such an activity.

(3) The applicant is a unit of government and the activity to be supported is related to performance of a governmental function within the subject jurisdiction, thereby precluding DOE provision of support to another entity.

(4) The applicant has exclusive domestic capability to perform the activity successfully, based upon unique

equipment, proprietary data, technical expertise, or other such unique qualifications.

(5) The award implements an agreement between the United States Government and a foreign government to fund a foreign applicant.

(6) Time constraints associated with a public health, safety, welfare or national security requirement preclude competition.

(7) The proposed project was submitted as an unsolicited proposal and represents a unique or innovative idea, method, or approach which would not be eligible for financial assistance under a recent, current, or planned solicitation, and if, as determined by DOE, a competitive solicitation would not be appropriate.

(8) The responsible program Assistant Secretary (or official of equivalent authority), with the approval of the Secretary of Energy, determines that a noncompetitive award is in the public interest. This authority may not be delegated.

(d) Approval requirements. Determinations of noncompetitive awards shall be approved, prior to award, by the initiating program official, by the responsible program Assistant Secretary (or official of equivalent authority) or designee, who shall be not less than two organizational levels above that of the project officer, by the Contracting Officer and shall be concurred in by local legal counsel. Where the amount of DOE funds is less than $1,000,000 for a noncompetitive financial assistance award, the determination shall be approved by the cognizant HCA and the Contracting Officer. Concurrence for a particular award or class of awards of $1,000,000 or less may be waived by local legal counsel.

(e) Documentation requirements. A determination of noncompetitive financial assistance (normally prepared by the responsible program official) explaining the basis for the proposed noncompetitive award shall be placed in the award file. (61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999)

$ 600.7 Small and disadvantaged and

women-owned business participa

tion. (a) DOE encourages the participation in financial assistance awards of small businesses, including those owned by socially and economically disadvantaged individuals and women, of historically black colleges, and of colleges and universities with substantial minority enrollments.

(b) For definitions of the terms in paragraph (a) of this section, see the Higher Education Act of 1965, and 15 U.S.C. 644, as amended by the Federal Acquisition Streamlining Act (FASA), and implementing regulations under FASA issued by the Office of Federal Procurement Policy.

(c) When entering into contracts under financial assistance awards, recipients and subrecipients shall comply with the requirements of Section 600.144 or Section 600.236, as applicable. $ 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

194-031 D-01--4

Business Daily when potential appli- 81.063, and the name and address of the cants include for-profit organizations DOE office from which additional inor when there is the potential for sig formation and loan application forms nificant contracting opportunities can be obtained; under the resulting financial assistance (10) Appropriate periods or due dates awards.

for submission of applications and a (b) Subawards. In accordance with the statement describing the consequences provisions of the applicable statute and of late submission. If programs have esprogram rules, if a DOE financial as tablished a series of due dates to allow sistance program involves the award of for the comparison of applications financial assistance by a recipient to a against each other, these dates shall be subrecipient, the recipient shall pro indicated in the solicitation; vide sufficient advance notice so that (11) The types of projects or activipotential subrecipients may prepare ties eligible for support; timely applications and secure pre (12) Evaluation criteria and the requisite reviews and approvals.

weight or relative importance of each, (c) Contents of solicitation. Each solic which may include one or more of the itation shall provide information as following or other criteria, as appromay be necessary to allow potential priate: applicants to decide whether to submit (i) Qualifications of the applicant's an application, to understand how ap personnel who will be working on the plications will be evaluated, and to project; know what the obligations of a recipi (ii) Adequacy of the applicant's faent would be. At a minimum, each so cilities and resources; licitation must include:

(iii) Cost-effectiveness of the project; (1) A control number assigned by the (iv) Adequacy of the project plan or issuing DOE office;

methodology; (2) The amount of money available (v) Management capability of the apfor award and, if appropriate, the ex plicant; pected size of individual awards broken (vi) Sources of financing available to down by areas of priority or emphasis, the project. Any requirement conand the expected number of awards; cerning cost sharing shall be clearly

(3) The type of award instrument or stated (See also $ 600.30, Cost Sharing). instruments to be used;

Cost sharing is generally encouraged. (4) The Catalog of Federal Domestic However, unless cost sharing is reAssistance number for the program; quired by the solicitation, it shall not (5) Who is eligible to apply;

be considered in the evaluation process (6) The expected duration of DOE and shall be considered only at the support or the period of performance; time the award is negotiated.

(7) An application form or the format (vii) Relationship of the proposed to be used, location for application sub- project to the objectives of the solicimission, and number of copies required; tation;

(8) The name of the responsible DOE (13) A listing of program policy facContracting Officer (or, for program tors, if any, indicating the relative imnotices or solicitations issued by the portance of each, if appropriate. Examprogram office, the program office con ples of program policy factors are: tact) to contact for additional informa (i) Geographic distribution; tion, and, as appropriate, an address (ii) Diverse types and sizes of appliwhere application forms may be ob cant entities; tained;

(iii) A diversity of methods, ap(9) Whether loans are available under proaches, or kinds of work; and the DOE Minority Economic Impact (iv) Projects which are complemen(MEI) loan program, 10 CFR part 800, to tary to other DOE programs finance the cost of preparing a finan projects; cial assistance application, and, if MEI (14) References to or copies of: loans are available, a general descrip (i) Statutory authority for the protion of the eligibility requirements for gram; such a loan, a reference to Catalog of (ii) Applicable rules, including the Federal Domestic Assistance Number appropriate subparts of this part;

or

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