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from the responsible official or his or her designee.

(2) If the deviation sought applies to a class of applications and constitutes a deviation from the requirements of this part, approval for deviation must be obtained in accordance with $600.4. If such request for deviation is ap proved, all details of the review procedure utilized and the proceedings and determination must be fully documented.

(h) Solicitation information. For solicited applications, if the types of reviewers are known at the time of solicitation, or if there is a potential for the use of non-DOE evaluators, this information shall be included in the solicitation.

(i) Outside reviewers. An outside reviewer shall be required to sign a write ten 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. (47 FR 44083, Oct. 5, 1982, as amended at 54 FR 41946, Oct. 13, 1989; 57 FR 4, Jan. 2, 1992)

evaluation purposes unless such information is generally available to the public, is already the property of the Government or the Government already has unrestricted use rights, or is or has been made available to the Gov. ernment from any source, including the applicant, without restriction.

(b) Definitions. For purposes of this section

(1) Proprietary data means technical data which embody trade secrets developed at private expense, such as design procedures or techniques, chemical composition of materials, or manufacturing methods, processes, or treatments, including minor modifications thereof, provided that such data:

(i) Are not generally known or avail. able from other sources without obligation concerning their confidentiality;

(ii) Have not been made available by the owner to others without obligation concerning their confidentiality; and

(iii) Are not already available to the Government without obligation concerning their confidentiality.

(2) Technical data means recorded information, regardless of form or characteristic, of a scientific or technical nature. It may, for example, document research, experimental, developmental, demonstration, or engineering work or be usable or used to define a design or process or to procure, produce, support, maintain, or operate material. The data may be graphic or pictorial delineations in media such as drawings or photographs, text in specifications or related performance or design type documents, or computer software (including computer programs, computer software data bases, and computer software documentation). Examples of technical data include research and engineering data, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identification, and related information. Technical data, as used in this section, does not include financial reports, cost analyses, and other information incidental to financial assistance administration.

(c) Treatment of application information. (1) An application may include technical data and other data, including trade secrets and/or privileged or

8 600.17 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 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.

$ 600.18 Authorized uses of informa

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

confidential commercial or financial (5) The following clause, which apinformation, which the applicant does plies only to technical data and not to not want disclosed to the public or other data such as privileged or conused by the Government for any pur- fidential commercial or financial inforpose other than application evaluation. mation shall apply to every award. To protect such data, the applicant

RIGHTS TO DATA IN APPLICATION should specifically identify each page including each line or paragraph there

Except for technical data contained in of containing the data to be protected

pages — of the recipient's application, and mark the cover sheet of the appli

dated —, which are asserted by the recipi

ent as being proprietary data, it is agreed cation with the following Notice as

that as a condition of this award, and notwell as referring to the Notice on each

withstanding the provisions of any notice appage to which the Notice applies.

pearing on the application, the Government

shall have the right to use, duplicate, disNOTICE

close and have others do so for any purpose The data contained in pages — of this ap

whatsoever the technical data not identified plication have been submitted in confidence

in the above blanks contained in the applicaand contain trade secrets or proprietary in

tion upon which this award is based. formation, and such data shall be used or disclosed only for evaluation purposes, pro

8600.19 Application evaluation and sevided that if this applicant receives an award

lection. as a result of or in connection with the sub (a) Applications for discretionary fimission of this application, DOE shall have nancial assistance, whether solicited or the right to use or disclose the data herein

unsolicited, shall be evaluated by reto the extent provided in the award. This re

viewers in accordance with this rule, striction does not limit the Government's right to use or disclose data obtained with

DOE directives, and the terms and conout restriction from any source, including

ditions of the solicitation, if any. the applicant.

(b) In deciding which new applica

tions (other than unsolicited applica(2) Unless a solicitation specifies oth

tions) or renewal applications for diserwise, DOE shall not refuse to con

cretionary financial assistance to sesider an application solely on the basis

lect for award, DOE shall consider the that the application is restrictively

results of the application evaluation marked.

(technical, business and financial) (3) Data (or abstracts of data)

which has been conducted in accordmarked with the Notice under para

ance with this section, plus any intergraph (c)(1) shall be retained in con

governmental review comments (see fidence and used by DOE or its des

8600.11), or other available advice or inignated representatives as specified in formation as well as published program $600.16 solely for the purpose of evalu

policy factors, if any. The selection of ating the proposal. The data so marked

applications under any given solicitashall not be disclosed or used for any tion shall be made by responsible proother purpose except to the extent pro gram Assistant Secretary or his or her vided in any resulting award, or to the designee; unless, in accordance with extent required by law, including the applicable DOE directives, such selecFreedom of Information Act (5 U.S.C. tion is required to be made by the Sec552) (10 CFR part 1004). The Govern- retary or designee. ment shall not be liable for disclosure (c) Program policy factors are factors or use of unmarked data and may use which the selection official may use to or disclose such data for any purpose. select a range of projects that would

(4) The Government shall obtain un- best serve program objectives. DOE limited rights in the technical data shall describe in the solicitation any contained in any application which re- program policy factor that may be used sults in an award except those portions in making selections, the justification of the technical data which the appli- for its use and, if appropriate, the relcant asserts and properly marks as pro- ative priority of each such factor. Exprietary data, or which are not directly amples of program policy factors are: related to or will not be utilized in the (1) Geographic distribution; project and are deleted from the appli- (2) Diverse types and sizes of application with the concurrence of DOE. cant entities;

(3) A diversity of methods, ap (a) Identification information for the proaches, or kinds of work; and

project being supported, including a (4) Projects which are complemen unique instrument number. tary to other DOE programs or (b) The dates of the budget period projects.

covered by the award, and if additional (d) After the selection of an applica funding is contemplated after such petion, DOE may, if necessary, enter into riod, the expected duration of the negotiations with an applicant. Such project period. negotiations are not a commitment (c) The class of recipient (e.g. state that DOE will make an award.

government, educational institution, (e) For cooperative agreements, DOE individual). may use the source selection process (d) The source and amount of DOE (see 48 CFR 915.612 and 915.613) for the funds authorized for obligation by the solicitation and evaluation of applica recipient during the budget period tions and selection of awardees.

specified; the amount and/or the per(f) See $600.3 for the selection process centage of any required cost sharing; for continuation applications and and estimates of total project costs for 8600.14 for the selection process for un the duration of DOE support. solicited applications.

(e) General terms and conditions of (53 FR 5262, Feb. 22, 1988, as amended at 53

the award, including or incorporating FR 8046, Mar. 11, 1988)

by reference the applicable program

statute and rules, the applicable sub8 600.20 Legal authority and effect of parts of this part, and, as appropriate, an award.

generally applicable requirements. (a) A DOE financial assistance award (f) Special terms or conditions of is valid only if it is in writing and is award, including those necessary to signed by a DOE Contracting Officer. protect DOE interests or to achieve

(b) An award may be made only if program objectives, and those which DOE approves an application and/or may be required to be included on an State plan, and if there are sufficient instrument-by-instrument basis, (e.g. appropriated funds.

reporting requirements and payment (C) DOE funds awarded under a grant method). or cooperative agreement shall be obli (g) The approved budget for the budggated as of the date the DOE Contract et period, including any modifications ing Officer signs the award; however, resulting from negotiation. the recipient is not authorized to incur (h) A reference to or inclusion of the costs under an award prior to the be approved application and/or State plan, ginning date of the budget period or other statement of the purpose and shown in the award except as may be objectives of the approved project (e.g. authorized in accordance with $600.32, statement of work). 8600.125(e) or 8600.230 of this part. The (i) The names, addresses and teleduration of the DOE financial obliga phone numbers of recipient and DOE tion shall not extend beyond the expi staff with responsibilities for the ration date of the budget period shown project. in the award unless authorized by a (j) Any other provisions necessary to DOE Contracting Officer by means of a establish the respective rights, duties, continuation or renewal award or other obligations, and responsibilities of DOE extension of the budget period.

and the recipient, consistent with the [47 FR 44083, Oct. 5, 1982, as amended at 51 FR

requirements of this part. 39366, Oct. 28, 1986; 53 FR 8046, Mar. 11, 1988; 54 FR 23959, June 5, 1989, 59 FR 53265, Oct. 21. 8 600.22 Recipient acknowledgement of

award.

(a) After signature by the DOE Con$ 600.21 Contents of award.

tracting Officer, the award shall be Each financial assistance award shall sent to the applicant. The applicant be made on a Notice of Financial As shall be required to return a signed sistance Award which includes the fol- copy of the award acknowledging aclowing, as applicable:

ceptance.

1994)

(b) The award, when mailed to the cation procedures contained in the ap applicant, shall be accompanied by a plicable statute or program rule. transmittal letter or other written no

[47 FR 44083, Oct. 5, 1982, as amended at 48 FR tice indicating the date by which the

34404, July 28, 1983) award must be acknowledged and returned. The date established by DOE 8600.24 Maximum DOE obligation. shall be not less than two weeks from

The maximum DOE obligation to the the date of the notice. No DOE funds

recipient is shall be disbursed until the award doc

(a) For monetary awards, the amount ument signed by the recipient is re- shown in the award as the amount of ceived by DOE.

DOE funds obligated, and (1) In the event an applicant declines (b) Any designated property. an award or fails to acknowledge ac

DOE shall not be obligated to make ceptance of an award, DOE shall

any additional, supplemental, continudeobligate the funds obligated by the

ation, renewal, or other award for the award after providing the applicant

same or any other purpose. with at least two weeks written notice of DOE's intention to deobligate.

$ 600.25 Access to records. (2) In the event a recipient acknowl- (a) Recipient records. DOE and the edges acceptance of an award but does Comptroller General of the United not commence performance under the States, or any of their authorized repaward within a reasonable period of resentatives, shall have the right of actime, DOE may terminate the award in cess to any books, documents, papers, accordance with the applicable provi or other records of a recipient that are sions of this part.

directly pertinent to the DOE financial (c) After the recipient acknowledges assistance award, in order to make the award, the terms and conditions of audit, examination, excerpts, and tranthe award may be amended only upon scripts. the written request or with the written (b) Subrecipient records. DOE, the concurrence of the recipient unless the Comptroller General of the United amendment is one which DOE may States, and the recipient, or any of make unilaterally in accordance with a their authorized representatives, shall program rule or this part.

have the right of access to any books,

documents, papers, or other records of 8600.23 Notification to unsuccessful a subrecipient which are directly pertiapplicants.

nent to the financial assistance

subaward, in order to make audit, ex(a) DOE shall promptly notify in

amination, excerpts, and transcripts. writing each applicant whose applica

(c) Contractor and subcontractor tion has not been selected for award or

records. With respect to any negotiated whose application cannot be funded be

contract or subcontract in excess of cause of the unavailability of appro

$10,000 under a grant or cooperative priated funds. If the application was

agreement, DOE, the Comptroller Gennot selected, the written notice shall

eral of the United States, the recipient briefly explain why the application was

and (if the contract was awarded under not selected and, if for grounds other

a financial assistance subaward) the than unavailability of funds, shall offer

subrecipient, or any of their authorized the unsuccessful applicant the oppor

representatives shall have the right of tunity for a more detailed explanation

access to any books, documents, paupon request. If the notice of non-selec

pers, or other records of the contractor tion involves a solicited application, or subcontractor which are directly the unsuccessful applicant may specify, pertinent to that contract or subin its request for a more detailed expla- contract, in order to make audit, exnation, any objections to or apparent amination, excerpts, and transcripts. defects in the selection procedures fol- (d) Duration of access right. The right lowed by DOE.

of access may be exercised for as long (b) In the case of a State plan dis- as the applicable records are retained approval, DOE shall follow the notifi- by the recipient, subrecipient, contrac

tor, or subcontractor. (See $$ 600.153 and 600.242 for record retention requirements for grants and cooperative agreements based on recipient type.) (47 FR 44083, Oct. 5, 1982, as amended at 53 FR 8046, Mar. 11, 1988; 59 FR 53265, Oct. 21, 1994) 8600.26 Disputes and appeals.

(a) Final determination. Whenever practicable, DOE shall attempt to resolve informally any dispute over the award or administration of financial assistance. At the initiative of DOE or upon the written request of an applicant for a continuation award or of a recipient, DOE shall mail (by certified mail) a brief written determination signed by a Contracting Officer, setting forth DOE's final disposition of any dispute which is not resolved informally. 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.

(b) Right of appeal. Except as provided in paragraph (d)(1) of this section, the final determination under paragraph (a) 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. If the final determination under paragraph (a) of this section involves a dispute over which the Board has jurisdiction as provided in paragraph (d)(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. If

Te the final determination under paragraph (a) of this section involves a dispute over which the Board has no jurisdiction as provided in paragraph (d)(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.

(c) 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.

(d) Review on appeal. (1) The Board shall have no jurisdiction to review:

(i) Any preaward dispute (except as provided in paragraph (d)(2)(ii) of this section), including use of any special restrictive condition pursuant to &$ 600.114 or $600.212;

(ii) DOE denial of a request for a deviation under $600.4 or $600.206 of this part;

(iii) DOE denial of a request for a budget revision or other change in the approved project under $$ 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 $$ 600.122(n); $600.162(a)(1), (3) for suspensions only, (4); or $600.243(a)(1), (a)(3) for suspensions only; or 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 8600.122(h), $$ 600.140 through 600.149, $600.221(g) or 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 (d)(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 (d)(1) of this section) of

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