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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 approved, 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 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.

[47 FR 44083, Oct. 5, 1982, as amended at 54 FR 41946, Oct. 13, 1989; 57 FR 4, Jan. 2, 1992]

§ 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 information.

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

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 Government 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 available 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

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of this apThe data contained in pages plication have been submitted in confidence and contain trade secrets or proprietary information, and such data shall be used or disclosed only for evaluation purposes, provided that if this applicant receives an award as a result of or in connection with the submission of this application, DOE shall have the right to use or disclose the data herein to the extent provided in the award. This restriction does not limit the Government's right to use or disclose data obtained without restriction from any source, including the applicant.

(2) Unless a solicitation specifies otherwise, DOE shall not refuse to consider an application solely on the basis that the application is restrictively marked.

of data) (3) Data (or abstracts marked with the Notice under paragraph (c)(1) shall be retained in confidence and used by DOE or its designated representatives as specified in $600.16 solely for the purpose 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 following clause, 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.

RIGHTS TO DATA IN APPLICATION Except for technical data contained in pages of the recipient's application, dated which are asserted by the recipient as being proprietary data, it is agreed that as a condition of this award, and notwithstanding the provisions of any notice appearing on the application, the Government shall have the right to use, duplicate, disclose and have others do so for any purpose whatsoever the technical data not identified in the above blanks contained in the application upon which this award is based.

$600.19 Application evaluation and selection.

(a) Applications for discretionary financial assistance, whether solicited or unsolicited, shall be evaluated by reviewers in accordance with this rule, DOE directives, and the terms and conditions of the solicitation, if any.

(b) In deciding which new applications (other than unsolicited applications) or renewal applications for discretionary financial assistance to select for award, DOE shall consider the results of the application evaluation business and financial) (technical, which has been conducted in accordance with this section, plus any intergovernmental review comments (see $600.11), or other available advice or information as well as published program policy factors, if any. The selection of applications under any given solicitation shall be made by responsible program Assistant Secretary or his or her designee; unless, in accordance with applicable DOE directives, such selection is required to be made by the Secretary or designee.

(c) Program policy factors are factors which the selection official may use to select a range of projects that would best serve program objectives. DOE shall describe in the solicitation any program policy factor that may be used in making selections, the justification for its use and, if appropriate, the relative priority of each such factor. Examples of program policy factors are: (1) Geographic distribution;

(2) Diverse types and sizes of applicant entities;

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

(4) Projects which are complementary to other DOE programs projects.

or

(d) After the selection of an application, DOE may, if necessary, enter into negotiations with an applicant. Such negotiations are not a commitment that DOE will make an award.

(e) For cooperative agreements, DOE may use the source selection process (see 48 CFR 915.612 and 915.613) for the solicitation and evaluation of applications and selection of awardees.

(f) See §600.3 for the selection process for continuation applications and § 600.14 for the selection process for unsolicited applications.

[53 FR 5262, Feb. 22, 1988, as amended at 53 FR 8046, Mar. 11, 1988]

§ 600.20 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) An award may be made only if DOE approves an application and/or State plan, and if there are sufficient appropriated funds.

(c) 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 §600.32, § 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.

[47 FR 44083, Oct. 5, 1982, as amended at 51 FR 39366, Oct. 28, 1986; 53 FR 8046, Mar. 11, 1988; 54 FR 23959, June 5, 1989; 59 FR 53265, Oct. 21, 1994]

§ 600.21 Contents of award.

Each financial assistance award shall be made on a Notice of Financial Assistance Award which includes the following, as applicable:

(a) Identification information for the project being supported, including a unique instrument number.

(b) The dates of the budget period covered by the award, and if additional funding is contemplated after such period, the expected duration of the project period.

(c) The class of recipient (e.g. state government, educational institution, individual).

(d) The source and amount of DOE funds authorized for obligation by the recipient during the budget period specified; the amount and/or the percentage of any required cost sharing; and estimates of total project costs for the duration of DOE support.

(e) General terms and conditions of the award, including or incorporating by reference the applicable program statute and rules, the applicable subparts of this part, and, as appropriate, generally applicable requirements.

(f) Special terms or conditions of award, including those necessary to protect DOE interests or to achieve program objectives, and those which may be required to be included on an instrument-by-instrument basis, (e.g. reporting requirements and payment method).

(g) The approved budget for the budget period, including any modifications resulting from negotiation.

(h) A reference to or inclusion of the approved application and/or State plan, or other statement of the purpose and objectives of the approved project (e.g. statement of work).

(i) The names, addresses and telephone numbers of recipient and DOE staff with responsibilities for the project.

(j) Any other provisions necessary to establish the respective rights, duties, obligations, and responsibilities of DOE and the recipient, consistent with the requirements of this part.

§ 600.22 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.

(b) The award, when mailed to the applicant, shall be accompanied by a transmittal letter or other written notice indicating the date by which the award must be acknowledged and returned. The date established by DOE shall be not less than two weeks from the date of the notice. No DOE funds shall be disbursed until the award document signed by the recipient is received by DOE.

(1) 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.

(2) In the event a recipient acknowledges acceptance of an award but does not commence performance under the award within a reasonable period of time, DOE may terminate the award in accordance with the applicable provisions of this part.

(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.

$600.23 Notification to unsuccessful

applicants.

(a) 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. If the notice of non-selection involves a solicited application, the unsuccessful applicant may specify, in its request for a more detailed explanation, any objections to or apparent defects in the selection procedures followed by DOE.

(b) In the case of a State plan disapproval, DOE shall follow the notifi

cation procedures contained in the applicable statute or program rule.

[47 FR 44083, Oct. 5, 1982, as amended at 48 FR 34404, July 28, 1983]

$600.24 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.

DOE shall not be obligated to make any additional, supplemental, continuation, renewal, or other award for the same or any other purpose.

$600.25 Access to records.

(a) Recipient records. DOE and the Comptroller General of the United States, or any of their authorized representatives, shall have the right of access to any books, documents, papers, or other records of a recipient that are directly pertinent to the DOE financial assistance award, in order to make audit, examination, excerpts, and transcripts.

(b) Subrecipient records. DOE, the Comptroller General of the United States, and the recipient, or any of their authorized representatives, shall have the right of access to any books, documents, papers, or other records of a subrecipient which are directly pertinent to the financial assistance subaward, in order to make audit, examination, excerpts, and transcripts.

(c) Contractor and subcontractor records. With respect to 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 (if the contract was awarded under a financial assistance subaward) the subrecipient, 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 directly pertinent to that contract or subcontract, in order to make audit, examination, excerpts, and transcripts.

(d) Duration of access right. The right of access may be exercised for as long as the applicable records are retained 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]

§ 600.26 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 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 § 600.122(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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