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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;

(11) A DOE decision not to make a continuation award based on any of the determinations described in paragraph (d)(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 (d)(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. (48 FR 34404, July 28, 1983, as amended at 53 FR 8046, Mar. 11, 1988; 59 FR 53265, Oct. 21, 1994)

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

(3) Which of the actions authorized under $600.122(n), 9600.162(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), 9600.162(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. (53 FR 8046, Mar. 11, 1988, as amended at 54 FR 23959, June 5, 1989; 59 FR 53265, Oct. 21, 1994)

$ 600.27 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. (49 FR 4323. Feb. 3, 1984, as amended at 53 FR 38940, Oct. 4, 1988) $600.28 Noncompliance.

(a) Except for noncompliance determinations under 10 CFR part 1040, whenever DOE determines that a recip ient 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

er shall provide to the recipient (by certified mail, return receipt requested) a written notice set ting 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

$ 600.29 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 $600.28, 8600.122(n), 9600.162(a) or 600.243(a);

(2) an immediate debarment or debarment of the awardee under $ 600.27.

(b) Notification requirements. Except as provided in 8600.28, $ 600.162(a) or 600.243(a); or 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 $600.28(a), 9600.162(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;

(4) Instructions concerning which graph. If the awardee initiates a termicosts shall be allowable during the pe- nation, the awardee must notify DOE riod of suspension, or instructions con- in writing and specify the awardee's cerning allowable termination costs, reasons for requesting the termination, including in either case, instructions the proposed effective date of the terconcerning any subgrants or contracts; mination, and, in the case of a partial

(5) Instructions concerning required termination, a description of the acfinal reports and other closeout actions tivities to be terminated, and an approfor terminated awards (see $$ 600.170 priate budget revision. DOE shall terthrough 600.173 and $$ 600.250 through minate a award or portion thereof 600.252);

under this paragraph only if both par(6) A statement of the awardee's ties agree to the termination and the right to appeal a termination for cause conditions under which it shall occur. pursuant to $ 600.26; and

If DOE determines that the remaining (7) The dated signature of a DOE Con- activities under a partially terminated tracting Officer

award would not accomplish the pur(c) Suspension. (1) Unless DOE and the pose for which the award was origiawardee agree otherwise, no period of nally awarded, DOE may terminate the suspension shall exceed 90 days.

entire award. (2) DOE may cancel the suspension at (e) Effect of termination. The awardee any time, up to and including the date shall incur no new obligations after the of expiration of the period of suspen effective date of the termination of a sion, if the awardee takes satisfactory award (or portion thereof), and shall corrective action before the expiration cancel as many outstanding obligadate of the suspension or gives DOE tions as possible. DOE shall allow full satisfactory evidence that such correc- credit to the awardee for the DOE tive action will be taken.

share of noncancellable obligations (3) If the suspension has not been properly incurred by the awardee prior cancelled by the expiration date of the to the effective date of the termiperiod of suspension, the awardee shall nation. resume the suspended activities or (0) Subgrants. Awardees shall follow project unless, prior to the expiration the policies and procedures in this secdate, DOE notifies the awardee in writ tion and in $600.28, $$ 600.160 through ing that the period of suspension shall 600.162 or $$ 600.243 through 600.244 for be extended consistent with paragraph

suspending and terminating subgrants. (c)(1) of this section or that the award shall be terminated.

[47 FR 44091, Oct 5, 1982. Redesignated and (4) As of the effective date of the sus

amended at 53 FR 8047, Mar. 11, 1988; 59 FR

53266, Oct. 21, 1994) pension, DOE shall withhold further payments and shall allow new obliga

8 600.30 Responsible applicant. tions incurred by the awardee during the period of suspension only if such (a) The signature of the applicant or costs were authorized in the notice of an authorized official of the applicant suspension or in a subsequent letter.

organization on the application shall (5) If the suspension is cancelled or represent the applicant's preaward asexpires and the award is not termi- surance that it is in compliance with nated, DOE shall reimburse the award- or shall comply withee for any authorized allowable costs (1) The standards for management of incurred during the suspension and, if funds, property, and other assets, and necessary, may amend the award to ex the procurement of goods and services, tend the period of performance.

as specified in this subpart and in the (d) Termination by mutual agreement. solicitation, if any; In addition to any situation where a (2) Generally applicable requirements termination for cause pursuant to which require such an assurance except 8600.28, $$ 600.160 through 600.162 or that a separate signed assurance is re88 600.243 through 600.244 is appropriate, quired by 10 CFR 1040.4; and either DOE or the awardee may initi- (3) The terms and conditions of the ate a termination of a award (or por- award as described in the program rule, tion thereof) as described in this para- the solicitation, and this part.

(b) Prior to making a new, continu- (2) A detailed description of the ation, or renewal award, DOE reserves awardee's plans for the conduct of the the right to make a preaward review of project during the coming year; and the applicant's ability to manage and (3) A detailed budget for the upcomaccount for a DOE award, if awarded, ing budget period, including an estior to determine compliance (or in

mate of unobligated balances tended compliance) with generally ap (8 600.32(c)). For research awards, a deplicable requirements. If DOE deter

tailed budget need not be submitted if mines on the basis of such a review or the new or renewal application conotherwise documents that the appli

tains future-year budgets sufficiently cant is not in compliance or cannot or

detailed to allow DOE to review and will not comply with such standards

approve the categories and elements of and requirements, DOE shall deter

cost. Should the research award have a mine, prior to award, that the appli

change in scope or significant change cant is not responsible and may use

in the budget, DOE may request a de

tailed budget. DOE shall review a conspecial restrictive conditions or dis

tinuation application for the adequacy approve the application.

of the awardee's progress and planned (c) The awardee shall assure that ap

conduct of the project in the subseplicants for subawards comply with ap

quent budget period. DOE shall not replicable management standards and

quire a continuation application to generally applicable requirements as

compete against any other application. provided in paragraphs (a) and (b) of

The amount and award of continuation this section.

funding is subject to the availability of (47 FR 44091, Oct. 5, 1982, as amended at 50 FR appropriations. 42356, Oct. 18, 1985; 51 FR 4297, Feb. 4, 1986.

(c) Renewal awards. Discretionary reRedesignated and amended at 53 FR 8046, newal awards may be made either on Mar. 11, 1988; 54 FR 23959, June 5, 1989)

the basis of a solicitation or on a non

competitive basis. If DOE proposes to 8600.31 Funding.

restrict eligibility for a discretionary (a) General. The project period during renewal award to the incumbent grantwhich DOE expects to provide award

ee, the noncompetitive award must be support for an approved project shall

justified in accordance with be specified on the Notice of Financial

8600.7(b)(2). Renewal applications must Assistance Award (DOE Form 4600.1).

be submitted no later than 5 months For formula award programs, the

prior to the scheduled expiration of the project period is the period of time cov

project period unless a program rule or ered by an approved State plan. As in

other published instruction establishes dicated in paragraphs (b) and (e) of this

a different application deadline. Before section, a project period may consist of

DOE may make a renewal award for a one or more budget periods.

formula grant, the grantee must sub

mit a revised or amended State plan in (b) Budget period and continuation

accordance with program rules and awards. If the project period is 12

other instructions from DOE. months or less, the budget period and

(d) Extensions. (1) Recipients of rethe project period shall be coextensive.

search awards, except recipients of Except as provided in paragraph (e) of

SBIR awards (See $ 600.181(d)), may exthis section, multiyear awards, includ

tend the expiration date of the final ing formula awards, shall be funded an

budget period of the project (thereby nually within the approved project pe

extending the project period) if addiriod. Funding for each budget period

tional time beyond the established exwithin the project period shall be con

piration date is needed to assure adetingent on DOE approval of a continu quate completion of the original scope ation application submitted in accord of work within the funds already made ance with a schedule specified by DOE available. A single extension, which (see $600.112(c) and 8600.210(b)). A con- shall not exceed twelve (12) months, tinuation application shall include may be made for this purpose, and

(1) A statement of technical progress must be made prior to the originally or status of the project to date;

established expiration date. The recipi

10 CFR Ch. II (1-1-96 Edition)

ent must notify the cognizant DOE Contracting Officer in the awarding office in writing within ten (10) days of making the extension.

(2) DOE may extend any budget period of any type of financial assistance without the need for competition or a justification of restricted eligibility if:

(i) In the case of the final budget period of a project period, the additional time necessary is 18 months or less in total, or for all other budget periods, the additional time necessary is 6 months or less in total; and

(ii) The grantee submits a written request for an extension before the expiration date of the budget period in process and includes a justification for the extension along with an expenditure plan for the use of any additional funds requested. An expenditure plan need not be provided when no additional funds are requested, unless the grantee intends to rebudget funds in such a way as to require DOE prior ap. proval or unless the grantee is instructed otherwise by the Contracting Officer.

(e) Retroactive extensions. DOE may retroactively extend an expired budget period provided that the request for such extension is submitted no later than 30 days after its expiration, the awardee can satisfactorily explain why the request was not submitted prior to the expiration date, and the Contract ing Officer determines that the request would have been approved had it been submitted in a timely manner.

(1) Exceptions. A single budget period exceeding 12 months may be coextensive with the project period only if:

(1) Required by statute; or

(2) The project is primarily for construction, alteration and renovation, or acquisition of real property, or other type of activity that requires an extended funding commitment by DOE and for which an annual continuation review is inappropriate; or

(3) At the time of award, the total period of DOE support is expected to be less than 18 months; or

(4) The award is a Phase II SBIR awards (see $ 600.181(c)). (47 FR 44091, Oct. 5, 1982, as amended at 51 FR 39367, Oct. 28, 1986. Redesignated and amended at 53 FR 8046, Mar. 11, 1988, and further amended at 53 FR 12140, Apr. 13, 1988; 54 FR 41947, Oct. 13, 1989; 57 FR 4, Jan. 2, 1992; 57 FR 40085, Sept. 2, 1992; 59 FR 53266, Oct. 21, 1994) 8600.32 Calculation of award.

(a) Total approved budget. “Total approved budget" means the amount of costs authorized to be incurred during the budget period, as shown on the Notice of Financial Assistance Award, by a awardee and any subawardee or contractor as well as the estimated value of in-kind contributions, to carry out an approved project. The total ap proved budget consists of DOE funds for both direct and indirect costs and any required cost sharing. The total approved budget shall indicate the maximum amount of funds DOE shall provide and the minimum amount or percentage of any cost sharing the awardee is required to provide.

(b) Excess funds. During the term of the final budget period (or only budget period should the award have only one) for which support is provided, a awardee must notify DOE whenever it becomes apparent to the awardee that the amount of DOE funding authorized is expected to exceed its needs by more than $5,000 or 5 percent of the DOE award, whichever is greater. DOE may reduce the award by an amount which does not exceed the total amount of excess funds.

(c) Unobligated balances (1) Other than research awards. When the awardee has unobligated balances remaining at the end of a budget period (see $600.152 and $ 600.241) such funds may be used in the subsequent budget period if such use is authorized in the terms and conditions of the award or is included in the total approved budget shown in an amended Notice of Financial Assistance Award.

(2) Research grants. Any unobligated balance of funds which remains at the end of any funding period, except the final funding period of the project period, may be carried over to the next

funding period, and may be used to de- as those for the “Appropriate Techfray costs of the period into which it is nology” program and the program for carried over. The recipient shall not be development of inventions referred to entitled to reimbursement if a continu- DOE by the National Bureau of Standation award is not made. Recipients ards under Sec. 14 of the Federal Nonmay be requested to provide informa- Nuclear Energy Research and Develoption with regard to expenditures in the ment Act of 1974. progress report covering the previously (1) Patent Rights (Small Business Firm completed period. The recipient shall or Nonprofit Organization). This clause also include in the Financial Status shall apply to grants to small business Report, for the previously completed firms and domestic nonprofit organizaperiod, the amount of the unobligated tions where such grants have as a purbalance as of the end of the funding pe- pose the conduct of experimental, deriod.

velopmental, demonstration, or re(d) Added funding not required. Noth search work and where the small busiing in paragraph (c) of this section ness firm or domestic nonprofit organishall in any way require the DOE to in zation states in writing that it qualicrease the total amount obligated for fies as a small business firm or domesthe project.

tic nonprofit organization. In excep(e) Adjustments. Whenever DOE ad- tional circumstances, DOE may, as dejusts the amount of an award under termined by Patent Counsel, use a patthis subpart, it shall also make an ap ent rights clause other than the clause propriate upward or downward adjust specified in this paragraph (b)(1). ment to the amount of required cost sharing in order that the adjusted PATENT RIGHTS (SMALL BUSINESS FIRM OR award maintain any required percent

NONPROFIT ORGANIZATION) age of DOE and non-Federal participa

(a) Definitions. (1) Invention means any intion in the costs of the project.

vention or discovery which is or may be pat(47 FR 44091, Oct. 5, 1982, as amended at 51 FR

entable or otherwise protectable under title 39367, Oct. 28, 1986. Redesignated and amend

35 of the United States Code (USC).

(2) Subject invention means any invention of ed at 53 FR 8047, Mar. 11, 1988; 54 FR 41948,

the grantee conceived or first actually reOct. 13, 1989; 59 FR 53266, Oct. 21, 1994)

duced to practice in the performance of work

under this grant. 8 600.33 Patents, data, and copyrights.

(3) Practical Application means to manufac(a) General. Grants shall be awarded ture in the case of a composition or product, and administered by DOE in compli to practice in the case of a process or methance with the patent, data, and copy od, or to operate in the case of a machine or right provisions of this section, 41 CFR

system; and, in each case, under such condipart 9-9 and, for grants to small busi

tions as to establish that the invention is

utilized and that its benefits are, to the exness firms and domestic nonprofit or

tent permitted by law or Government regulaganizations, with OMB Circular A-124,

tions, available to the public on reasonable which contains the definitions of

terms. "small business firm" and "nonprofit (4) Made when used in relation to any inorganization" applicable to this sec- vention means the conception or first actual tion. DOE shall specify, in each award,

reduction to practice of such invention. the applicable patent, data, and copy

(5) Small Business Firm means a small busi

ness concern as defined at section 2 of Public right provisions.

Law 85-536 (15 USC 632) and implementing (b) Required clauses. DOE shall deter

regulations of the Administrator of the mine which of the clauses listed in this

Small Business Administration. For the purparagraph or in 41 CFR part 9-9 applies, pose of this clause, the size standard for based on DOE review of the applica small business concerns involved in Governtion, other information submitted by ment procurement, contained in 13 CFR the applicant, and any negotiations.

121.3-8, and in subcontracting, contained in These clauses may be modified by DOE

13 CFR 121.3-12, will be used.

(6) Nonprofit Organization means a univerPatent Counsel, in accordance with the

sity or other institution of higher education procedures of 41 CFR part 9-9, for a

or an organization of the type described in particular grant or, in the case of a section 501(c)(3) of the Internal Revenue Code class waiver of patent rights under 41 of 1954 (26 USC 501(c)) and exempt from taxCFR part 9-9, for a class of grants such ation under section 501(a) of the Internal

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