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an award, the Board shall have jurisdiction to review:

(1) 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 (a)(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) $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)

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

(3) Which of the actions authorized under $ 600.122(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 8600.243(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)

8600.28 Noncompliance.

(a) Except for noncompliance determinations under 10 CFR part 1040, whenever DOE determines that a recipient 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 recipient (by certified mail, return receipt requested) a written notice setting 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

8600.29 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, $ 600.122(n), $ 600.162(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), $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;

(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 $8600.250 through 600.252);

(6) A statement of the awardee's right to appeal a termination for cause pursuant to $600.26; 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 $ 600.28, $$ 600.160 through 600.162 or $$ 600.243 through 600.244 is appropriate, either DOE or the awardee may initiate a termination of a award (or portion thereof) as described in this para

graph. If the awardee initiates a termination, the awardee must notify DOE in writing and specify the awardee's reasons for requesting the termination, the proposed effective date of the termination, and, in the case of a partial termination, a description of the activities to be terminated, and an appropriate budget revision. DOE shall terminate a award or portion thereof under this paragraph only if both parties agree to the termination and the conditions under which it shall occur. If DOE determines that the remaining activities under a partially terminated award would not accomplish the purpose for which the award was originally awarded, DOE may terminate the entire award.

(e) Effect of termination. The awardee shall incur no new obligations after the effective date of the termination of a award (or portion thereof), and shall cancel as many outstanding obligations as possible. DOE shall allow full credit to the awardee for the DOE share of noncancellable obligations properly incurred by the awardee prior to the effective date of the termination.

(1) Subgrants. Awardees shall follow the policies and procedures in this section and in $600.28, $$ 600.160 through 600.162 or $$ 600.243 through 600.244 for suspending and terminating subgrants. [47 FR 44091, Oct 5, 1982. Redesignated and amended at 53 FR 8047, Mar. 11, 1988; 59 FR 53266, Oct. 21, 1994)

8 600.30 Responsible applicant.

(a) The signature of the applicant or an authorized official of the applicant organization on the application shall represent the applicant's preaward assurance that it is in compliance with or shall comply with

(1) The standards for management of funds, property, and other assets, and the procurement of goods and services, as specified in this subpart and in the solicitation, if any;

(2) Generally applicable requirements which require such an assurance except that a separate signed assurance is required by 10 CFR 1040.4; and

(3) The terms and conditions of the award as described in the program rule, the solicitation, and this part.

of

(b) Prior to making a new, continuation, or renewal award, DOE reserves the right to make a preaward review of the applicant's ability to manage and account for a DOE award, if awarded, or to determine compliance (or intended compliance) with generally ap plicable requirements. If DOE determines on the basis of such a review or otherwise documents that the applicant is not in compliance or cannot or will not comply with such standards and requirements, DOE shall determine, prior to award, that the applicant is not responsible and may use special restrictive conditions or disapprove the application.

(c) The awardee shall assure that ap plicants for subawards comply with applicable management standards and generally applicable requirements as provided in paragraphs (a) and (b) of this section. (47 FR 44091, Oct. 5, 1982, as amended at 50 FR 42356, Oct. 18, 1985; 51 FR 4297, Feb. 4, 1986. Redesignated and amended at 53 FR 8046, Mar. 11, 1988; 54 FR 23959, June 5, 1989)

(2) A detailed description of the awardee's plans for the conduct of the project during the coming year; and

(3) A detailed budget for the upcoming budget period, including an estimate

unobligated balances ($ 600.32(c)). For research awards, a detailed budget need not be submitted if the new or renewal application contains future-year budgets sufficiently detailed to allow DOE to review and approve the categories and elements of cost. Should the research award have a change in scope or significant change in the budget, DOE may request a detailed budget. DOE shall review a continuation application for the adequacy of the awardee's progress and planned conduct of the project in the subsequent budget period. DOE shall not require a continuation application to compete against any other application. The amount and award of continuation funding is subject to the availability of appropriations.

(c) Renewal awards. Discretionary renewal awards may be made either on the basis of a solicitation or on a noncompetitive basis. If DOE proposes to restrict eligibility for a discretionary renewal award to the incumbent grantee, the noncompetitive award must be justified

accordance with $600.7(b)(2). Renewal applications must be submitted no later than 5 months prior to the scheduled expiration of the project period unless a program rule or other published instruction establishes a different application deadline. Before DOE may make a renewal award for a formula grant, the grantee must submit a revised or amended State plan in accordance with program rules and other instructions from DOE.

(d) Extensions. (1) Recipients of research awards, except recipients of SBIR awards (See 8600.181(d)), may extend the expiration date of the final budget period of the project (thereby extending the project period) if additional time beyond the established expiration date is needed to assure adequate completion of the original scope of work within the funds already made available. A single extension, which shall not exceed twelve (12) months, may be made for this purpose, and must be made prior to the originally established expiration date. The recipi

$ 600.31 Funding.

(a) General. The project period during which DOE expects to provide award support for an approved project shall be specified on the Notice of Financial Assistance Award (DOE Form 4600.1). For formula award programs, the project period is the period of time covered by an approved State plan. As indicated in paragraphs (b) and (e) of this section, a project period may consist of one or more budget periods.

(b) Budget period and continuation awards. If the project period is 12 months or less, the budget period and the project period shall be coextensive. Except as provided in paragraph (e) of this section, multiyear awards, including formula awards, shall be funded annually within the approved project period. Funding for each budget period within the project period shall be contingent on DOE approval of a continuation application submitted in accordance with a schedule specified by DOE (see $ 600.112(c) and $ 600.210(b)). A continuation application shall include

(1) A statement of technical progress or status of the project to date;

in

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 Contracting Officer determines that the request would have been approved had it been submitted in a timely manner.

(1) Erceptions. 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) 8 600.32 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 of 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

35 of the United States Code (USC). 39367, Oct. 28, 1986. Redesignated and amend

(2) Subject invention means any invention of ed at 53 FR 8047, Mar. 11, 1988; 54 FR 41948, Oct. 13, 1989; 59 FR 53266, Oct. 21, 1994)

the grantee conceived or first actually reduced to practice in the performance of work

under this grant. 3 600.33 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 Patent Counsel, in accordance with the

(6) Nonprofit Organization means a univer

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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