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(2) Noncompetitive financial assistance. DOE may award a grant or cooperative agreement on a noncompetitive basis (other than as a result of the acceptance of an unsolicited application meeting the selection criteria of

§ 600.14(e)(1)(ii) or an application for a continuation award in accordance with § 600.31(b)) only if the application satisfies one or more of the selection criteria in paragraph (b)(2)(i) of this section and is supported by a written determination of noncompetitive financial assistance prepared in accordance with the provisions of paragraphs (b)(2) (ii) and (iii) of this section. In addition,

an

announcement of the intent to make a noncompetitive financial assistance award and an explanation of why a noncompetitive financial assistance award is necessary shall be published in the FEDERAL REGISTER at least 14 calendar days prior to making an award. Public comments (or inquiries) to this announcement must be resolved by the DOE office issuing such announcement. Any such noncompetitive financial assistance is not subject to the solicitation requirements of $600.9.

(i) Criteria for justifying noncompetitive financial assistance. In order for a noncompetitive award to be made under the authority of paragraph (b)(2) of this section, it must satisfy one or more of the following selection criteria in addition to the types of factors listed in § 600.14(d):

(A) 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.

(B) The activity(ies) is (are) 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(ies).

(C) The applicant is a unit of government and the activity to be supported is related to performance of a govern

mental function within the subject jurisdiction, thereby precluding DOE provision of support to another entity.

(D) The applicant has exclusive domestic capability to perform the activity successfully, based upon unique equipment, proprietary data, technical expertise, or other such unique qualifications.

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

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

(G) A specific recipient has been statutorily designated.

(H) The responsible Assistant Secretary, with the approval of the Director, determines that a noncompetitive award is in the public interest. This authority may not be delegated.

(ii) Documentation requirements. A determination of noncompetitive financial assistance (normally prepared by the responsible program official (project officer)) is required to explain the basis for the proposed noncompetitive award. The determination, the purpose of which is to justify funding on a noncompetitive basis, shall be placed in the award file and must, as a minimum, include the following information:

(A) Name of the sponsoring program office and the awarding office, the type of award proposed (grant or cooperative agreement), and the proposed recipient.

(B) A description of the nature of the financial assistance to be provided (e.g. research grant, conference grant, etc.). the amount and availability of DOE funds required, any cost sharing proposed or required, and the statutory authority for the proposed award.

(C) A statement of whether the application was solicited or unsolicited and the nature of any significant preapplication contact between the applicant and the Department. If received on an unsolicited basis, a statement of why the application does not meet the selection criteria of § 600.14(e)(1).

(D) To the extent relevant, a discussion of the programmatic evaluation conducted and the results of that eval

uation, including the overall merit and relevance to the DOE mission, the anticipated objectives and probability of success in meeting them, the quality of the applicant's personnel and facilities, and the appropriateness and adequacy of the proposed budget.

(E) A brief description of the public purpose of support or stimulation to be served by the proposed award and, in nontechnical terms, identification of any particular significance or specialized character of the activity proposed to be funded.

(F) A statement of which one(s) of the criteria in paragraph (b)(2)(i) of this section is (are) being relied upon to justify the action and an explanation in general, nontechnical detail why each such criterion applies.

(iii) Approval requirements. Except as provided below, all determinations of noncompetitive financial assistance under paragraph (b)(2) of this section must be:

(A) Approved, prior to award, by the initiating program official (project officer), the responsible program Assistant Secretary or his or her designee, who shall be not less than two organizational levels above that of the project officer, and the Contracting Officer for the awarding office issuing the solicitation, and

(B) Concurred in by local legal counsel.

Where the amount of DOE funds is $100,000 or less for a noncompetitive financial assistance award under any program for which the HCA has been formally assigned cognizance, the determination shall be approved by the HCA and the Contracting Officer. Concurrence for a particular award or class of awards of $100,000 or less may be waived by local legal counsel, if they so elect.

(c) DOE employees. (1) An applicant individual who is a former DOE employee or an applicant organization that is substantially owned or controlled by one or more former DOE employees may be declared ineligible for DOE financial assistance if such applicant does not comply with the requirements of 10 CFR part 1010, subpart C. (2) Except as provided in paragraph (c)(3) of this section, a current DOE employee and a business concern or or

ganization substantially owned or controlled by one or more current DOE employees are not eligible for DOE financial assistance.

(3) The Director, with the concurrence of the Assistant General Counsel for Standards of Conduct, may exempt an applicant from the restriction of paragraph (c)(2) of this section if the applicant is determined to have unique expertise or technical resources and if it is determined that providing financial assistance to the applicant would be in the public interest. DOE shall publish in the FEDERAL REGISTER a notice of any exemption under this paragraph at least 30 days prior to making an award to the exempted applicant. No exemption may be granted to a DOE employee who is or was involved in initiating, developing, reviewing or administering the financial assistance program under which assistance is being sought, or to a DOE employee who is considered "supervisory" under the Department of Energy Organization Act (42 U.S.C. 7211(a)).

(4) In reviewing any proposed financial assistance award, the Assistant General Counsel for Standards of Conduct shall consider the prohibition of 18 U.S.C. 203 (Section 203 prohibits a Government employee from receiving compensation from persons other than the United States for services rendered by the employee or another before a Government agency in relation to a particular matter in which the United States is a party or has a direct and substantial interest).

[47 FR 44083, Oct. 5, 1982, as amended at 53 FR 12138, Apr. 13, 1988; 57 FR 3, Jan. 2, 1992; 59 FR 53265, Oct. 21, 1994]

§ 600.8 Small and disadvantaged business participation.

(a) DOE shall provide adequate opportunities for small businesses, including socially and economically disadvantaged small business concerns, to compete for DOE financial assistance awards consistent with the program statute or other Federal law, implementing rules, and program needs.

(b) DOE may use small business preferences or set-asides in DOE financial assistance programs only when authorized or required by Federal statute. DOE shall include a citation to such

statutory authority in any solicitation that provides for small business preference or a set-aside.

(c) DOE shall require recipients and subrecipients to take affirmative action with regard to small and disadvantaged businesses in contracts under financial assistance awards and subawards only as authorized by Federal statute, program rules, and this part.

$600.9 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 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 (other than a program rule which serves to solicit applications), e.g., PONS and PRDAS, may be issued only by a DOE Contracting Officer.

(2) DOE shall publish either a copy or a notice of the availability of a financial assistance solicitation in the FEDERAL REGISTER. If the potential applicants are limited to State governments, DOE may, in advance of FEDERAL REGISTER publication, mail a copy of the solicitation simultaneously to each potential applicant. DOE shall publish solicitations or notices in the Commerce Business Daily when potential applicants include for-profit organizations or when there is the potential for significant contracting opportunities under the resulting financial assistance awards. In order to reach the widest possible audience of potentially interested applicants, DOE may also publish notices or copies of solicitations in

trade and professional journals, news media, and use other means of communication, as appropriate.

(b) Subawards. In accordance with the provisions of the applicable statute and program rules, if a DOE financial assistance program involves the award of financial assistance by a recipient to a subrecipient, the recipient shall provide sufficient advance notice so that potential subrecipients may prepare timely applications and secure prerequisite reviews and approvals.

(c) Contents of solicitation. Each solicitation shall include the following types of information and such other information as may be necessary to allow potential applicants to decide whether to submit an application, to understand how applications will be evaluated, and to know what the obligations of a recipient would be:

(1) A control number assigned by the issuing DOE office;

(2) The amount of money available for award and, if appropriate, the expected size of individual awards broken down by areas of priority or emphasis, and the expected number of awards;

(3) The type of award instrument or instruments to be used;

(4) Catalog of Federal Domestic Assistance number for the program;

(5) Who is eligible to apply (see § 600.7);

(6) The expected duration of DOE support or the period of performance;

(7) Application form or format to be used, location for application submission, and number of copies required;

(8) The name of the responsible DOE Contracting Officer (or, for program notices, the program office contact) to contact for additional information, and, as appropriate, an address where application forms may be obtained;

(9) Whether loans are available under the DOE Minority Economic Impact (MEI) loan program, 10 CFR part 800, to finance the cost of preparing a financial assistance application, and, if MEI loans are available, a general description of the eligibility requirements for such a loan, a reference to Catalog of Federal Domestic Assistance Number 81.063, and the name and address of the DOE office from which additional information and loan application forms can be obtained;

(10) Appropriate periods or due dates for submission of applications and a statement describing the consequences of late submission. If programs have established a series of due dates to allow for the comparison of applications against each other, these dates shall be indicated in the solicitation;

(11) The types of projects or activities eligible for support;

(12) Evaluation criteria (and the weight or relative importance of each), which may include one or more of the following or other criteria, as appropriate:

(i) Qualifications of the applicant's personnel who will be working on the project;

(ii) Adequacy of the applicant's facilities and resources;

(iii) Cost-effectiveness of the project; (iv) Adequacy of the project plan or methodology;

(v) Management capability of the applicant;

(vi) Sources of financing available to the project. Any expectation concerning cost sharing shall be clearly stated. While cost sharing is encouraged, unless the cost sharing expectation is addressed in the solicitation, it shall not be considered in the evaluation process and shall be considered only at the time the award is negotiated.

(vii) Relationship of the proposed project to the objectives of the solicitation;

(13) A listing of program policy factors, if any, indicating the relative importance of each, if appropriate (see §600.19(a));

(14) References to or copies of:

(1) Statutory authority for the program;

(ii) Applicable rules, including the appropriate subparts of this part;

(iii) Other terms and conditions applicable to awards to be made under the solicitation, including allowable and unallowable costs and reporting requirements;

(iv) Policies and procedures for patents, technical data, copyrights, audiovisual productions and exhibits;

(v) Any required assurances not included in the application form;

(15) The deadline for submission of required or optional preapplications;

(16) Date, time, and location of any briefing for applicants;

(17) Required presubmission reviews and clearances, including a statement as to whether review under OMB Circular A-95 ("Review, Evaluation, and Coordination of Federal and Federally Assisted Projects and Programs"), Attachment A, part I, is required and, if required, the consequences of noncompliance (see § 600.11);

(18) Dates by which selections and awards are expected to be made and whether unsuccessful applications will be returned to the applicant or be retained by DOE and for what period of time;

(19) A statement that DOE is under no obligation to pay for any costs associated with preparation or submission of applications if an award is not made. If an award is made, such costs may be allowable as provided in the applicable cost principles (see § 600.127);

(20) A statement that DOE reserves the right to fund, in whole or in part, any, all, or none of the applications submitted in response to the solicitation; and

(21) Any other relevant information, including explanatory information or justifications required by this part.

[47 FR 44083, Oct. 5, 1982, as amended at 53 FR 5261, Feb. 22, 1988; 54 FR 41946, Oct. 13, 1989; 59 FR 53265, Oct. 21, 1994]

$600.10 Form and content of applications and preapplications.

(a) General. Applications shall be required for all financial assistance projects or programs. Preapplications shall be required for all construction, land acquisition, and land development projects or programs for which the need for Federal funding exceeds $100,000 unless the cognizant program office makes a written program determination to waive the preapplication requirement.

(b) Forms. Applications or preapplications shall be on the form or in the format and in the number of copies specified by DOE either in this part, in a program rule, or in the applicable solicitation, and must include all required information. For State governments, local governments, or Indian tribal governments, applications shall be made on the applicable forms in the

Standard Form 424 (SF 424) series. Such applicants shall not be required to submit more than the original and two copies of the application or preapplication.

(Approved by OMB under control number 1910-0400.)

(c) Signature. The application and any preapplication must be signed by the individual who is applying or by an individual who is authorized to act for the applicant organization and to commit the applicant to comply with the terms and conditions of the financial assistance instrument, if awarded. (d) Contents of a preapplication. In general, financial a preapplication shall include:

assistance

(1) A facesheet containing basic identifying information. The facesheet shall be the Standard Form (SF)424;

(2) A brief narrative statement describing the project objectives and method of accomplishment; and

(3) A project budget identifying the estimated amounts of Federal funds and non-federal contributions (cash or in-kind) needed to support the project.

(e) Contents of an application. In general, a financial assistance application shall include:

(1) A facesheet containing basic identifying information. The facesheet shall be the Standard Form (SF)424;

(2) A detailed narrative description of the proposed project, including the objectives of the project and the applicant's plan for carrying it out;

(3) A budget with supporting justification (see §§ 600.31, 600.112, and 600.303); and

(4) Any required preaward assur

ances.

(f) Incomplete applications. DOE may return an application which does not include all information and documentation required by statute, program rule, and the solicitation, if in the judgment of the DOE Contracting Officer, the nature of the omission precludes review of the application.

(g) Supplemental information. During the review of a complete application, DOE may request the submission of additional information only if the infor

mation is essential to evaluate the application.

[53 FR 5261, Feb. 22, 1988, as amended at 53 FR 8045, Mar. 11, 1988; 54 FR 23959, June 5, 1989; 57 FR 40085, Sept. 2, 1992; 59 FR 53265, Oct. 21, 1994]

§ 600.11 Intergovernmental review.

Intergovernmental review of DOE financial assistance shall be conducted in accordance with 10 CFR part 1005. [48 FR 29184, June 24, 1983]

§ 600.12 Generally applicable requirements.

(a) Generally applicable requirement means Federal policies of administrative requirements that apply to (1) more than one DOE financial assistance award, or (2) a DOE financial assistance program and one or more other Federal assistance programs. Generally applicable requirements include, but are not limited to, the requirements of this part, Federal statutes, the OMB Circulars and other governmentwide guidance implemented by this part, Executive Orders, and the requirements identified in appendix A of this part.

(b) Except as expressly exempted by Federal statute or program rule, recipients and subrecipients of DOE financial assistance shall comply with all generally applicable requirements to which, by the terms of such requirements, they are subject. DOE may require the submission of preaward assurances of compliance with one or more generally applicable requirements and may conduct preaward and postaward compliance reviews only to the extent such actions are authorized by this part, Federal statute or rule, Executive Order, or OMB directive.

(c) Provisions shall be made to design and construct all buildings, in which DOE funds are used, to meet appropriate seismic design and construction standards. Seismic codes and standards meeting or exceeding the provisions of each of the model codes listed in this paragraph are considered to be appropriate for purposes of this part. The model codes are as follows:

(1) 1991 Uniform Building Code, of the International Council of Building Officials,

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