[Federal Register Volume 60, Number 152 (Tuesday, August 8, 1995)]
[Proposed Rules]
[Pages 40323-40336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19149]



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DEPARTMENT OF ENERGY

10 CFR Part 600

RIN 1991AB23


Financial Assistance Rules; Regulatory Reduction

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) today is proposing to amend its 
Financial Assistance Rules (Rules) to streamline, simplify, and improve 
the DOE financial assistance process. The rules have been rewritten to 
eliminate coverage that is unnecessary, to present clear coverage, and 
to retain only that coverage that is considered suitable for a 
regulation. The proposed changes primarily affect internal DOE 
procedures and will give greater authorities to program and field 
contracting offices in soliciting, reviewing, and processing 
applications and making awards. The patent, data and copyright 
provisions have been streamlined and updated to reflect the recent 
changes in the Department of Energy Acquisition Regulations. The 
Governmentwide uniform administrative requirements for grants and 
cooperative agreements to higher education institutions, hospitals, and 
other nonprofits and to governmental recipients are not changed by this 
proposed rulemaking. The Governmentwide requirements pertaining to 
audits of State and local governments remain unchanged.

DATES: Comments should be submitted on or before September 7, 1995.

ADDRESSES: Comments should be addressed to: Cherlyn Seckinger, Business 
and Financial Policy Division (HR-51), Office of Procurement and 
Assistance Management, U.S. Department of Energy, 1000 Independence 
Avenue, SW., Washington, DC 20585, (202) 586-8192.

SUPPLEMENTARY INFORMATION:

Table of Contents

I.  Introduction and Purpose 

[[Page 40324]]

II. Overview of the Organization of the DOE Financial Assistance 
Rules
III. Changes to 10 CFR Part 600
IV. Review Under Executive Order 12612
V. Regulatory Review
VI. Review Under the Regulatory Flexibility Act
VII. Review Under the Paperwork Reduction Act
VIII. Review Under the National Environmental Policy Act
IX. Review Under Executive Order 12778
X. Public Comments
XI. Public Hearing Determination

I. Introduction and Purpose

    The Department of Energy is proposing to amend Subpart A of its 
Financial Assistance Rules to simplify and streamline the financial 
assistance process in keeping with Departmental and Governmentwide 
initiatives to improve the way the Department does business. The 
proposed changes primarily affect DOE internal procedures contained in 
Subpart A pertaining to the solicitation, evaluation, and award 
processes, and will have little or no impact on requirements applicable 
to recipients of DOE financial assistance. In most instances, the 
proposed rule will not contain detailed internal procedures for DOE 
officials, but instead establish standards or basic requirements. For 
example, the section on objective merit review for financial assistance 
applications would be reduced to the essential elements required for an 
adequate merit review system. In other sections, decision making would 
be delegated to the lowest appropriate level which in many cases is at 
the contracting activity where the financial assistance awards are made 
and administered. One new section has been added to give DOE the 
flexibility in appropriate circumstances to make small dollar awards on 
a fixed obligation basis. In a fixed obligation award, a fixed amount 
of funds are issued in support of a project without a requirement for 
Federal monitoring of actual costs subsequently incurred. These awards 
are intended for use in support of projects where there is certainty 
about the costs and project accomplishments.
    In DOE's implementation of the uniform administrative requirements 
for grants and agreements with institutions of higher education, 
hospitals, and other nonprofit organizations on October 21, 1994 (59 FR 
53260), DOE chose to continue to extend the administrative requirements 
for grants and agreements to commercial entities. In doing this 
streamlining review of the rule, we found the patent and data 
provisions of the uniform administrative requirements in Section 
600.136 on Intangible Property needed modifications to clarify how 
Section 600.136 applied to commercial organizations with respect to 
patent, data, and copyright coverage and to cross-reference the 
specific DOE patent, data, and copyright coverage of the existing 
Section 600.33. This proposed rule attempts to make clear DOE patent 
and data provisions for all recipients including large businesses and 
foreign entities. The appropriate changes to the uniform administrative 
requirements of Section 600.136 to the new Section 600.27 are included 
in this proposed rule.

II. Overview of Organization of DOE Financial Assistance Rules

    When DOE implemented the uniform administrative requirements of OMB 
Circular A-110 for Grants and Cooperative Agreements With Institutions 
of Higher Education, Hospital, Other Non-Profit Organizations and 
Commercial Organizations in October, 1994, DOE also reordered the 
subparts of the Financial Assistance Rules.
    The rules as changed in October of 1994 consist of five subparts: 
Subpart A, General; Subpart B, Uniform Administrative Requirements for 
Grants and Cooperative Agreements With Institutions of Higher 
Education, Hospitals, Other Non-Profit Organizations and Commercial 
Organizations; Subpart C, Uniform Administrative Requirements for 
Grants and Cooperative Agreements to State and Local Governments; 
Subpart D, Cooperative Agreements; and Subpart E, Audits of State and 
Local Governments. As part of our streamlining efforts, we decided we 
no longer needed a separate subpart for Cooperative Agreements because 
many of the requirements pertinent to cooperative agreements such as 
the application, funding, and administrative requirements were the same 
as for grants. The few areas that were different (such as the 
substantial involvement and patent and data provisions) we decided to 
integrate into the general coverage in Subpart A.
III. Changes to 10 CFR Part 600

    Section 600.2  Applicability would be rewritten in simpler language 
to state that the DOE financial assistance rules apply to financial 
assistance applications and new, continuation and renewal awards.
    Section 600.3  Definitions would be reduced to cover only those 
terms which are not defined elsewhere in the rule; therefore, the 
definitions sections in Subparts B and C, are still needed.
    Section 600.4  Deviations would be changed to update citations 
only.
    Sections 600.5  Selection of award instrument would be expanded to 
cover in greater detail what DOE means by substantial involvement under 
cooperative agreements. This definition of substantial involvement is 
consistent with the existing coverage in Subpart D and the Federal 
Grant and Cooperative Agreement Act.
    Section 600.6  Discretionary awards would be eliminated since it is 
primarily internal guidance. Special solicitation instruments called 
Program Opportunity Notices and Program Research and Development 
Announcements would be eliminated. In keeping with the simplification 
objective, it was decided these special instruments are no longer 
necessary and the general coverage under solicitations would meet our 
needs. The policy statement regarding competition in financial 
assistance has been retained, but would be moved to the new Section 
600.6 Eligibility.
    Section 600.7  Eligibility would be renumbered 600.6 and changed to 
increase the threshold requiring Assistant Secretary or designee 
approval of restricted eligibility and noncompetitive determinations 
from $250,000 to $1,000,000. This would provide for greater decision-
making authority at the local level where the financial assistance 
awards are being made and administered.
    The requirement of the existing rule for a Federal Register notice 
for noncompetitive awards which has been waived by a class deviation 
would be eliminated by this rulemaking.
    Section 600.8  Small and disadvantaged business participation would 
be renumbered 600.7 and rewritten as a policy statement to encourage 
the participation of small and disadvantaged businesses in DOE 
financial assistance and contracts awarded under financial assistance 
and to include in the policy women-owned businesses and historically 
black colleges and universities.
    Section 600.9  Solicitation would be renumbered 600.8 and changed 
to give program offices the authority to issue solicitations. The 
current rule requires solicitations to be issued by a contracting 
officer unless the solicitation is issued under a program rule. To 
ensure uniformity and compliance with the fundamental requirements of 
the solicitation process, any solicitation would have to meet the 
requirements contained in this section regardless of who issues it. Any 
solicitation issued by a program office 

[[Page 40325]]
would require coordination with the contracting office prior to 
issuance.
    Section 600.10  Form and content of applications would be amended 
to eliminate the requirements pertaining to preapplication content 
because DOE programs rarely require preapplication submissions. If 
needed by DOE, the solicitation itself would describe to potential 
applicants the information required in a preapplication based on 
specific program needs.
    Section 600.11  Intergovernmental review would be remain the same.
    Section 600.12  Generally applicable requirements would be revised 
for simplicity and clarity.
    Section 600.13  Application deadlines would be deleted as being too 
rigid as a general rule covering all financial assistance applications. 
Instead, the simplified requirement covered in 600.8 under 
solicitations specifies that a solicitation must include information 
specifying due dates and a statement describing the consequences of 
late submission.
    Section 600.14  Unsolicited applications would be deleted and the 
procedures for noncompetitive financial assistance covered in Section 
600.6 procedures will be used. The criteria for acceptance of an 
unsolicited application would not be changed.
    Section 600.15  Notice of program interest would be renumbered 
600.10 and the coverage revised to eliminate the requirement that a 
notice contain all the information included in a solicitation.
    Section 600.16  Objective merit review would be renumbered 600.13 
and revised to allow more program office discretion in setting up a 
system provided the basic standards of a merit review system are met.
    Section 600.17  Conflict of interest would be renumbered 600.14.
    Section 600.18  Authorized uses of information would be renumbered 
600.15 and the definitions section deleted as unnecessary.
    Section 600.19  Application evaluation and selection would be 
eliminated since the process is covered under objective merit review.
    Section 600.20  Legal authority and effect of an award would be 
renumbered 600.16 and paragraph (b) eliminated since it is an internal 
administrative material and not a regulatory requirement.
    Section 600.21  Contents of award would be renumbered 600.17 and 
the essential parts of an award document summarized in a short 
paragraph.
    Section 600.22  Recipient acknowledgement of award would be 
renumbered 600.18 and reduced to the basic requirements.
    Section 600.23  Notification to unsuccessful applicants would be 
renumbered 600.19 and the requirement stated more concisely.
    Section 600.24  Maximum DOE obligation would be renumbered 600.20.
    Section 600.25  Access to records would be renumbered 600.21 and 
changed to cross-reference the Governmentwide coverage contained in 
Subparts B and C.
    Section 600.26  Disputes and appeals would be renumbered 600.22 and 
language added to cover alternative dispute resolution.
    Section 600.27  Debarment and suspension would be renumbered 
600.23.
    Section 600.28  Noncompliance would be renumbered 600.24.
    Section 600.29  Suspension and termination would be renumbered 
600.25.
    Section 600.30  Responsible applicant would be deleted since it 
doesn't add requirements that are not covered elsewhere.
    Section 600.31  Funding would be renumbered 600.26 and the 
limitations related to 12-month budget periods removed so that budget 
periods can be more easily tied to meaningful performance phases or 
activities. Also, provisions regarding retroactive extensions would be 
deleted since they establish an unnecessary restriction on actions 
which are within a contracting officer's authority to approve or 
disapprove on a case-by-case basis.
    Section 600.32  Calculation of award would be eliminated since it 
provides instructions to DOE contracting officials which do not need to 
be in a regulation. Provisions of interest to recipients pertaining to 
excess funds notifications and unobligated balances are already covered 
under the Governmentwide requirements in Subparts B and C.
    Section 600.33  Patents, data and copyrights would be renamed 
``Patent and Data Provisions'' and renumbered as 600.27. The patent, 
data and copyrights requirements for grant and cooperative agreement 
awards have been streamlined and have been revised to be consistent 
with the Department's recent updating of patent regulations for 
contracts (60 FR 11812).
    Section 600.34  New restrictions on lobbying would be renumbered 
600.28, renamed, and cross-reference the lobbying rules at 10 CFR 601.
    A new Section 600.29  Fixed obligation awards would be added to 
give DOE the flexibility to make small dollar ($100,000 or less) 
financial assistance awards on a fixed amount basis where there is 
certainty about the costs and the project accomplishments are readily 
discernable such as, conferences, workshops, equipment, and travel. 
This type of award would reduce the administrative requirements placed 
on recipients and reduce the administrative burden for both DOE and 
recipients. Fixed obligation awards have been previously authorized by 
a class deviation from 10 CFR Part 600 which is now being superseded by 
these provisions.
    In Section 600.112  Forms for applying for Federal assistance of 
Subpart B, paragraph (c) would be revised by changing the cross-
references in the parenthetical phrase ``(See Section 600.31 (b) and 
(c))'' to read ``(See Section 600.26 (b) and (c)).''
    Section 600.136  Intangible property of Subpart B would be revised 
to cross-reference the new Section 600.27 and to clarify the coverage 
for commercial organizations.
    Section 600.306  Cost sharing of Subpart D would be renumbered 
600.30 and applied to grants as well as cooperative agreements since 
choice of financial assistance instrument is irrelevant to the basic 
policy of requiring cost sharing for research, development, and 
demonstration projects.
    Subpart D Cooperative Agreements would be removed and Subpart E 
Audits of State and Local Governments would be redesignated as Subpart 
D.
    Sections 600.402, 600.403, 600.405, and 600.415 of Subpart E would 
be amended to correct the references resulting from the proposed 
streamlining changes.

IV. Review Under Executive Order 12612

    Executive Order 12612 requires that regulations, rules, 
legislation, and any other policy actions be reviewed for any 
substantial effects on States, on the relationship between the Federal 
Government and the States, or in the distribution of power and 
responsibilities among various levels of Government. If there are 
sufficient substantial direct effects, then the Executive Order 
requires preparation of a federalism assessment to be used in all 
decisions involved in promulgating and implementing a policy action. 
Today's proposed rule would revise certain policy and procedural 
requirements. However, DOE has determined that this rulemaking will not 
have a substantial direct effect on the institutional interests or 
traditional functions of States. 

[[Page 40326]]


V. Regulatory Review

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, today's action was not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs.

VI. Review Under the Regulatory Flexibility Act

    This proposed rule was reviewed under the Regulatory Flexibility 
Act of 1980, Pub.L. 96-354, 94 Stat. 1164, which requires preparation 
of a regulatory flexibility analysis for any regulation that will have 
a significant economic impact on a substantial number of small 
entities, i.e., small businesses, small organizations, and small 
governmental jurisdictions. DOE has concluded that the proposed rule 
would only affect small entities as they apply for and receive 
financial assistance, and does not create additional economic impact on 
small entities as a whole. DOE certifies that this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities and, therefore, no regulatory flexibility analysis has been 
prepared.

VII. Review Under the Paperwork Reduction Act

    No information collection or recordkeeping requirements are imposed 
upon the public by this rulemaking. Accordingly, no OMB clearance is 
required under the Paperwork Reduction Act of 1980, 44 USC 3501, et. 
seq., or OMB implementing regulations at 5 CFR Part 1320.

VIII. Review Under the National Environmental Policy Act

    DOE has concluded that this rule falls into a class of actions 
(categorical exclusions A5) that are categorically excluded from 
National Environmental Policy Act (NEPA) review because they would not 
individually or cumulatively have significant impact on the human 
environment, as determined by the Department's regulations (10 CFR Part 
1021, Subpart D) implementing the National Environmental Policy Act of 
1969 (42 U.S.C. 4321, 4331-4335, 4341-4347 (1976)). Therefore, this 
rule does not require an environmental impact statement or an 
environmental assessment pursuant to NEPA.

IX. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs each agency to adhere 
to certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 2(a) 
and (b)(2), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation specifies 
clearly any preemptive effect, effect on existing Federal law or 
regulation, and retroactive effect; describes any administrative 
proceedings to be available prior to judicial review and any revisions 
for the exhaustion of such administrative proceedings, and defines the 
terms. DOE certifies that today's rule meets the requirements of 
sections 2 (a) and (b) of Executive Order 12778.

X. Public Comments

    Interested persons are invited to participate in this rulemaking by 
submitting data, views, or arguments with respect to the changes set 
forth in this notice. Three copies of written comments should be 
submitted to the address indicated in the ADDRESSES section of this 
notice. All comments received will be available for public inspection 
in the DOE Reading Room, Room 1E-190, Forrestal Building, 1000 
Independence Avenue, SW., Washington, D.C. 20585, between the hours of 
9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. All 
written comments received by the date given in the DATES section will 
be fully considered. Any information considered to be confidential must 
be so identified and submitted in writing, one copy only. The DOE 
reserves the right to determine the confidential status of the 
information and to treat it according to our determination.

XI. Public Hearing Determination

    DOE has concluded that this proposed rule does not involve any 
significant issues of law or fact. Therefore, consistent with 5 U.S.C. 
553, DOE has not scheduled a public hearing.

List of Subjects in 10 CFR Part 600

    Accounting; Administrative practice and procedure; Government 
contracts; Grant programs, Indians, Intergovernmental relations; Loan 
programs, Lobbying; Penalties; Reporting and recordkeeping 
requirements.

    Issued in Washington, D.C., on July 31, 1995.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

    For the reasons set out in the preamble, Part 600 of Chapter II, 
Title 10 of the Code of Federal Regulations is proposed to be amended 
as set forth below:

PART 600--FINANCIAL ASSISTANCE RULES

    1. The authority citation for Part 600 continues to read as 
follows:

    Authority: Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599 (42 
U.S.C. 7254 and 7256); Pub. L. 97-258, 96 Stat. 1003-1005 (31 U.S.C. 
6301-6308), unless otherwise noted.

Subparts D and E--[Amended]

    2. The existing Subpart D ``Cooperative Agreements'' is removed and 
Subpart E ``Audits of State and Local Governments'' is redesignated as 
Subpart D, and Secs. 600.400 through 600.417 are redesignated as 
Secs. 600.300 through 600.317.


Sec. 600.112  [Amended]

    3. Section 600.112(c) is amended by revising the parenthetical 
phrase ``(See Section 600.31(b) and (c))'' to read ``(See Section 
600.26(b) and (c)).''
    4. Section 600.136 is revised to read as follows:


Sec. 600.136  Intangible property.

    (a) Recipients that are institutions of higher education, 
hospitals, and other non-profit organizations are subject to the 
following:
    (1) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, 
under an award. DOE reserves a royalty-free, nonexclusive and 
irrevocable right to reproduce, publish or otherwise use the work for 
Federal purposes, and to authorize others to do so.
    (2) Recipients are subject to applicable regulations governing 
patents and inventions. (See 10 CFR 600.27)
    (3) DOE has the right to:
    (i) Obtain, reproduce, publish or otherwise use the data first 
produced under an award.
    (ii) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (4) Title to intangible property and debt instruments acquired 
under an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized 
purpose, and the recipient shall not encumber the 

[[Page 40327]]
property without approval of DOE. When no longer needed for the 
originally authorized purpose, disposition of the intangible property 
shall occur in accordance with the provisions of Section 600.134(g).
    (b) Recipients that are commercial entities shall follow the 
provisions set forth at 10 CFR 600.27.


Sec. 600.302  [Amended]

    5. Newly redesignated Sec. 600.302 is amended in paragraph (d) by 
revising ``Sections 600.25, 600.153, 600.242, and 600.305'' to read 
``Sections 600.21, 600.153, and 600.242''.


Sec. 600.303  [Amended]

    6. In paragraph (c), of newly redesignated Sec. 600.303 revise 
``Sections 600.126, 600.226, and 600.305'' to read ``Sections 600.126 
and 600.226''.


Sec. 600.305  [Amended]

    7. In newly redesignated Sec. 600.305(b)(2)(ii)(C), revise 
``Section 600.424 of subpart E'' to read ``Section 600.324 of subpart 
D''.


Sec. 600.315  [Amended]

    8. Newly redesignated Sec. 600.315 is amended, in the first 
sentence, by revising ``Section 600.436 of subpart E'' to read 
``Section 600.336 of subpart D''.
    9. Subpart A is revised to read as follows:

Subpart A--General

Sec.
600.1  Purpose.
600.2  Applicability.
600.3  Definitions.
600.4  Deviations.
600.5  Selection of award instrument.
600.6  Eligibility.
600.7  Small and disadvantaged and women-owned business 
participation.
600.8  Solicitation.
600.9  Notice of program interest.
600.10  Form and content of applications.
600.11  Intergovernmental review.
600.12  Generally applicable requirements.
600.13  Objective merit review.
600.14  Conflict of interest.
600.15  Authorized uses of information.
600.16  Legal authority and effect of an award.
600.17  Contents of award.
600.18  Recipient acknowledgement of award.
600.19  Notification to unsuccessful applicants.
600.20  Maximum DOE obligation.
600.21  Access to records.
600.22  Disputes and appeals.
600.23  Debarment and suspension.
600.24  Noncompliance.
600.25  Suspension and termination.
600.26  Funding.
600.27  Patent and data provisions.
600.28  New restrictions on lobbying.
600.29  Fixed obligation awards.
600.30  Cost sharing.

Subpart A--General


Sec. 600.1  Purpose.

    This part implements the Federal Grant and Cooperative Agreement 
Act, Pub. L. 95-224, as amended by Public Law 97-258 (31 U.S.C. 6301-
6308), and establishes uniform policies and procedures for the award 
and administration of DOE grants and cooperative agreements. This 
subpart (Subpart A) sets forth the policies and procedures applicable 
to the award and administration of grants and cooperative agreements.


Sec. 600.2  Applicability.

    (a) Except as otherwise provided by Federal statute or program 
rule, this part applies to applications, solicitations, and new, 
continuation, and renewal awards (and any subsequent subawards).
    (b) Any new, continuation, or renewal award (and any subsequent 
subaward) shall comply with any applicable Federal statute, Federal 
rule, Office of Management and Budget (OMB) Circular and Governmentwide 
guidance in effect as of the date of such award.
    (c) Financial assistance to foreign entities is governed by this 
part and by the administrative requirements and cost principles 
applicable to their respective recipient type, e.g, governmental, non-
profit, commercial, to the extent appropriate.


Sec. 600.3  Definitions.

    Amendment means the written document executed by a DOE contracting 
officer that changes one or more terms or conditions of an existing 
financial assistance award.
    Assistance means the transfer of money, property, services or 
anything of value to a recipient to accomplish a public purpose of 
support or stimulation authorized by Federal statute, as differentiated 
from financial assistance which covers the transfer of money or 
property only. Financial assistance instruments are grants and 
cooperative agreements and subawards.
    Award means the written document executed by a DOE Contracting 
Officer, after an application is approved, which contains the terms and 
conditions for providing financial assistance to the recipient.
    Budget period means the interval of time, specified in the award, 
into which a project is divided for budgeting and funding purposes.
    Continuation award means an award for a succeeding or subsequent 
budget period after the initial budget period of either an approved 
project period or renewal thereof.
    Contract means a written procurement contract executed by a 
recipient or subrecipient for the acquisition of property or services 
under a financial assistance award.
    Contracting Officer means the DOE official authorized to execute 
awards on behalf of DOE and who is responsible for the business 
management and non-program aspects of the financial assistance process.
    DOE Patent Counsel means the Department of Energy Patent Counsel 
assisting the Contracting Officer in the review and coordination of 
patents and data related items.
    Nonprofit organization means any corporation, trust, foundation, or 
institution which is entitled to exemption under section 501(c)(3) of 
the Internal Revenue Code, or which is not organized for profit and no 
part of the net earnings of which inure to the benefit of any private 
shareholder or individual (except that the definition of ``nonprofit 
organization'' at 48 CFR 27.301 shall apply to the use of the patent 
clause at Section 600.27).
    Objective merit review means a thorough, consistent and independent 
examination of applications based on pre-established criteria by 
persons knowledgeable in the field of endeavor for which support is 
requested.
    Program rule means a rule issued by a DOE program office for the 
award and administration of financial assistance which may describe the 
program's purpose or objectives, eligibility requirements for 
applicants, types of program activities or areas to be supported, 
evaluation and selection process, cost sharing requirements, etc. These 
rules usually supplement the generic policies and procedures for 
financial assistance contained in this part.
    Project period means the total period of time indicated in an award 
during which DOE expects to provide financial assistance. A project 
period may consist of one or more budget periods and may be extended by 
DOE.
    Recipient means the organization, individual, or other entity that 
receives an award from DOE and is financially accountable for the use 
of any DOE funds or property provided for the performance of the 
project, and is legally responsible for carrying out the terms and 
conditions of the award.
    Renewal award means an award which adds one or more additional 
budget periods to an existing project period.
    Research and development means all research activities, both basic 
and applied, and all development activities that are supported at 
universities, 

[[Page 40328]]
colleges, and other non-profit institutions and commercial 
organizations. ``Research'' is defined as a systematic study directed 
toward fuller scientific knowledge or understanding of the subject 
studied. The term research also includes activities involving the 
training of individuals in research techniques where such activities 
utilize the same facilities as other research and development 
activities and where such activities are not included in the 
instruction function. ``Development'' is the systematic use of 
knowledge and understanding gained from research directed toward the 
production of useful materials, devices, systems, or methods, including 
design and development of prototypes and processes.


Sec. 600.4  Deviations.

    (a) General. (1) A deviation is the use of any policy, procedure, 
form, standard, term, or condition which varies from a requirement of 
this part, or the waiver of any such requirement, unless such use or 
waiver is authorized or precluded by Federal statute. The use of 
optional or discretionary provisions of this part, including special 
restrictive conditions used in accordance with Sections 600.114 and 
600.212, are not deviations. The waiver provisions of the patent 
requirements of Section 600.27 and awards to foreign entities are not 
subject to the requirements of this section.
    (2) A single-case deviation is a deviation which applies to one 
financial assistance transaction and one applicant, recipient, or 
subrecipient only.
    (3) A class deviation is a deviation which applies to more than one 
financial assistance transaction, applicant, recipient, or 
subrecipient.
    (b) The DOE officials specified in paragraph (c) of this section 
may authorize a deviation only upon a written determination that the 
deviation is--
    (1) Necessary to achieve program objectives;
    (2) Necessary to conserve public funds;
    (3) Otherwise essential to the public interest; or
    (4) Necessary to achieve equity.
    (c) Approval procedures. (1) A deviation request must be in writing 
and must be submitted to the responsible DOE Contracting Officer. An 
applicant for a subaward or a subrecipient shall submit any such 
request through the recipient.
    (2) Except as provided in paragraph (c)(3) of this section--
    (i) A single-case deviation may be authorized by the responsible 
Head of Contracting Activity (HCA). Any proposed single-case deviation 
from the requirements of Section 600.27 concerning patents or data 
shall be referred to the DOE Patent Counsel for review and concurrence 
prior to submission to the HCA.
    (ii) A class deviation may be authorized by the Deputy Assistant 
Secretary for Procurement and Assistance Management or his or her 
designee.
    (3) Whenever the approval of OMB, other Federal agency, or other 
DOE office is required to authorize a deviation, the proposed deviation 
must be submitted to the Deputy Assistant Secretary for Procurement and 
Assistance Management or designee for concurrence prior to submission 
to the authorizing official. Any proposed class deviation from the 
requirements of Section 600.27 concerning patents or data shall be 
forwarded through the Assistant General Counsel for Technology Transfer 
and Intellectual Property or designee.
    (d) Notice. Whenever a request for a class deviation is approved, 
DOE shall publish a notice in the Federal Register at least 15 days 
before the class deviation becomes effective. Whenever a class 
deviation is contained in a proposed program rule, the preamble to the 
proposed rule shall describe the purpose and scope of the deviation.
    (e) Subawards. A recipient may use a deviation in a subaward only 
with the prior written approval of a DOE Contracting Officer.


Sec. 600.5  Selection of award instrument.

    (a) If DOE has administrative discretion in the selection of the 
award instrument, the DOE decision as to whether the relationship is 
principally one of procurement or assistance shall be made pursuant to 
the Federal Grant and Cooperative Agreement Act as codified at 31 
U.S.C. 6301-6306. A grant or cooperative agreement shall be the 
appropriate instrument, in accordance with this part, when the 
principal purpose of the relationship is the transfer of money or 
property to accomplish a public purpose of support or stimulation 
authorized by Federal statute. DOE shall limit involvement between 
itself and the recipient in the performance of a project to the minimum 
necessary to achieve DOE program objectives.
    (b) When it is anticipated that substantial involvement will be 
necessary between DOE and the recipient during performance of the 
contemplated activity, the award instrument shall be a cooperative 
agreement rather than a grant. Substantial involvement exists if:
    (1) Responsibility for the management, control, or direction of the 
project is shared by DOE and the recipient, or
    (2) Responsibility for the performance of the project is shared by 
DOE and the recipient, or
    (3) DOE has the right to intervene in the conduct or performance of 
project activities for programmatic reasons. Intervention includes the 
interruption or modification of the conduct or performance of project 
activities. Suspension or termination of the cooperative agreement 
under Sections 600.162 and 600.243 does not constitute intervention in 
the conduct or performance of project activities.
    (4) Providing technical assistance or guidance of a programmatic 
nature to a recipient does not constitute substantial involvement if 
the recipient is not required to follow such guidance or if the 
technical assistance or guidance is not expected to result in 
continuing DOE involvement in the performance of the project.
    (5) Technical assistance or guidance which pertains to the 
administrative requirements of the award does not constitute 
substantial involvement.
    (c) Every cooperative agreement shall explicitly state the 
substantial involvement anticipated between DOE and the recipient 
during performance of the project.


Sec. 600.6  Eligibility.

    (a) General. DOE shall solicit applications for financial 
assistance in a manner which provides for the maximum amount of 
competition feasible.
    (b) Restricted eligibility. If DOE restricts eligibility, an 
explanation of why the restriction of eligibility is considered 
necessary shall be included in the solicitation, program rule, or 
published notice. If the aggregate amount of DOE funds available for 
award under such a solicitation or published notice is $1,000,000 or 
more such restriction of eligibility shall be supported by a written 
determination initiated by the program office and approved by an 
official no less than two levels above the initiating program official 
and concurred in by the Contracting Officer and legal counsel. If the 
amount of DOE funds is less than $1,000,000, the cognizant HCA and the 
Contracting Officer may approve the determination.
    (c) DOE may award a grant or cooperative agreement on a 
noncompetitive basis only if the 

[[Page 40329]]
application satisfies one or more of the following selection criteria.
    (1) 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.
    (2) The activity is 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.
    (3) The applicant is a unit of government and the activity to be 
supported is related to performance of a governmental function within 
the subject jurisdiction, thereby precluding DOE provision of support 
to another entity.
    (4) The applicant has exclusive domestic capability to perform the 
activity successfully, based upon unique equipment, proprietary data, 
technical expertise, or other such unique qualifications.
    (5) The award implements an agreement between the United States 
Government and a foreign government to fund a foreign applicant.
    (6) Time constraints associated with a public health, safety, 
welfare or national security requirement preclude competition.
    (7) The proposed project represents a unique or innovative idea, 
method, or approach which would not be eligible for financial 
assistance under a recent, current, or planned solicitation, and if, as 
determined by DOE, a competitive solicitation would not be appropriate.
    (8) The responsible program Assistant Secretary (or official of 
equivalent authority), with the approval of the Deputy Assistant 
Secretary for Procurement and Assistance Management, determines that a 
noncompetitive award is in the public interest. This authority may not 
be delegated.
    (d) 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 and shall be placed in the award file.
    (e) Approval requirements. Determinations of noncompetitive awards 
shall be approved, prior to award, by the initiating program official, 
by the responsible program Assistant Secretary (or official of 
equivalent authority) or designee, who shall be not less than two 
organizational levels above that of the project officer, by the 
Contracting Officer and shall be concurred in by local legal counsel. 
Where the amount of DOE funds is less than $1,000,000 for a 
noncompetitive financial assistance award, the determination shall be 
approved by the cognizant HCA and the Contracting Officer. Concurrence 
may be waived by local legal counsel.


Sec. 600.7  Small and disadvantaged and women-owned business 
participation.

    (a) DOE encourages the participation in financial assistance awards 
of small businesses, including those owned by socially and economically 
disadvantaged individuals and women, of historically black colleges, 
and of colleges and universities with substantial minority enrollments.
    (b) For definitions of the terms in paragraph (a) of this section, 
see the Higher Education Act of 1965, and 15 U.S.C. 644, as amended by 
the Federal Acquisition Streamlining Act, and implementing regulations 
under FASA issued by the Office of Federal Procurement Policy.
    (c) DOE shall require recipients and subrecipients to take 
affirmative action with respect to such entities in contracts under 
financial assistance awards and subawards as required under Sections 
600.144 and 600.236.


Sec. 600.8  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 (or official of equivalent 
authority) 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 may be issued by a DOE 
Contracting Officer or program office with prior concurrence of the 
contracting office.
    (2) DOE shall publish either a copy or a notice of the availability 
of a financial assistance solicitation in the Federal Register. 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.
    (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;
    (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 or solicitations issued by the program office, 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 

[[Page 40330]]
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 
generally encouraged, it shall not be considered in the evaluation 
process and shall be considered only at the time the award is 
negotiated, unless the cost sharing expectation is addressed in the 
solicitation.
    (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. Examples of program policy 
factors are:
    (i) Geographic distribution;
    (ii) Diverse types and sizes of applicant entities;
    (iii) A diversity of methods, approaches, or kinds of work; and
    (iv) Projects which are complementary to other DOE programs or 
projects;
    (14) References to or copies of:
    (i) 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, 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 E.O. 12372, ``Intergovernmental 
Review of Federal Programs'', is required.
    (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 Sections 600.127 and 
600.222);
    (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 factual basis for justifications required by this part.


Sec. 600.9  Notice of program interest.

    (a) General. (1) DOE may publish periodic Notices of Program 
Interest in the Federal Register and other media, as appropriate, which 
describes broad, general, technical problems and areas of investigation 
for which DOE may award grants or cooperative agreements.
    (2) DOE shall evaluate any application submitted under a Notice of 
Program Interest as an unsolicited application.
    (b) Contents. The notice shall include the following:
    (1) A brief description of the areas of interest for which DOE may 
provide financial assistance.
    (2) A statement about how resulting applications will be evaluated 
and the criteria for selection and funding.
    (3) An expiration date with an explanation that such a date does 
not represent a common deadline for applications but rather that 
applications may be submitted at any time before the notice expires.
    (4) The location for application submission.


Sec. 600.10  Form and content of applications.

    (a) General. Applications shall be required for all financial 
assistance projects or programs.
    (b) Forms. Applications shall be on the form or in the format and 
in the number of copies specified by DOE. (See Sections 600.112 and 
600.210)
    (c) 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
    (4) Any required preaward assurances.
    (d) Incomplete applications. DOE may return an application which is 
not signed by an authorized official and does not include all 
information and documentation required by statute, program rule, and 
the solicitation, if the nature of the omission precludes review of the 
application.
    (e) Supplemental information. During the review of a complete 
application, DOE may request the submission of additional information 
only if the information is essential to evaluate the application.


Sec. 600.11  Intergovernmental review.

    Intergovernmental review of DOE financial assistance shall be 
conducted in accordance with 10 CFR part 1005.


Sec. 600.12  Generally applicable requirements.

    (a) Generally applicable requirements means Federal policies or 
administrative requirements that apply to more than one DOE financial 
assistance award, or 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 subpart.
    (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.
    (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,
    (2) 1992 Supplement to the National Building Code, of the Building 
Official and Code Administrators International.
    (3) 1992 Amendments to the Standard Building Code, of the Southern 
Building Code Congress International.
    These codes provide a level of seismic safety that is substantially 
equivalent to 

[[Page 40331]]
the National Earthquake Hazards Reduction Program (NEHRP) Recommended 
Provisions for the Development of Seismic Regulations for New 
Buildings, 1988 Edition (Federal Emergency Management Administration 
222 and 223). Revisions of these model codes that are substantially 
equivalent to or exceed the then current or immediately preceding 
edition of the NEHRP Recommended Provisions (which are updated 
triennially) shall be considered to be appropriate standards.


Sec. 600.13  Objective merit review.

    (a) General. (1) It is the policy of DOE that any financial 
assistance be awarded through a merit-based selection process. 
Objective merit review means a thorough, consistent and independent 
examination of applications based on pre-established criteria by 
persons knowledgeable in the field of endeavor for which support is 
requested.
    (2) Each program office must establish an objective merit review 
system covering the financial assistance programs it administers. 
Objective merit review of financial assistance applications is intended 
to be advisory and is not intended to replace the authority of the 
program official with responsibility for deciding whether an award will 
be made. It is expected that the cognizant project/program officer who 
normally also reviews the proposals for technical/scientific merit, 
will review it from a program policy perspective. The objective merit 
review system must set forth the relationship between the reviewing 
individuals, or the review committees or groups, and the official who 
has the final decision-making authority. In defining this relationship, 
the system must set out, as a minimum, the decision-making and 
documentation processes to be followed by the authorized official 
responsible for selection when an adverse recommendation has been 
received through the objective merit review process.
    (b) Each formal review system must contain the elements listed 
below.
    (1) Basic review standards. Each application may be assessed from a 
policy/programmatic perspective prior to undergoing merit review. Those 
that meet policy and programmatic considerations shall generally be 
reviewed by at least three qualified persons in addition to the 
official responsible for selection.
    (ii) The reviewers of any particular application may be any mixture 
of federal or non-federal experts, including individuals from within 
the cognizant program office, except those involved in approving/
disapproving the application. The DOE shall select external (non-DOE 
Federal or non-federal) reviewers on the basis of their professional 
qualifications and expertise.
    (c) Review summary. Upon request, applicants are to be provided 
with a written summary of the evaluation of their application.
    (d) Reviewers with interest in application being reviewed. 
Reviewers must comply with the requirements for the avoidance of 
conflict of interest established in Section 600.14.
    (e) 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.


Sec. 600.14  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 and special employees (consultants) 
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.


Sec. 600.15  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 or is already the property of the Government. 
DOE employees may not disclose confidential information under the 
provisions of 18 U.S.C. 1905 including trade secrets, technical data, 
and or privileged or confidential commercial or financial information.
    (b) Treatment of application information. (1) An application may 
include technical data and other data, including trade secrets and/or 
privileged or confidential commercial or financial information, which 
the applicant does not want disclosed to the public or used by the 
Government for any purpose other than application evaluation. To 
protect such data, the applicant should specifically identify each page 
including each line or paragraph thereof containing the data to be 
protected and mark the cover sheet of the application with the 
following Notice as well as referring to the Notice on each page to 
which the Notice applies.

Notice of Restriction on Disclosure and Use of Data

    The data contained in pages ____ of this application 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.
    (3) Data (or abstracts of data) marked with the Notice under 
paragraph (b)(1) of this section shall be retained in confidence and 
used by DOE or its designated representatives as specified in Section 
600.13 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 clause at 48 CFR 52.227-23, 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.


Sec. 600.16  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) DOE funds awarded under a grant or cooperative agreement shall 
be 

[[Page 40332]]
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 Sections 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.
Sec. 600.17  Contents of award.

    Each financial assistance award shall be made on a Notice of 
Financial Assistance Award (DOE F 4600.1) which contains basic 
identifying and funding information together with attachments including 
a budget, any special terms and conditions, and any other provisions 
necessary to establish the respective right, duties, obligation, and 
responsibilities of DOE and the recipient, consistent with the 
requirements of this part.


Sec. 600.18  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. No DOE funds shall 
be disbursed until the award document signed by the recipient is 
received by DOE.
    (b) 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.
    (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.


Sec. 600.19  Notification to unsuccessful applicants.

    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.


Sec. 600.20  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.
    (c) DOE shall not be obligated to make any additional, 
supplemental, continuation, renewal, or other award for the same or any 
other purpose.


Sec. 600.21  Access to records.

    (a) In addition to recipient and subrecipient responsibilities 
relative to access to records specified in Sections 600.153 and 
600.242, for 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 the subrecipient (if 
the contract was awarded under a financial assistance subaward), 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 pertinent to that contract or subcontract, in 
order to make audit, examination, excerpts, and copies.
    (b) The right of access may be exercised for as long as the 
applicable records are retained by the recipient, subrecipient, 
contractor, or subcontractor.


Sec. 600.22  Disputes and appeals.

    (a) Informal dispute resolution. Whenever practicable, DOE shall 
attempt to resolve informally any dispute over the award or 
administration of financial assistance. Informal resolution, including 
resolution through an alternative dispute resolution mechanism, shall 
be preferred over formal procedures available 10 CFR Part 1024, to the 
extent practicable.
    (b) Alternative dispute resolution (ADR). Before issuing a final 
disposition in any dispute in which informal resolution has not been 
achieved, the Contracting Officer shall suggest that the other party 
consider the use of voluntary consensual methods of dispute resolution, 
such as mediation. The DOE dispute resolution specialist is available 
to provide assistance for such disputes, as are trained mediators of 
other federal agencies. ADR may be used at any stage of a dispute.
    (c) Final determination. Whenever a dispute is not resolved 
informally or through an alternative dispute resolution process, DOE 
shall mail (by certified mail) a brief written determination signed by 
a Contracting Officer, setting forth DOE's final disposition of such 
dispute. 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.
    (d) Right of appeal. (1) Except as provided in paragraph (f)(1) of 
this section, the final determination under paragraph (c) 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.
    (2) If the final determination under paragraph (c) of this section 
involves a dispute over which the Board has jurisdiction as provided in 
paragraph (f)(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.
    (3) If the final determination under paragraph (c) of this section 
involves a dispute over which the Board has no jurisdiction as provided 
in paragraph (f)(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.
    (e) 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.
    (f) Review on appeal. (1) The Board shall have no jurisdiction to 
review:
    (i) Any preaward dispute (except as provided in paragraph 
(f)(2)(ii) of this section), including use of any special restrictive 
condition pursuant to Sections 600.114 or 600.212;
    (ii) DOE denial of a request for a deviation under Sections 600.4, 
600.103, or 600.205 of this part;
    (iii) DOE denial of a request for a budget revision or other change 
in the approved project under Sections 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 Sections 600.162(a) (1), (2), 
(3) or (5); or 

[[Page 40333]]
Sections 600.243 (a)(1), (a)(3) for suspensions only; or Sections 
600.162 (a)(4) or Section 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 Section 600.144, or Section 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 (f)(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 (f)(1) 
of this section) of 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;
    (ii) A DOE decision not to make a continuation award based on any 
of the determinations described in paragraph (f)(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 (f)(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.


Sec. 600.23  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.


Sec. 600.24  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 date of the notice) by which they must be taken.
    (3) Which of the actions authorized under Section 600.122(n), 
Section 600.162(a) or Section 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 Section 
600.121(n,), Section 600.162(a), or Section 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.


Sec. 600.25  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 Section 600.24, Section 
600.122(n), Section 600.162(a), or Section 600.243(a);
    (2) an immediate debarment or debarment of the awardee under 
Section 600.23.
    (b) Notification requirements. Except as provided in Section 
600.24, Section 600.162(a), or Section 600.243(a) 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 Section 600.24(a), Section 600.162(a), or 
Section 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 Sections 600.170 through 
600.173 and Sections 600.250 through 600.252);
    (6) A statement of the awardee's right to appeal a termination for 
cause pursuant to Section 600.22; 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 Section 600.24, Sections 
600.160 through 600.162 or Sections 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 paragraph. 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 

[[Page 40334]]
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.
    (f) Subgrants. Awardees shall follow the policies and procedures in 
this section and in Section 600.24, Sections 600.160 through 600.162 or 
Sections 600.243 through 600.244 for suspending and terminating 
subgrants.


Sec. 600.26  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).
    (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. A continuation application shall include--
    (1) A statement of technical progress or status of the project to 
date.
    (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 of unobligated balances. A detailed budget need not be 
submitted if the new or renewal application contained future-year 
budgets sufficiently detailed to allow DOE to review and approve the 
categories and elements of cost. Should the 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 in 
accordance with 600.6(b)(2). Renewal applications must be submitted no 
later than 6 months prior to the scheduled expiration of the project 
period unless a program rule or other published instruction establishes 
a different application deadline.
    (d) Extensions. Unless otherwise specified in the award terms and 
conditions, recipients of financial assistance awards, except 
recipients of SBIR awards (See Section 600.181), 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 recipient must notify the cognizant DOE 
Contracting Officer in the awarding office in writing within ten (10) 
days of making the extension.


Sec. 600.27  Patent and data provisions.

    (a) General. Financial assistance shall be awarded and administered 
by DOE in compliance with the patent and data provisions of this 
section. (See also Sections 600.136 and 600.234.) To the extent not 
otherwise provided in this part, the policies, procedures and clauses 
referenced for contracts in 48 CFR part 927 and 41 CFR part 9-9 shall 
normally be applicable to the award and administration of Departmental 
grants and cooperative agreements. Copies of 41 CFR part 9-9 are 
available by contacting the DOE Patent Counsel.
    (b) Required clauses. In all solicitations and awards both for the 
support of research, development, and demonstration and for other 
efforts, the DOE Contracting Officer shall consult the DOE Patent 
Counsel for applicable patent and data clauses from those listed below 
and/or for modifications thereto. In reading each 48 CFR part 27 and 48 
CFR part 952 patent and data clause selected for inclusion in a 
solicitation or award, the term ``contract'' when referring to a prime 
contract shall be read as ``award.'' The term ``contractor'' shall be 
read as referring to the ``awardee.'' The term ``subcontract'' shall be 
read as ``subaward or a procurement contract under an award or subaward 
and/or a procurement subcontract under an awardee's or subawardee's 
contract.'' The term ``Acquisition'' with respect to the Long Form 
Patent Rights Clause shall be read as ``Retention.'' The terms 
``offerors'' and ``quoters'' shall be read as ``applicants,'' and 
``proposal'' and ``quotation'' shall be read as ``application.''
    (1) Patent clauses.
    (i) (Short Form Patent Clause). Incorporate the clause at 48 CFR 
952.227-11 for awards to a domestic small business firm or nonprofit 
organization as defined at 48 CFR 27.301. In accordance with 35 USC 
202(a)(ii), the DOE may issue an exceptional circumstances 
determination. To implement any exceptional circumstances 
determination, DOE will modify 48 CFR 952.227-11 to retain greater 
rights in subject inventions. Such modifications will be only to the 
extent necessary to implement the exceptional circumstances 
determination.
    (ii) (Long Form Patent Clause). For awards to a large business firm 
or other organization, other than a domestic small business firm or 
nonprofit organization as set forth in 48 CFR 27.301, incorporate the 
clause at 48 CFR 952.227-13.
    (iii) The notice of Right to Request Patent Waiver at 48 CFR 
952.227-84 shall also be inserted in all solicitations to advise 
applicants of their rights to request in advance of, or within 30 days 
after the award is signed, a waiver of all or any part of the rights of 
the United States with respect to subject inventions. For unsolicited 
applications, DOE shall provide this notice to the applicant prior to 
award.
    (2) Data Clauses (includes copyright provisions)
    (i) Rights in Data--General. (A) Incorporate 48 CFR 52.227-14 with 
Alternates I and V. Solicitations shall also include the Representation 
of Limited Rights Data and Restricted Computer Software clause at 48 
CFR 52.227-15.
    (B) In awards for grants and cooperative agreements with 
institutions of higher education, hospitals, and other non-profit 
organizations, the following paragraph (c) will be used in lieu of the 
provisions in 48 CFR 52.227-14(c):

 
[[Page 40335]]

    (c) Copyright. (1) Data first produced in the performance of the 
award. Except as otherwise specifically provided in this award, the 
recipient may establish claim to copyright subsisting in any data 
first produced in the performance of this award. When claim to 
copyright is made, the Recipient shall affix the applicable 
copyright notice of 17 U.S.C. 401 or 402 and acknowledgement of 
Government sponsorship (including award number) to the data when 
such data are delivered to the Government, as well as when the data 
are published or deposited for registration as a published work in 
the U.S. Copyright Office. The recipient grants to the Government a 
royalty-free, nonexclusive and irrevocable right to reproduce, 
publish, or otherwise use the work for Federal purposes, and to 
authorize others to do so. The right to publish includes the right 
to publicly distribute. The right to use the work for Federal 
purposes includes the right to prepare derivative works.

    (C) For grants and cooperative agreements with commercial 
organizations, foreign governments, organizations under the 
jurisdiction of foreign governments, and international organizations, 
the provisions the following paragraph (d)(3) shall be used in addition 
to the provisions in 48 CFR 52.227-14:

    (d)(3) The Recipient agrees not to establish claim to copyright 
in computer software first produced in the performance of this award 
without prior written permission of the Contracting Officer. When 
such permission is granted, the Contracting Officer shall specify 
appropriate terms to assure dissemination of the software. The 
recipient shall promptly deliver to the Contracting Officer or to 
the DOE Patent Counsel designated by the Contracting Officer a duly 
executed and approved instrument fully confirmatory of all rights to 
which the Government is entitled, and other terms pertaining to the 
computer software to which claim to copyright is made.

    (D) If programmatic needs on a particular award require the 
delivery to the Government of limited rights data or restricted 
computer software, Alternates II or III of 48 CFR 52.227-14 shall also 
be added.
    (ii) Restriction on Disclosure and Use of Data. Insert the Notice 
at 600.15(b)(1) in all solicitations.
    (iii) Rights to Application Data. As discussed at 600.15(b)(5), 
incorporate 48 CFR 52.227-23.
    (iv) Additional data requirements. Incorporate 48 CFR 52.227-16. In 
the event all technical data requirements are known in advance of and 
are set forth in the agreement or, the award is for the performance of 
basic or applied research and is to be performed solely by a university 
or college as discussed in 48 CFR 27.406(b), 48 CFR 52.227-16 does not 
need to be incorporated.
    (3) Authorization and consent. Incorporate 48 CFR 52.227-1 or 
Alternates I or II, as appropriate, in accordance with the guidance in 
48 CFR 927.201-1 and 48 CFR 27.201.
    (4) Patent indemnity. Incorporate the clause set forth in 48 CFR 
52.227-3, as appropriate, in accordance with the guidance in 48 CFR 
27.203-1 and 48 CFR 27.203-3.
    (5) Filing of Patent Applications-Classified Subject Matter. 
Incorporate the following paragraph in any solicitation or award which 
covers, or is likely to cover, classified subject matter:

Classified Inventions

    (a) The recipient shall not file or cause to be filed on any 
invention or discovery conceived or first actually reduced to 
practice in the course of or under this award in any country other 
than the United States, an application or registration for a patent 
without first obtaining written approval of the Contracting Officer.
    (b) When filing a patent application in the United States on any 
invention or discovery conceived of or first actually reduced to 
practice in the course of or under this award, the subject matter of 
which is classified for reasons of security, the awardee shall 
observe all applicable security regulations covering the 
transmission of classified subject matter. When transmitting the 
patent application to the United States Patent and Trademark Office, 
the awardee shall, by separate letter, identify by agency and 
agreement number the award(s) which require security classification 
markings to be placed on the application.

    (6) Notice and Assistance Regarding Patent and Copyright 
Infringement. Incorporate the clause at 48 CFR 52.227-2, in accordance 
with the guidance in 48 CFR 27.202, in all awards in excess of $100,000 
for construction, research, development, and demonstration work which 
is to be performed within the United States, its possessions, or Puerto 
Rico.
    (7) Royalty Information. Incorporate 10 CFR 52.227-6.
    (8) Refund of Royalties. As discussed in 48 CFR 927.206, 
incorporate the clause at 48 CFR 952.227-9 in solicitations and awards 
where the Contracting Officer believes royalties will have to be paid 
by the awardees or subawardee or contractor at any tier.
    (9) Subawards and contracts under award. The recipient shall 
include the applicable clauses of this section in any subaward or 
contract awarded under the award and assure that the applicable clauses 
are also included by subrecipients in contracts.


Sec. 600.28  New restrictions on lobbying.

    Procedures regarding restrictions on lobbying activities of 
applicants and recipients are contained in 10 CFR 601.110.


Sec. 600.29  Fixed obligation awards.

    (a) General. This section contains provisions applicable to the 
award of financial assistance instruments on a fixed amount basis. 
Under a fixed obligation award, funds are issued in support of a 
project without a requirement for Federal monitoring or actual costs 
subsequently incurred.
    (b) Provisions applicable to fixed obligation awards. Financial 
assistance awards may be made on a fixed obligation basis subject to 
the following requirements:
    (1) Each fixed obligation award may not exceed $100,000 or exceed 
one year in length.
    (2) Programs which require mandatory cost sharing are not eligible.
    (3) Proposed costs must be analyzed in detail to ensure consistency 
with applicable cost principles;
    (4) Although budgets are submitted by an applicant and reviewed for 
purposes of establishing the amount to be awarded, budget categories 
are not stipulated in making an award;
    (5) Payments will be made in the same manner as other financial 
assistance awards, except that when determined appropriated by the 
cognizant program official and contracting officer a lump sum payment 
may be made;
    (6) Recipients must certify in writing to the contracting officer 
at the end of the project that the activity was completed or the level 
of effort was expended, however should the activity or effort not be 
carried out, the recipient would be expected to make appropriate 
reimbursements;
    (7) Requirements for periodic reports may be established for each 
award so long as they are not more frequently than quarterly;
    (8) Changes in principal investigator or project leader, scope of 
effort, or institution, require the prior approval of the Department.


Sec. 600.30  Cost sharing.

    In addition to the requirements of Section 600.123 or Section 
600.224, the following requirements apply to research, development, and 
demonstration projects:
    (a) When DOE awards financial assistance for research, development, 
and demonstration projects where the primary purpose of the project is 
the ultimate commercialization and utilization of technology by the 
private sector and when there are reasonable expectations that the 
participant will receive significant present or future economic 
benefits beyond the instant award as a result of the performance of the 
project, cost sharing shall be 

[[Page 40336]]
required unless waived by the cognizant Program Assistant Secretary or 
designee.
    (b) Except as provided in statute such as the Energy Policy Act, 42 
U.S.C. 13525, DOE will decide, on a case-by-case basis, the amount of 
cost sharing required for a particular project.
    (c) Factors in addition to those specified in Section 600.123 or 
Section 600.224, which may be considered when negotiating cost sharing 
for research, development, and demonstration projects include the 
potential benefits to a participant resulting from the project and the 
length of time before a project is likely to be commercially 
successful.

[FR Doc. 95-19149 Filed 8-7-95; 8:45 am]
BILLING CODE 6450-01-P