[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7164-7175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4144]




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Part III





Department of Energy





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10 CFR Part 600



Financial Assistance Rules; Regulatory Reduction; Final Rule

  Federal Register / Vol. 61, No. 38 / Monday, February 26, 1996 / 
Rules and Regulations   

[[Page 7164]]


DEPARTMENT OF ENERGY

10 CFR Part 600

RIN 1991-AB23


Financial Assistance Rules; Regulatory Reduction

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) today issues a final rule 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 and to retain only 
that coverage that is considered suitable for a regulation.

EFFECTIVE DATE: This final rule will be effective March 27, 1996.

FOR FURTHER INFORMATION CONTACT: Cherlyn D. Seckinger, Office of Policy 
(HR-51) Office of Procurement and Assistance Management, Department of 
Energy, 1000 Independence Avenue SE., Washington, D.C. 20585 (202) 586-
8246.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Changes to the Proposed Rule
III. Review Under Executive Order 12612
IV. Regulatory Review
V. Review Under the Regulatory Flexibility Act
VI. Review Under the Paperwork Reduction Act
VII. Review Under the National Environmental Policy Act
VIII. Review Under Executive Order 12778

I. Background

    In the August 8, 1995 issue of the Federal Register (60 FR 40323), 
DOE published a proposed rule to amend its financial assistance rules 
by revising Subpart A to simplify and streamline the financial 
assistance process in keeping with Departmental and Government-wide 
initiatives to improve the way the Department does business. The 
changes that are published today with minor modifications primarily 
affect DOE internal procedures contained in Subpart A pertaining to the 
solicitation, evaluation, and award processes, and have little or no 
impact on requirements applicable to applicants and recipients of DOE 
financial assistance. In most instances, the amended rule omits 
detailed internal procedures for DOE officials, and instead establishes 
standards or basic requirements that are of primary interest to members 
of the public. Also, the patent, data and copyright provisions in 
Subparts A and B have been updated to reflect the recent changes in the 
Department of Energy Acquisition Regulations and to clarify how the 
Intangible Property provisions in Section 600.136 of Subpart B apply to 
commercial organizations.
    This rulemaking is part of DOE's ongoing efforts to streamline its 
regulatory systems and re-engineer its business processes. In June 
1995, the Secretary of Energy Advisory Board's Task Force on Strategic 
Energy Research and Development issued a report on the Department's 
energy research and development programs. Consistent with the 
recommendations provided in this report, the Department currently is 
examining the activities, processes, and burdens associated with 
awarding and administering all nonlaboratory research and development 
contracts and financial assistance awards. As recommendations for 
conducting these activities more efficiently and effectively are 
developed, it is possible the Department will propose further revisions 
to its Financial Assistance Rules.

II. Discussion of Changes to the Proposed Rule

    No public comments were received in response to the Notice of 
Proposed Rulemaking. However, DOE has made non-substantive 
modifications to the proposed rule. Those modifications deserving 
explanation are described below. The rule has also been amended to make 
some minor technical changes to correct and update citations and cross-
references.
    First, the definition of ``project'' will be retained in Section 
600.3, Definitions. The reason for retaining it is that the term 
``project'' is a basic financial assistance term of art.
    Second, it appears that the unsolicited proposal criteria contained 
in the existing rule at 600.14(e) were not included in the new Section 
600.6, Eligibility, contrary to what was stated in the preamble of the 
proposed rule. While not specifically identified as unsolicited 
proposal criteria, one of the criteria for justifying noncompetitive 
financial assistance under Section 600.6(c)(7) provides the basis for 
acceptance of an unsolicited proposal. The criterion states that a 
proposed project must be a unique or innovative idea, method, or 
approach which would not be eligible for financial assistance under a 
recent, current, or planned solicitation, and must be inappropriate for 
a competitive solicitation. For purposes of clarification, we have 
added the term ``unsolicited proposals'' in Section 600.6(c)(7) in this 
criterion.
    Third, the address for obtaining the guide on preparation and 
submission of unsolicited applications has been included in the rule 
under Section 600.10, Form and content of applications. Since DOE is 
moving toward the electronic submission of applications, the 
requirement in section 600.10(d) for a ``signed application'' has been 
revised. The first complete sentence in Section 600.10(d) now reads 
``DOE may return an application which is not signed, either in writing 
or electronically, by an official authorized to bind the applicant.'' 
Section 600.16, Legal authority and effect of an award, has been 
revised similarly in order to permit the use of an electronic process. 
The requirement to send a written review summary to an applicant, upon 
request, in Section 600.13(c), Merit review, has been deleted because 
it duplicates the requirement in Section 600.19, Notification to 
unsuccessful applicants. Section 600.19 requires DOE to provide an 
applicant who is not selected for award a written notice which briefly 
explains why the application was not selected and offers the applicant 
the opportunity for a more detailed explanation upon request. Because 
the requirement in Section 600.19 systematically provides information 
to an unsuccessful applicant, we have retained that coverage, but 
deleted the notification requirement under merit review. Section 
600.29(b)(1) has been rewritten to clarify that each fixed obligation 
award may neither exceed $100,000 nor exceed one year in length. As 
proposed, it could be interpreted to be either/or.
    The existing DOE financial assistance rules applied cost sharing 
requirements only to cooperative agreements based on the Federal 
Nonnuclear Energy Research and Development Act. Since then the Energy 
Policy Act of 1992 was enacted which also requires cost sharing for 
research, development and demonstration projects carried out under this 
Act. The proposed rule extended cost sharing requirements to grants as 
a way of leveraging Federal funds in times of declining budgets. While 
today's final rule retains this cost sharing policy, it allows for 
exceptions to meet specific programmatic needs or requirements on a 
single-case or class basis with the approval of the cognizant program 
Assistant Secretary or designee.

III. 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 

[[Page 7165]]
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 rule revises 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.

IV. 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.

V. Review Under the Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act of 
1980, Public Law 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 rule only affects 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 rule would not have a significant economic impact 
on a substantial number of small entities and, therefore, no regulatory 
flexibility analysis has been prepared.

VI. 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 U.S.C. 3501, et 
seq., or OMB implementing regulations at 5 CFR Part 1320.

VII. 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.

VIII. 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.

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.
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 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.

Subpart D--[Removed and Reserved]

    2. The existing Subpart D Cooperative Agreements (Secs. 600.300 
through 600.307) is removed and reserved.

    Part 600 is further amended as set forth below:


Sec. 600.112  [Amended]

    3. Section 600.112(c) is amended by revising the parenthetical 
phrase ``(see Sec. 600.31 (b) and (c))'' to read ``(see Sec. 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 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 Sec. 600.134(g).
    (b) Recipients that are commercial entities shall follow the 
provisions set forth at 10 CFR 600.27.


Sec. 600.204  [Amended]

    5. In Sec. 600.204 revise ``Sec. 600.405'' to read 
``Sec. 600.205''.


Sec. 600.221  [Amended]

    6. In Sec. 600.221(g)(2) revise ``Sec. 600.443(c)'' to read 
``Sec. 600.243(c)''.


Sec. 600.224  [Amended]

    7. In Sec. 600.224(b)(4) revise ``Sec. 600.425(g) to read 
``Sec. 600.225(g)''.
    8. In Sec. 600.224(e)(2)(ii) revise ``Sec. 600.422'' to read 
``Sec. 600.222''.


Sec. 600.225  [Amended]

    9. In paragraph (e) of Sec. 600.225, revise ``Sec. 600.434'' to 
read ``Sec. 600.234''. 

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    10. In paragraph (f) of Sec. 600.225, revise ``Secs. 600.431 and 
600.432'' to read ``Secs. 600.231 and 600.232''.


Sec. 600.226  [Amended]

    11. In paragraph (c) of Sec. 600.226 revise ``Sec. 600.436'' to 
read ``Sec. 600.236''.


Sec. 600.230  [Amended]

    12. In paragraph (b) of Sec. 600.230 revise the parenthetical 
expression ``(see Sec. 600.422)'' to read ``(see Sec. 600.222)''.
    13. In Sec. 600.230(d)(4) revise ``Sec. 600.436'' to read 
``Sec. 600.236''.
    14. In Sec. 600.230(f)(2) revise ``Sec. 600.422'' to read 
``Sec. 600.222''.


Sec. 600.232  [Amended]

    15. In Sec. 600.232(c)(3) revise ``Sec. 600.425(a)'' to read 
``Sec. 600.225(a)''.
    16. In Sec. 600.232((g)(2) revise ``Sec. 600.432(e)'' to read 
``Sec. 600.232(e)''.


Sec. 600.236  [Amended]

    17. In paragraph (c) introductory text of Sec. 600.236, revise 
``Sec. 600.436'' to read ``Sec. 600.236''.
    18. In Sec. 600.236(d)(2) revise ``Sec. 600.436(d)(2)(i)'' to read 
``Sec. 600.236(d)(2)(i)''.


Sec. 600.237  [Amended]

    19. In Sec. 600.237(a)(3) revise ``Sec. 600.442'' to read 
``Sec. 600.242''.
    20. In Sec. 600.237(c) revise ``Sec. 600.410'', ``Sec. 600.411'', 
``Sec. 600.421'', and ``Sec. 600.450'' to read ``Sec. 600.210'', 
``Sec. 600.211'', ``Sec. 600.221'', and ``Sec. 600.250'' respectively.


Sec. 600.241  [Amended]

    21. In paragraph (b) of Sec. 600.241 revise 
``Sec. 600.441(e)(2)(iii)'' to read ``Sec. 600.241(e)(2)(iii)''.
    22. In Sec. 600.241(e)(1)(i) revise ``Sec. 600.441(d)'' to read 
``Sec. 600.241(d)''.
    23. In Sec. 600.241(e)(1)(ii) revise ``Sec. 600.441(b)(3)'' to read 
``Sec. 600.241(b)(3)''.
    24. In Sec. 600.241(e)(2)(ii) revise ``Sec. 600.41(d)'' to read 
``Sec. 600.241(d)''.
    25. In Sec. 600.241(e)(2)(iii) revise ``Sec. 600.441(b)'' to read 
``Sec. 600.241(b)''.
    26. In Sec. 600.241(e)(3) revise ``Sec. 600.441(b)(2)'' to read 
``Sec. 600.241(b)(2)''.


Sec. 600.243  [Amended]

    27. In paragraph (d) of Sec. 600.243, revise the parenthetical 
expression ``(see Sec. 600.435)'' to read ``(see Sec. 600.235)''.


Sec. 600.244  [Amended]

    28. In paragraph (b) of Sec. 600.244, revise ``Sec. 600.443'' to 
read ``Sec. 600.243''.


Sec. 600.250  [Amended]

    29. In Sec. 600.250(b)(5) revise ``Sec. 600.432(f)'' to read 
``Sec. 600.232(f)''.


Sec. 600.251  [Amended]

    30. In Sec. 600.251 (c) revise ``Sec. 600.442'' to 
``Sec. 600.242''.
    31. In paragraph (d) of Sec. 600.251 revise ``Secs. 600.431 and 
600.432'' to read ``Secs. 600.231 and 600.232''.
    32. In paragraph (e) of Sec. 600.251 revise ``Sec. 600.426'' to 
read ``Sec. 600.226''.


Sec. 600.402  [Amended]

    33. Sec. 600.402 is amended in paragraph (d) by revising 
``Secs. 600.25, 600.153, 600.242, and 600.305'' to read ``Secs. 600.21, 
600.153, and 600.242''.


Sec. 600.403  [Amended]

    34. In paragraph (c), of Sec. 600.403 revise ``Secs. 600.126, 
600.226, and 600.305'' to read ``Secs. 600.126 and 600.226''.


Sec. 600.405  [Amended]

    35. In Sec. 600.405(b)(2)(ii)(C), revise ``Sec. 600.424 of subpart 
E'' to read ``Sec. 600.224 of subpart C''.


Sec. 600.415  [Amended]

    36. Section 600.415 is amended, in the first sentence, by revising 
``Sec. 600.436 of subpart E'' to read ``Sec. 600.236 of subpart C''.
    Part 600 is further amended as set forth below:
    37. 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  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 Pub. L. 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, to the 
extent appropriate, by this part and by the administrative requirements 
and cost principles applicable to their respective recipient type, e.g, 
governmental, non-profit, commercial.


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.
    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. 


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    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.
    Financial Assistance means the transfer of money or property to a 
recipient or subrecipient to accomplish a public purpose of support or 
stimulation authorized by Federal statute. For purposes of this part, 
financial assistance instruments are grants and cooperative agreements 
and subawards.
    Head of Contracting Activity or HCA means a DOE official with 
senior management authority for the award and administration of 
financial assistance instruments within one or more DOE organizational 
elements.
    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 means the set of activities described in an application, 
State plan, or other document that is approved by DOE for financial 
assistance (whether such financial assistance represents all or only a 
portion of the support necessary to carry out those activities.)
    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, 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 Secs. 600.114 and 
600.212, are not deviations. Awards to foreign entities and the waiver 
of the cost sharing requirements in Sec. 600.30 or the patent 
requirements of Sec. 600.27 are not subject to 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 
HCA. Any proposed single-case deviation from the requirements of 
Sec. 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 designee. Any 
proposed class deviation from the requirements of Sec. 600.27 
concerning patents or data shall be forwarded through the Assistant 
General Counsel for Technology Transfer and Intellectual Property or 
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.
    (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 financial 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. In selecting the type of financial 
assistance instrument, DOE 

[[Page 7168]]
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. Every cooperative agreement shall 
explicitly state the substantial involvement anticipated between DOE 
and the recipient during the performance of the project. 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.
    (c) Providing technical assistance or guidance of a programmatic 
nature to a recipient does not constitute substantial involvement if:
    (1) the recipient is not required to follow such guidance;
    (2) the technical assistance or guidance is not expected to result 
in continuing DOE involvement in the performance of the project; or
    (3) The technical assistance or guidance pertains solely to the 
administrative requirements of the award.
    (d) In cooperative agreements, 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 Secs. 600.162 and 600.243 does not 
constitute intervention in the conduct or performance of project 
activities.


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. Except when authorized by statute or program rule, if 
the aggregate amount of DOE funds available for award under 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. Where 
the amount of DOE funds is less than $1,000,000, the cognizant HCA and 
the Contracting Officer may approve the determination.
    (c) Noncompetitive financial assistance. DOE may award a grant or 
cooperative agreement on a noncompetitive basis only if the 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 was submitted as an unsolicited proposal 
and 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) 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 
for a particular award or class of awards of $1,000,000 or less may be 
waived by local legal counsel.
    (e) Documentation requirements. A determination of noncompetitive 
financial assistance (normally prepared by the responsible program 
official) explaining the basis for the proposed noncompetitive award 
shall be placed in the award file.


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 (FASA), and implementing 
regulations under FASA issued by the Office of Federal Procurement 
Policy.
    (c) When entering into contracts under financial assistance awards, 
recipients and subrecipients shall comply with the requirements of 
Section 600.144 or Section 600.236, as applicable.


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 

[[Page 7169]]
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 provide 
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. 
At a minimum, each solicitation must include:
    (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) The 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) An application form or the 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 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 requirement 
concerning cost sharing shall be clearly stated (See also Sec. 600.30, 
Cost Sharing). Cost sharing is generally encouraged. However, unless 
cost sharing is required by 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. 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 Secs. 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:
    (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; 
and
    (4) The location for application submission. 
    
[[Page 7170]]



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 in a program rule, in the 
solicitation, or in these regulations. (See also Secs. 600.112 and 
600.210.) For unsolicited applications, a guide for preparation and 
submission is available from Field/Headquarters Support Division, 
Office of Procurement and Assistance Management, Department of Energy, 
1000 Independence Avenue SW., Washington, DC 20585.
    (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 or other approved DOE 
application form;
    (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; and
    (4) Any required preaward assurances.
    (d) Incomplete applications. DOE may return an application that:
    (1) Is not signed, either in writing or electronically, by an 
official authorized to bind the applicant; or
    (2) Omits any information or documentation required by statute, 
program rule, or 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) 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 they are 
subject. 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) 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. 
These codes provide a level of seismic safety that is substantially 
equivalent to 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. 
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.


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 
project/program official with responsibility for deciding whether an 
award will be made. It is expected that the cognizant project/program 
officer(s) who will select or be in the direct chain of supervision 
recommending selection or rejection of applications will not be a part 
of the objective review group. The objective merit review system must 
set forth the relationship between the reviewing individuals, or the 
review committees or groups, program/project management involved with 
directly advising the selection official with respect to program/
project policy considerations and the selection 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 selection official in 
accepting or rejecting objective merit review recommendations.
    (b) Each formal review system must contain the following elements:
    (1) Basic review standards. Applications should undergo an initial 
review for conformance with technical and administrative requirements 
stated in the notice or solicitation and for funding availability. For 
applications which pass the initial review, the DOE evaluation shall be 
in accordance with stated evaluation criteria set forth in the 
applicable program rule or notice, solicitation, or, where appropriate, 
the unsolicited proposal criteria in Sec. 600.6(c)(7).
    (2) Applications which have successfully completed an initial 
review are normally subjected to an objective merit review by a group 
comprised of three or more professionally and technically qualified 
persons. This advisory review is limited to technical and/or cost 
matters and should be separate from any programmatic review of program/
policy factors involved in making a selection/rejection decision.
    (3) 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) Reviewers with interest in application being reviewed. 
Reviewers must comply with the requirements for the avoidance of 
conflict of interest established in Sec. 600.14.
    (d) Outside reviewers. An outside reviewer shall be required to 
sign, either in writing or electronically, 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. 

[[Page 7171]]



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. 
The Trade Secrets Act, 18 U.S.C. 1905, prohibits the unauthorized 
disclosure by Federal employees of trade secret and confidential 
business 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 
Sec. 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, either in writing or electronically, by a DOE 
Contracting Officer.
    (b) DOE funds awarded under a grant or cooperative agreement shall 
be obligated as of the date the DOE Contracting Officer signs the 
award; however, the recipient is not authorized to incur costs under an 
award prior to the beginning date of the budget period shown in the 
award except as may be authorized in accordance with Secs. 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 recipient. The recipient shall acknowledge acceptance by 
returning a copy signed either in writing or electronically. No DOE 
funds shall be disbursed until the award document signed by the 
recipient is received by DOE.
    (b) In the event a recipient declines 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.

    (a) The maximum DOE obligation to the recipient is--
    (1) For monetary awards, the amount shown in the award as the 
amount of DOE funds obligated, and
    (2) Any designated property.
    (b) 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 Secs. 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 

[[Page 7172]]
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 in 10 CFR Part 1024, to 
the extent practicable.
    (b) Alternative dispute resolution (ADR). Before issuing a final 
determination 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, if appropriate, 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 Secs. 600.114 or 600.212;
    (ii) DOE denial of a request for a deviation under Secs. 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 Secs. 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 Secs. 600.162(a) (1), (2), (3) 
or (5); or Secs. 600.243 (a)(1), (a)(3) for suspensions only; or 
Sec. 600.162(a)(4) or Sec. 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 Sec. 600.144, or Sec. 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); and
    (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 with nondiscrimination requirements 
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 Secs. 600.122(n), 
600.162(a) or Sec. 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 Sec. 600.121(n,), 
Sec. 600.162(a), 

[[Page 7173]]
or Sec. 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 Secs. 600.24, 600.122(n), 
600.162(a), or Sec. 600.243(a); or
    (2) an suspension or debarment of the awardee under Sec. 600.23.
    (b) Notification requirements. Except as provided in Sec. 600.24, 
600.162(a), or Sec. 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 Secs. 600.24(a), 600.162(a), or Sec. 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 Secs. 600.170 through 
600.173 and Secs. 600.250 through 600.252);
    (6) A statement of the awardee's right to appeal a termination for 
cause pursuant to Sec. 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 Secs. 600.24, 600.160 through 
600.162 or Secs. 600.243 through 600.244 is appropriate, either DOE or 
the awardee may initiate a termination of an 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 termination, a 
description of the activities to be terminated, and an appropriate 
budget revision. DOE shall terminate an 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 an 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 Secs. 600.24, 600.160 through 600.162 or 
Secs. 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. Multiyear awards, including formula awards, shall 
generally 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.
    (4) 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 Sec. 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 Sec. 600.181), may extend the expiration 
date of the final budget period of the project (thereby extending the 
project period) if 

[[Page 7174]]
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 Secs. 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 U.S.C. 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):

    (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 of 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 Sec. 600.15(b)(1) in all solicitations.
    (iii) Rights to Application Data. As discussed at 
Sec. 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 paragraphs 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 

[[Page 7175]]
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 48 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   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 of 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 neither exceed $100,000 nor 
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) Budget categories are not stipulated in making an award. 
However, budgets are submitted by an applicant and reviewed for 
purposes of establishing the amount to be awarded.
    (5) Payments must be made in the same manner as other financial 
assistance awards, except that when determined appropriate 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) 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, must receive the prior approval of the 
Department.


Sec. 600.30   Cost sharing.

    In addition to the requirements of Sec. 600.123 or Sec. 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 
recipient 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 required. Unless the cost sharing is required by 
statute, a waiver of the requirement on a single-case or class basis 
may be approved by the cognizant Program Assistant Secretary or 
designee.
    (b) Except as provided in section 3002 of the Energy Policy Act of 
1992, 42 U.S.C. 13542, or program rule, 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 Sec. 600.123 or 
Sec. 600.224, which may be considered when negotiating cost sharing for 
research, development, and demonstration projects include the potential 
benefits to a recipient resulting from the project and the length of 
time before a project is likely to be commercially successful.

[FR Doc. 96-4144 Filed 2-23-96; 8:45 am]
BILLING CODE 6450-01-P