Attachment 2 - Sample Subcontract.pdf

SAMPLE SUBCONTRACT

INTRODUCTION & AGREEMENT

THIS SUBCONTRACT is effective upon execution by the Alliance for Sustainable Energy, LLC, manager and operator of the National Renewable Energy Laboratory and is between the Alliance for Sustainable

Energy, LLC, whose principal office is located in Golden, Colorado and ___**__ (hereinafter called

”Subcontractor”).

The Alliance for Sustainable Energy, LLC (referred to as “Alliance”) has entered into Contract No. DE-AC36-

08GO28308 (the “Prime Contract”) with the Department of Energy (hereinafter called “DOE”), an agency of the U.S. Government (“Government”), for the management and operation of the National Renewable Energy

Laboratory (“NREL”). In this subcontract, all references to “NREL” shall refer to the Alliance for Sustainable

Energy, LLC.

This subcontract is established to support the execution of the work outlined in the Prime Contract.

NOW, THEREFORE, the parties hereto agree to the following terms and conditions:

WORK TO BE PERFORMED

1. The Subcontractor shall perform the work specified in Appendix A, Statement of Work, pursuant to the provisions of this subcontract.

2. Specific deliverables, quantities, due dates, reporting requirements, and addresses are set forth in

Appendix A.

PERIOD OF PERFORMANCE

The period of performance for this subcontract will begin on the date of execution and may be extended through mutual written agreement of the parties.

PRICE AND PAYMENT

1. Upon NREL’s execution of this subcontract, the Subcontractor is authorized to carry out the portion of the deliverables outlined in Appendix A, Statement of Work, for which funding has been allotted and is available for payment, as outlined in Paragraph 3 of this subcontract.

2. NREL will issue payments upon receiving and accepting the deliverables, provided that funds have been allocated and are available. Payments will be made in the amounts specified below.

Occurrence Amount

1 Front End Loading (FEL) II Review &

Documentation

2 High-level Process Hazard Analysis (PHA) Report $*.**

3 Front End Loading (FEL) III Review &

Documentation

4 Detailed PHA Report $*.**

5 Long Lead – Equipment Ordered (provide confirmation documentation to NREL)

6 Short Lead – Equipment Ordered (provide confirmation documentation to NREL)

7 Factory Acceptance Test $*.**

8 Documentation for Equipment $*.**

9 Delivery of Equipment $*.**

10 Commissioning of Equipment $*.**

Total Price: $*.**

Payments will be made after NREL receives and accepts the specified deliverables, and the

Subcontractor submits an invoice in a format approved by the Subcontract Administrator in accordance with the “Invoices” article. However, these payments will not affect any legal or other contractual rights of NREL by law or under this subcontract.

3. In accordance with the “Limitation of Price and Subcontractor Obligations” Article of this Schedule, the amount of $___**.**__ is allocated for the occurrences specified in Paragraph 2 above. This allotted amount will cover the specified occurrences [Reference Occurrences] outlined in Appendix A, Statement of

Work, with all deliverables to be completed by [DATE].

LIMITATION OF PRICE AND SUBCONTRACTOR OBLIGATIONS

1. Funds available for performance are established in the “Price and Payment” Article. The funds allocated at the time of award are only sufficient to cover any deliverable specified in that Article and are not intended to cover other tasks under Appendix A, Statement of Work. When additional funds become available, NREL will notify the Subcontractor in writing and adjust the funding amount in Paragraph 2 of the “Price and

Payment” Article to reflect the updated allocation for subcontract performance.

2. NREL is not responsible for paying the Subcontractor any amount beyond what is specified in Paragraph

2 of the “Price and Payment” Article for work performed under this subcontract.

3. The Subcontractor is not required to incur costs or spend money on work related to deliverables that are not covered by the currently available funds. Subcontractor should only proceed if Subcontractor receives written notice from the Subcontract Administrator confirming an increase in available funds. If additional funds become available, the Subcontractor’s obligation will extend only to those deliverables covered by such funds.

4. If NREL terminates this subcontract under the “Termination for Convenience of NREL/Government” clause, the term “total subcontract price” refers to the funds allocated for this subcontract, as outlined in

Paragraph 1 above, plus any agreed-upon cancellation ceiling. “Work under the subcontract” refers only to work on deliverables for which funds have been provided. If the subcontract is terminated for default, NREL’s rights under this subcontract will apply to the full scope of the requirements.

5. Any notice to the Subcontractor about an increase or decrease in available funds due to a different article or clause (e.g., an “Option” or “Changes” clause) does not constitute the notification described in Paragraph

1 of this article.

APPLICABLE DOCUMENTATION

In addition to the terms and conditions contained in this Schedule, the following documents are attached hereto and made a part of this subcontract.

1. Appendix A, entitled “Statement of Work”, dated 7/15/24

2. Appendix B-2, entitled “Standard Terms and Conditions”, dated 01/23/2023

3. Appendix C-1, entitled “Intellectual Property Provisions”, dated 08/01/2022

4. Appendix D, entitled “Standard Terms and Conditions for Subcontracts in Excess of $700,000.00”, dated

3/1/2020.

5. Appendix F, entitled “Small Business Lower-Tier Subcontract Plan”, dated ** (IF APPLICABLE)

6. Subcontractor’s technical proposal number (None) dated [DATE] together with any revisions is hereby incorporated by reference. In the event there is a conflict between the Subcontractor’s technical proposal and any other provisions of this subcontract, the latter shall prevail.

ORDER OF PRECEDENCE

Any inconsistency in this subcontract shall be resolved by giving precedence in the following order:

1. This Schedule;

2. Statement of Work (Appendix A);

3. Standard Terms and Conditions (Appendix B-2);

4. Intellectual Property Provisions (Appendix C-1);

5. Standard Terms and Conditions (Appendix D);

6. Standard Terms and Conditions (Appendix F); (IF APPLICABLE)

7. Other provisions of this subcontract whether incorporated by reference or otherwise; and

8. The Subcontractor’s technical proposal, if incorporated in this subcontract by reference of otherwise.

RIGHTS TO PROPOSAL DATA

Except for technical data contained on pages VALUE of the Subcontractor’s proposal dated DATE which are asserted by the Subcontractor as being proprietary data, it is agreed that, as a condition of the award of this subcontract, and notwithstanding the provisions of any notice appearing on the proposal, the Government and NREL shall have the right to use, duplicate, disclose and have other do so for any purpose whatsoever, the technical data contained in the proposal upon which this subcontract is based.

SUBCONTRACT ADMINISTRATION RESPONSIBILITIES

1. Signature Authority: This subcontract may only be modified by a formal modification signed by an authorized official of NREL.

2. Subcontract Administration Responsibilities: The authorized NREL official designated as the

Subcontract Administrator for this subcontract has the responsibilities for subcontract administration and negotiation of any modifications to this subcontract.

3. Technical Monitoring Responsibilities: The authorized NREL official designated as the Technical Monitor for this subcontract has the responsibilities of monitoring the technical work or services to be performed under this subcontract. The Technical Monitor does not have the authority to make any commitments or authorize any changes which may affect the subcontract's price, scope of work, terms, or conditions.

Any such changes shall be referred to the designated Subcontract Administrator.

KEY PERSONNEL

1. It having been determined that the individuals, whose names appear below, are necessary for the successful performance of this subcontract, the Subcontractor agrees to assign or have assigned such individuals to the performance of the work under this subcontract and shall not reassign or remove any of them without the consent of the Subcontract Administrator by modification to this subcontract:

Name Project Title Email Address

NAME PROJECT TITLE

2. Whenever, for any reason, one or more of the key personnel designated above, is unavailable for assignment for work under this subcontract, the Subcontractor shall, with the approval of the

Subcontract Administrator, replace such individual with an individual of substantially equal abilities and qualifications.

EXPORT CONTROL

The parties understand that materials and information resulting from the performance of this Subcontract may be subject to export control laws and that each party is responsible for its own compliance with such laws.

INVOICES

1. Invoices for work accomplished under this subcontract shall be submitted electronically (Microsoft Word or PDF format) to the following email address: Accounts.Payable@nrel.gov

2. To expedite the payment process please submit one invoice per email and include in the subject line of the email the following:

• Accounting Specialist-Subcontracts Name

• Agreement Number

• Subcontractor Name

• Invoice attached

Example: Subject: Accounting Specialist-Subcontracts Name - Subcontract # - Subcontractor Name - Invoice attached

3. To facilitate processing and payment each invoice shall reference the following items:

• Accounting Specialist-Subcontracts Name

• Agreement Number

• Subcontractor remittance name and address

• Deliverable title/Occurrence number

• Invoice number and date

• Certification and signature

• Any other information or documentation required by other provisions of this subcontract

4. Payments under this subcontract shall be made in accordance with the payment terms and to the

Subcontractor's remittance name and address shown on the cover sheet of this subcontract. Final payment under this subcontract shall be made upon receipt of any required patent clearance from DOE.

5. The payment terms of this subcontract shall mean net days from the date of receipt of an acceptable invoice or the date of receipt and acceptance of all deliverables, reporting requirements or closeout documentation covered by the invoice, whichever is later.

6. The Subcontractor shall submit its invoices in reasonable detail in accordance with the payment schedule contained in the Article entitled “Price and Payment” showing the total fixed price invoiced both currently and cumulatively. An authorized representative of the Subcontractor shall sign the following certification on each invoice submitted for payment:

”I certify that this invoice is correct and proper for payment and reimbursement for this amount has not and will not be received under any other Government contract or subcontract or other source of Government funds.

_Authorized Official_______________________Date”

7. The Subcontractor is hereby notified that NREL may withhold payment on invoices submitted, if the

Subcontractor has failed to comply with or is delinquent in the submission of the reporting or deliverable requirements under this subcontract associated with the fixed price payment, until such time as the Subcontractor has complied or submitted such reporting or deliverable requirement.

PUBLICITY RELEASE, PUBLIC AFFAIRS AND DATA RIGHTS

1. Publicity release of any nature in connection with this subcontract shall be coordinated as provided in the “Public Affairs” clause of Appendix B. The Subcontractor shall not make without prior review and approval of the NREL Subcontract Administrator, any publicity release of any nature of general, non-technical information in connection with this subcontract. For purposes of this subcontract, general, non-technical information means any information concerning the existence of the subcontract, the identity of the parties, and the scope and general character of the research or technical activity. As used in this Article, “publicity release” does not include a lawful inspection of the Subcontractor’s records conducted pursuant to Federal or State public records access statutes. The Subcontractor may report specifics regarding the formation and execution of this subcontract in its internal publications without prior review and approval of the NREL Subcontract Administrator.

2. Data rights are set forth in Appendix C hereof. The Subcontractor should particularly note that all papers and documents that are required for submittal and distribution for patent clearance under this subcontract should first be submitted to the Department of Energy, Intellectual Property Law Division, Chicago Operations Office, 9800 South Cass Avenue, Argonne, Illinois 60439 prior to distribution to the public. This requirement of patent clearance prior to publication of all Subcontractor’s reports is specifically required and set forth in Appendix C hereof.

LOWER-TIER SUBCONTRACTING PLAN (IF APPLICABLE)

The Subcontractor’s Small Business Lower-Tier Subcontracting Plan is incorporated as Appendix F in this subcontract. The Subcontractor shall electronically submit the “Individual Subcontract Report” (ISR) semi-annually during subcontract performance for the periods ended March 31st and September 30th, based on the Government’s fiscal year (October 1 through September 30). The ISR is due on or before the thirtieth

(30th) day of the month following the close of the applicable period. The ISR submission shall be made electronically through the Electronic Subcontracting Reporting System (eSRS) at www.esrs.gov. Additional instructions can be found at https://www.nrel.gov/workingwithus/assets/pdfs/appendix_f_instructions.pdf, under the document entitled “Instructions for Submitting Small Business Subcontracting Reports through the

Electronic Subcontracting Reporting System (eSRS)”.

COMPLIANCE WITH DOE O 486.1A, DEPARTMENT OF ENERGY FOREIGN GOVERNMENT

SPONSORED OR AFFILIATED ACTIVITIES (MAR 2021)

(Applies when Subcontractor performs Research and Development or Demonstration work performed on or at an NREL/Government facility, including an NREL/Government leased facility)

DOE Order 486.1A, Foreign Government Sponsored or Affiliated Activities, prohibits

SUBCONTRACTOR personnel and applicable lower-tier subcontractor personnel performing work under this subcontract from participation in any Foreign Government-Sponsored Talent

Recruitment Program of a Foreign Country of Risk.

With respect to the work being performed under this subcontract, SUBCONTRACTOR must file reports with the DOE, through the NREL Subcontract Administrator contact, upon execution or modification, of this subcontract and on a quarterly basis, disclosing whether any

SUBCONTRACTOR personnel or applicable lower-tier subcontractor personnel who are working under this subcontract, are participating in any Foreign Government-Sponsored Talent Recruitment

Program (FGTRP). If SUBCONTRACTOR personnel or applicable lower-tier subcontractor personnel performing work under this subcontract are participating in a Foreign Government Talent

Recruitment Program, SUBCONTRACTOR shall provide the following information for each disclosed or otherwise identified activity:

https://www.nrel.gov/workingwithus/assets/pdfs/appendix_f_instructions.pdf

a. laboratory;

b. country;

c. description of activity;

d. name of Foreign Government-Sponsored Talent Recruitment Program;

e. funding or other value received or expected;

f. duration;

g. technical area;

h. subcontractor action;

i. status or disposition; and

j. any other information requested by DOE.

Any SUBCONTRACTOR personnel or applicable lower-tier subcontractor personnel performing work under this subcontract currently participating in a disclosed or otherwise identified Foreign

Government Talent Recruitment Program of a Foreign Country of Risk must either stop performing work within the scope of the Alliance Prime Contract with DOE, or stop participation in such activity within a reasonable period of time, not to exceed 30 days, until DOE makes a final determination in accordance with DOE Order 486.1A, Attachment 1 Contractor Requirements

Document.

Definitions:

(1) Foreign Country of Risk. Any foreign country determined to be of risk, following consideration of, but not limited to, the Office of the Director of National Intelligence WorldWide Threat

Assessment and The National Counterintelligence Strategy of the United States of America, by the Under Secretary for Science in consultation with the Under Secretary of Energy; the Under

Secretary for Nuclear Security; and the Office of Intelligence and Counterintelligence.

(2) Foreign Government-Sponsored Talent Recruitment Program. An effort directly or indirectly organized, managed, or funded by a foreign government to recruit science and technology professionals or students (regardless of citizenship or national origin, and whether having a full-time or part-time position). Some foreign government-sponsored talent recruitment programs operate with the intent to import or otherwise acquire from abroad, sometimes through illicit means, proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to physically relocate to the foreign state for the above purpose. Some programs allow for or encourage continued employment at U.S. research facilities or receipt of Federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to U.S. entities. Compensation could take many forms including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.

SCIENTIFIC INTEGRITY (FEB 2024)

Derived from DOE O 411.2 (JAN 2017)

(Applies to all research and development subcontracts supported by U.S. Department of Energy

(DOE) funding. The requirements of this Article do not affect the rights to publications, etc., granted to the Subcontractor under Appendix C)

DEFINITIONS

“DOE Policy Matter” within the context of this Clause shall mean guidelines, plans or strategies related to energy security, environmental management, research and development, nuclear security, energy efficiency, renewable energy, climate change, electricity delivery and energy reliability, energy regulations and standards and internal energy corporation.

“Media Inquiry” shall mean a request for response or comment made by members of the media, such as journalists, reporters, or broadcasters.

“Non-Technical Information” shall mean information of a non-technical nature, such as business data, financial data, customer data, sales data and procurement data.

“Organizational Capacity” shall mean acting or speaking in an official or employment capacity, including actions or speech made, or reasonably interpreted to be made, on behalf of an institution or organization.

“Scientific and Technical Information” shall mean findings, analyses, or results related to R&D or other scientific and technological endeavors; is generated by work funded by DOE or performed at

DOE facilities; and is deemed by the originator to be useful beyond the originating organization, i.e., intended to be published or disseminated.

“Scientific and Technical Opinion” shall mean an opinion that is well grounded in theory and supported by scientific studies demonstrating that the results are fit for their intended use.

a. When directly expressing personal views on DOE Policy Matters to the public and media, Subcontractor shall ensure that Subcontractor personnel clarify that they are expressing their own views and not those of NREL, the DOE, or the U.S. Government.

b. Representations by Subcontractors or their personnel attributed to NREL, the U.S.

Government, or DOE, or on DOE Policy Matters require the authorization of the NREL

Subcontract Administrator who shall coordinate such authorization with DOE headquarters.

c. Subcontractor, including Subcontractor management, must not suppress or alter Scientific and Technological

Information, nor intimidate or coerce its research personnel, lower-tier subcontractors, or others to alter or censor Scientific and Technological Information and associated conclusions.

d. Subcontractor must inform the NREL Subcontract Administrator of Media Inquiries that are related to the work performed under the Subcontract.

e. If a planned response to a Media Inquiry extends beyond the established Scientific and

Technological Information and relates to DOE Policy Matters, the Subcontractor must coordinate its response with NREL prior to providing the response, specifically by informing the Subcontract Administrator who will coordinate with DOE headquarters.

f. Public representations made by the Subcontractor or Subcontractor personnel in their

Organizational Capacity related to NREL, the Government, or DOE, including DOE

Policy Matters, must be pre-approved by the NREL Subcontract Administrator who shall coordinate such authorization with DOE headquarters, as applicable.

g. Under the provisions of DEAR 952.204-75 (Public Affairs) included in Appendix B to this subcontract, the Subcontractor must obtain pre-approval of news releases related to general, non-technical information concerning the existence of the subcontract, the identity of the parties, and the character and scope of the Subcontractor’s effort, including NREL/DOE policies, programs, and activities from the NREL Subcontract Administrator who shall coordinate with DOE headquarters, before issuing the new release. [For the sake of clarification DOE considers news releases issued by the Subcontractor that are related to the work performed under the Subcontract to be those of NREL/DOE, rather than the

Subcontractor or an individual researcher, and hence reflect upon both the Subcontractor that issues the news release and NREL/DOE.]

h. The dissemination of Scientific and Technical Information may be restricted by laws, regulations, and DOE directives governing classified, privacy, proprietary, and other protected information. As applicable, documents in a classified subject area must be reviewed in accordance with DOE O475.2B, Identifying Classified Information, prior to public release.

i. Digital and Social Media:

(1) Subcontractor and Subcontractor personnel need not seek NREL/DOE headquarters approval to use digital media in their Organizational Capacity, except as otherwise provided in this Clause. Subcontractor personnel need not seek NREL/DOE headquarters approval to use digital media in their personal and individual capacity.

(2) Subcontractor management must not suppress or alter the social media posts of its personnel made in the personnel’s personal and individual capacity that express

Scientific and Technical Opinions.

j. The Subcontractor is responsible for maintaining the integrity of research performed pursuant to its NREL Subcontract as provided in the clause titled “Research

Misconduct” derived from DEAR 952.235-71 in Appendix B to this subcontract

k. Subcontractor management must provide its personnel an opportunity to review, prior to publication or release, any public communication (e.g., press release) related to work performed under the Subcontract that substantially relies on the research or is released under

Subcontractor’s personnel name.

l. In general, any policies impacting the professional development activities of Subcontractor personnel are the purview of the Subcontractor. However, the Subcontractor must follow applicable Subcontract guidance on conference attendance and management of Scientific and

Technical Information.

m. Flowdown. The Subcontractor shall insert the substance of this clause, including this paragraph (m), in all lower-tier subcontracts under this Subcontract.

Alterations to Terms and Conditions

Appendix C-1, entitled “Intellectual Property Provisions for LARGE Businesses, State and Local

Governments, or Foreign Organizations (Research, Development, or Demonstration)” dated 8/1/2022 is hereby modified to delete Clause 3, “Rights in Data – General” and replace it with the following:

CLAUSE 3 - RIGHTS IN DATA - FACILITIES (DEC 2000)

(a) Definitions

(1) Computer data bases, as used in this clause, means a collection of data in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer. The term does not include computer software.

(2) Computer software, as used in this clause, means

(i) computer programs which are data comprising a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations and

(ii) data comprising source code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the computer program to be produced, created, or compiled. The term does not include computer data bases.

(3) Data, as used in this clause, means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term “data” does not include data incidental to the administration of this contract, such as financial, administrative, cost and pricing, or management information.

(4) Limited rights data, as used in this clause, means data, other than computer software, developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged. The Government's rights to use, duplicate, or disclose limited rights data are as set forth in the Limited Rights Notice of subparagraph (e) of this clause.

(5) Restricted computer software, as used in this clause, means computer software developed at private expense and that is a trade secret; is commercial or financial and is confidential or privileged; or is published copyrighted computer software, including minor modifications of any such computer software. The Government's rights to use, duplicate, or disclose restricted computer software are as set forth in the Restricted Rights Notice of paragraph (f) of this clause.

(6) Technical data, as used in this clause, means recorded data, regardless of form or characteristic, that are of a scientific or technical nature. Technical data does not include computer software but does include manuals and instructional materials and technical data formatted as a computer data base.

(7) Unlimited rights, as used in this clause, means the right of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, including by electronic means, and perform publicly and display publicly, in any manner, including by electronic means, and for any purpose whatsoever, and to have or permit others to do so.

(b) Allocation of Rights

(1) The Government shall have:

(i) Ownership of all technical data and computer software first produced in the performance of this

Contract;

(ii) Unlimited rights in technical data and computer software specifically used in the performance of this Contract, except as provided herein regarding copyright, limited rights data, or restricted computer software, or except for other data specifically protected by statute for a period of time or, where, approved by DOE, appropriate instances of the DOE Work for Others Program;

(iii) The right to inspect technical data and computer software first produced or specifically used in the performance of this Contract at all reasonable times. The Contractor shall make available all necessary facilities to allow DOE personnel to perform such inspection;

(iv) The right to have all technical data and computer software first produced or specifically used in the performance of this Contract delivered to the Government or otherwise disposed of by the

Contractor, either as the contracting officer may from time to time direct during the progress of the work or in any event as the contracting officer shall direct upon completion or termination of this Contract. The Contractor agrees to leave a copy of such data at the facility or plant to which such data relate, and to make available for access or to deliver to the Government such data upon request by the contracting officer. If such data are limited rights data or restricted computer software, the rights of the Government in such data shall be governed solely by the provisions of paragraph (e) of this clause (“Rights in Limited Rights Data”) or paragraph (f) of this clause (“Rights in Restricted Computer Software”); and

(v) The right to remove, cancel, correct, or ignore any markings not authorized by the terms of this

Contract on any data furnished hereunder if, in response to a written inquiry by DOE concerning the propriety of the markings, the Contractor fails to respond thereto within 60 days or fails to substantiate the propriety of the markings. In either case DOE will notify the Contractor of the action taken.

(2) The Contractor shall have:

(i) The right to withhold limited rights data and restricted computer software unless otherwise provided in accordance with the provisions of this clause; and

(ii) The right to use for its private purposes, subject to patent, security or other provisions of this Contract, data it first produces in the performance of this Contract, except for data in DOE's Uranium Enrichment Technology, including diffusion, centrifuge, and atomic vapor laser isotope separation, provided the data requirements of this Contract have been met as of the date of the private use of such data.

(3) The Contractor agrees that for limited rights data or restricted computer software or other technical, business or financial data in the form of recorded information which it receives from, or is given access to by, DOE or a third party, including a DOE Contractor or subcontractor, and for technical data or computer software it first produces under this Contract which is authorized to be marked by DOE, the Contractor shall treat such data in accordance with any restrictive legend contained thereon.

(c) Copyrighted Material

(1) The Contractor shall not, without prior written authorization of the Patent Counsel, assert copyright in any technical data or computer software first produced in the performance of this contract. To the extent such authorization is granted, the Government reserves for itself and others acting on its behalf, a nonexclusive, paid-up, irrevocable, world-wide license for Governmental purposes to publish, distribute, translate, duplicate, exhibit, and perform any such data copyrighted by the Contractor.

(2) The Contractor agrees not to include in the technical data or computer software delivered under the contract any material copyrighted by the Contractor and not to knowingly include any material copyrighted by others without first granting or obtaining at no cost a license therein for the benefit of the Government of the same scope as set forth in paragraph (c)(1) of this clause. If the Contractor believes that such copyrighted material for which the license cannot be obtained must be included in the technical data or computer software to be delivered, rather than merely incorporated therein by reference, the Contractor shall obtain the written authorization of the contracting officer to include such material in the technical data or computer software prior to its delivery.

(d) Subcontracting

(1) Unless otherwise directed by the contracting officer, the Contractor agrees to use in subcontracts in which technical data or computer software is expected to be produced or in subcontracts for supplies that contain a requirement for production or delivery of data in accordance with the policy and procedures of 48 CFR Subpart 27.4 as supplemented by 48 CFR 927.401 through 927.409, the clause entitled, “Rights in Data-General” at 48 CFR 52.227-14 modified in accordance with 927.409(a) and including Alternate V. Alternates II through IV of that clause may be included as appropriate with the prior approval of DOE Patent Counsel, and the Contractor shall not acquire rights in a subcontractor's limited rights data or restricted computer software, except through the use of Alternates II or III, respectively, without the prior approval of DOE Patent Counsel. The clause at 48 CFR 52.227-16, Additional Data Requirements, shall be included in subcontracts in accordance with DEAR 927.409(h). The contractor shall use instead the Rights in Data-Facilities clause at 48 CFR 970.5227-1 in subcontracts, including subcontracts for related support services, involving the design or operation of any plants or facilities or specially designed equipment for such plants or facilities that are managed or operated under its contract with DOE.

(2) It is the responsibility of the Contractor to obtain from its subcontractors technical data and computer software and rights therein, on behalf of the Government, necessary to fulfill the Contractor's obligations to the Government with respect to such data. In the event of refusal by a subcontractor to accept a clause affording the Government such rights, the Contractor shall:

(3)

(i) Promptly submit written notice to the contracting officer setting forth reasons or the subcontractor's refusal and other pertinent information which may expedite disposition of the matter, and

(ii) Not proceed with the subcontract without the written authorization of the contracting officer.

(4) Neither the Contractor nor higher-tier subcontractors shall use their power to award subcontracts as economic leverage to acquire rights in a subcontractor's limited rights data or restricted computer software for their private use.

(e) Rights in Limited Rights Data

Except as may be otherwise specified in this Contract as data which are not subject to this paragraph, the Contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up license by or for the Government, in any limited rights data of the Contractor specifically used in the performance of this Contract, provided, however, that to the extent that any limited rights data when furnished or delivered is specifically identified by the Contractor at the time of initial delivery to the

Government or a representative of the Government, such data shall not be used within or outside the

Government except as provided in the “Limited Rights Notice” set forth. All such limited rights data shall be marked with the following “Limited Rights Notice”:

Limited Rights Notice

These data contain “limited rights data,” furnished under Contract No. ________ with the United States

Department of Energy which may be duplicated and used by the Government with the express limitations that the “limited rights data” may not be disclosed outside the Government or be used for purposes of manufacture without prior permission of the Contractor, except that further disclosure or use may be made solely for the following purposes:

(1) Use (except for manufacture) by support services contractors within the scope of their contracts;

(2) This “limited rights data” may be disclosed for evaluation purposes under the restriction that the

“limited rights data” be retained in confidence and not be further disclosed;

(3) This “limited rights data” may be disclosed to other contractors participating in the Government's program of which this Contract is a part for information or use (except for manufacture) in connection with the work performed under their contracts and under the restriction that the “limited rights data” be retained in confidence and not be further disclosed;

(4) This “limited rights data” may be used by the Government or others on its behalf for emergency repair or overhaul work under the restriction that the “limited rights data” be retained in confidence and not be further disclosed; and

(5) Release to a foreign government, or instrumentality thereof, as the interests of the United States

Government may require, for information or evaluation, or for emergency repair or overhaul work by such government. This Notice shall be marked on any reproduction of this data in whole or in part.

(End of notice)

(f) Rights in restricted computer software

(1) Except as may be otherwise specified in this Contract as data which are not subject to this paragraph, the Contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up, license by or for the Government, in any restricted computer software of the Contractor specifically used in the performance of this Contract, provided, however, that to the extent that any restricted computer software when furnished or delivered is specifically identified by the Contractor at the time of initial delivery to the Government or a representative of the Government, such data shall not be used within or outside the Government except as provided in the “Restricted Rights Notice” set forth below. All such restricted computer software shall be marked with the following “Restricted Rights Notice”:

Restricted Rights Notice-Long Form

(i) This computer software is submitted with restricted rights under Department of Energy Contract

No. _______. It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice.

(ii) This computer software may be:

i. Used or copied for use in or with the computer or computers for which it was acquired, including use at any Government installation to which such computer or computers may be transferred;

ii. Used, copied for use, in a backup or replacement computer if any computer for which it was acquired is inoperative or is replaced;

iii. Reproduced for safekeeping (archives) or backup purposes;

iv. Modified, adapted, or combined with other computer software, provided that only the portions of the derivative software consisting of the restricted computer software are to be made subject to the same restricted rights; and

v. Disclosed to and reproduced for use by contractors under a service contract (of the type defined in 48 CFR 37.101) in accordance with subparagraphs (b)(1) through (4) of this

Notice, provided the Government makes such disclosure or reproduction subject to these restricted rights.

(iii) Notwithstanding the foregoing, if this computer software has been published under copyright, it is licensed to the Government, without disclosure prohibitions, with the rights set forth in the restricted rights notice above.

(iv) This Notice shall be marked on any reproduction of this computer software, in whole or in part.

(2) Where it is impractical to include the Restricted Rights Notice on restricted computer software, the following short-form Notice may be used.

Restricted Rights Notice—Short Form

Use, reproduction, or disclosure is subject to restrictions set forth in the Long Form Notice of DOE

Contract No. _______ with (name of Contractor).

(3) If the software is embedded, or if it is commercially impractical to mark it with human readable text, then the symbol R and the clause date (mo/yr), in brackets or a box, a [R-mo/yr], may be used. This will be read to mean restricted computer software, subject to the rights of the Government as described in the Long Form Notice, in effect as of the date indicated next to the symbol. The symbol shall not be used to mark human readable material. In the event this Contract contains any variation to the rights in the Long Form Notice, then the contract number must also be cited.

(4) If restricted computer software is delivered with the copyright notice of 17 U.S.C. 401, the software will be presumed to be published copyrighted computer software licensed to the Government without disclosure prohibitions and with unlimited rights, unless the Contractor includes the following statement with such copyright notice “Unpublished-rights reserved under the Copyright Laws of the United States.”

(g) Relationship to patents

Nothing contained in this clause creates or is intended to imply a license to the Government in any patent or is intended to be construed as affecting the scope of any licenses or other rights otherwise granted to the Government under any patent.

(End of clause)

Alternate I (DEC 2000)

As prescribed in 48 CFR 970.2704-3(a), where access to Category C-24 restricted data is contemplated in the performance of a contract the contracting officer shall insert the phrase “and except Restricted

Data in category C-24, 10 CFR part 725, in which DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including related data and technology” after

“laser isotope separation” and before the comma in paragraph (b)(2)(ii) of the clause at 48 CFR

970.5227-1, Rights in Data—Facilities, as appropriate.

(End of clause)”

The following clause is added to Appendix B-2

BUY AMERICAN - SUPPLIES (OCT 2022)

Derived from FAR 52.225-1 (OCT 2022)

(Applies to subcontracts exceeding the micro-purchase threshold)

(a) Definitions. As used in this clause—

(1) “Commercially available off-the-shelf (COTS) item”—

(i) Means any item of supply (including construction material) that is–

(A) A commercial product (as defined in paragraph (1) of the definition of

“commercial product” at FAR 2.101);

(B) Sold in substantial quantities in the commercial marketplace; and

(C) Offered to NREL/the Government, under a subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(ii) Does not include bulk cargo, as defined in 46 U.S.C.40102(4), such as agricultural products and petroleum products.

(2) “Component” means an article, material, or supply incorporated directly into an end product.

(3) “Cost of components” means—

(i) For components purchased by the Subcontractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(ii) For components manufactured by the Subcontractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product.

(4) “Critical component” means a component that is mined, produced, or manufactured in the United States and deemed critical to the U.S. supply chain. The list of critical components is at FAR 25.105.

(5) “Domestic end product” means—

(i) For an end product that does not consist wholly or predominantly of iron or steel or a combination of both-

(A) An unmanufactured end product mined or produced in the United States;

(B) An end product manufactured in the United States, if-

(1) The cost of its components mined, produced, or manufactured in the United States exceeds 60 percent of the cost of all its components, except that the percentage will be 65 percent for items delivered in calendar years 2024 through 2028 and 75 percent for items delivered starting in calendar year 2029. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic.

Components of unknown origin are treated as foreign. Scrap generated, collected, and prepared for processing in the United States is considered domestic; or

(2) The end product is a COTS item; or

(ii) For an end product that consists wholly or predominantly of iron or steel or a combination of both, an end product manufactured in the United States, if the cost of foreign iron and steel constitutes less than 5 percent of the cost of all the components used in the end product. The cost of foreign iron and steel includes but is not limited to the cost of foreign iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the end product and a good faith estimate of the cost of all foreign iron or steel components excluding COTS fasteners. Iron or steel components of unknown origin are treated as foreign. If the end product contains multiple components, the cost of all the materials used in such end product is calculated in accordance with the definition of "cost of components".

(6) “End product” means those articles, materials, and supplies to be acquired under the contract for public use.

(7) “Fastener” means a hardware device that mechanically joins or affixes two or more objects together. Examples of fasteners are nuts, bolts, pins, rivets, nails, clips, and screws.

(8) “Foreign end product” means an end product other than a domestic end product.

(9) “Foreign iron and steel” means iron or steel products not produced in the United

States.

(10) “Produced in the United States” means that all manufacturing processes of the iron or steel must take place in the United States, from the initial melting stage through the application of coatings, except metallurgical processes involving refinement of steel additives. The origin of the elements of the iron or steel is not relevant to the determination of whether it is domestic or foreign.

(11) “Predominantly of iron or steel or a combination of both” means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components.

The cost of iron and steel is the cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or steel components excluding COTS fasteners.

(12) “Steel” means an alloy that includes at least 50 percent iron, between 0.02 and 2 percent carbon, and may include other elements.

(13) United States means the 50 States, the District of Columbia, and outlying areas.

(b) 41 U.S.C. chapter 83, Buy American, provides a preference for domestic end products for supplies acquired for use in the United States. In accordance with 41 U.S.C. 1907, the domestic content test of the Buy American statute is waived for an end product that is a COTS item (see 12.505(a)(1)), except that for an end product that consists wholly or predominantly of iron or steel or a combination of both, the domestic content test is applied only to the iron and steel content of the end product, excluding COTS fasteners.

(c) Subcontractors may obtain from the NREL Subcontract Administrator a list of foreign articles that the NREL Subcontract Administrator will treat as domestic for this contract.

(d) The Subcontractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the solicitation entitled "Buy American Certificate."”

WORKERS’ COMPENSATION INSURANCE

Unless specifically exempted by State law, the Subcontractor shall procure adequate workers’ compensation insurance and provide proof of such insurance to the NREL Subcontract Administrator, or its agent before the commencement of work under the subcontract. The workers’ compensation insurance shall be maintained in full effect as required by applicable State law and regulations covering all employees engaged in work related to this subcontract or performing services throughout the duration of this subcontract. As applicable, the Subcontractor shall be responsible for complying with all requirements to obtain an exemption from coverage under the applicable State law and shall provide proof of such exemption to the NREL Subcontract Administrator or its agent before the commencement of work under the subcontract. Noncompliance with this insurance provision shall be considered a material breach of the subcontract. This insurance provision supersedes any workers’ compensation requirement that may be resident in an applicable B-Appendix to the subcontract.

Appendices

APPENDIX B-2

Standard Terms and Conditions for Research and Development Subcontracts

Please refer to the full appendix text: https://www.nrel.gov/workingwithus/standard-terms.html

APPENDIX C-1

Intellectual Property Provisions for Large Business, State and Local Governments, of Foreign Organizations

(Research, Development, or Demonstration)

APPENDIX D

Standard Terms and Conditions for Subcontracts in Excess of $700,000

APPENDIX F

Small Business Lower-Tier Subcontracting Plan (IF APPLICABLE)