Attachment F - Administrative and National Policy Requirements.docx

ATTACHMENT F

ADMINISTRATIVE AND NATIONAL POLICY REQUIREMENTS

1. Administrative Requirements

The administrative requirements for DOE grants and cooperative agreements are contained in 2 CFR 200 as modified by 2 CFR 910 (DOE Financial Assistance Regulations).

2. Availability of Funds

Funds are not presently available for this award. The Government’s obligation under this award is contingent upon the availability of appropriated funds from which payment for award purposes can be made. No legal liability on the part of the Government for any payment may arise until funds are made available to the DOE Contracting Officer for this award and until the awardee receives notice of such availability, to be confirmed in writing by the DOE Contracting Officer.

3. Conference Spending (February 2015)

The recipient shall not expend any funds on a conference not directly and programmatically related to the purpose for which the grant or cooperative agreement was awarded that would defray the cost to the United States Government of a conference held by any Executive branch department, agency, board, commission, or office for which the cost to the United States Government would otherwise exceed $20,000, thereby circumventing the required notification by the head of any such Executive Branch department, agency, board, commission, or office to the Inspector General (or senior ethics official for any entity without an Inspector General), of the date, location, and number of employees attending such conference.

4. Commitment of Public Funds

(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 Grants Officer.

(b) Recipients are free to accept or reject the award. A request to draw down DOE funds constitutes the Recipient’s acceptance of the terms and conditions of this Award.

5. Corporate Felony Conviction and Federal Tax Liability Representations (March 2014)

In submitting an application in response to this NOFO the Applicant represents that:

· It is not a corporation that has been convicted of a felony criminal violation under any Federal law within the preceding 24 months,

· It is not a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.

For purposes of these representations the following definitions apply:

· A Corporation includes any entity that has filed articles of incorporation in any of the 50 states, the District of Columbia, or the various territories of the United States [but not foreign corporations]. It includes both for-profit and non-profit organizations.

6. Environmental, Safety and Health (ES&H) Performance of Work at DOE Facilities

With respect to the performance of any portion of the work under this award which is performed at a DOE-owned or controlled site, the recipient agrees to comply with all state and Federal ES&H regulations, and with all other ES&H requirements of the operator of such site.

Prior to the performance on any work at a DOE-Owned or controlled site, the recipient shall contact the site facility manager for information on DOE and site specific ES&H requirements.

The recipient shall apply this provision to all subrecipients at any tier.

7. Federal, State, and Local Requirements

With respect to the performance of any portion of the work under this award, the recipient agrees to comply with all applicable local, state, and Federal ES&H regulations. The recipient shall apply this provision to all sub awardees at any tier.

8. Funding Restrictions

Funding for all awards and future budget periods are contingent upon the availability of funds appropriated by Congress for the purpose of this program and the availability of future-year budget authority.

Cost Principles: Costs must be allowable, allocable and reasonable in accordance with the applicable Federal cost principles referenced in 2 CFR 200 as modified by 2 CFR 910 (DOE Financial Assistance Regulation).

Pre-award Costs: Recipients may charge to an award resulting from this NOFO pre-award costs that were incurred within the ninety (90) calendar day period immediately preceding the effective date of the award, if the costs are allowable in accordance with the applicable Federal cost principles referenced in 2 CFR 200 as modified by 2 CFR 910 (DOE Financial Assistance Regulation). Recipients must obtain the prior approval of the DOE Contracting Officer for any pre-award costs that are for periods greater than this 90 day calendar period.

Pre-award costs are incurred at the applicant’s risk. DOE is under no obligation to reimburse such costs if for any reason the applicant does not receive an award or if the award is made for a lesser amount than the applicant expected.

9. National Environmental Policy Act (NEPA) Compliance

If question 4.a. on the “Research and Related Other Project Information” document indicates “potential impact on the environment”, or if DOE’s own review indicates it, DOE may ask the applicant to provide additional information on those impacts in order to prepare an environmental critique/synopsis per 10 CFR 1021.216. Note that this pre-award environmental critique/synopsis process would be separate from the preparation of a NEPA document such as an environmental impact statement (EIS) or an environmental assessment (EA). If DOE determines the latter documentation is necessary, this process would need to be completed, funded by and with the participation of the awardee, prior to them taking any action on the proposed project that could have adverse environmental effects or that could limit the choice of reasonable alternatives. Note that in most cases, even when “Potential Impact to the Environment” is checked “Yes,” preparation of such NEPA documents is rarely necessary, but DOE has the expectation that the Applicant will disclose the potential, which would serve to initiate dialog with DOE if necessary. The inability to satisfy the NEPA requirements after an award would result in cancellation of the award.

10. Nondisclosure and Confidentiality Agreements Representations (June 2015)

In submitting an application in response to this NOFO the Applicant represents that:

(1) It does not and will not require its employees or contractors to sign internal nondisclosure or confidentiality agreements or statements prohibiting or otherwise restricting its employees or contactors from lawfully reporting waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

(2) It does not and will not use any Federal funds to implement or enforce any nondisclosure and/or confidentiality policy, form, or agreement it uses unless it contains the following provisions:

a. ‘‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’’

b. The limitation above shall not contravene requirements applicable to Standard Form 312, Form 4414, or any other form issued by a Federal department or agency governing the nondisclosure of classified information.

c. Notwithstanding provision listed in paragraph (a), a nondisclosure or confidentiality policy form or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure or confidentiality forms shall also make it clear that they do not bar disclosures to Congress, or to an authorized official of an executive agency or the Department of Justice, that are essential to reporting a substantial violation of law.

11. Notice Regarding Eligible/Ineligible Activities

Eligible activities under this program include those which describe and promote the understanding of scientific and technical aspects of specific energy technologies, but not those which encourage or support political activities such as the collection and dissemination of information related to potential, planned or pending legislation.

12. Prohibition on Discrimination and Harassment

All people conducting, supporting, or participating in scientific research under this award must be able to do so on the basis of their abilities and without any unnecessary barriers. Recipients of awards resulting from this NOFO are prohibited from engaging in discrimination on any basis prohibited by law, including harassment (sexual or non-sexual) as contained in 10 CFR 1040, 1041, and 1042.

Recipients may contact the DOE’s Office of Civil Rights for technical assistance in meeting their institutional requirements under these regulations, including assistance in addressing complaints of discrimination or harassment (https://www.energy.gov/diversity/title-ix). The United States Equal Employment Opportunity Commission also makes a number of resources available at https://www.eeoc.gov/eeoc/publications/index.cfm to ensure that employees may perform their work without hindrance. Graduate students and post-doctoral researchers are understood to have a dual role as both trainees and employees, in accordance with 2 CFR 200.400 (f).

13. Prohibition on Lobbying Activity

By accepting funds under this award, you agree that none of the funds obligated on the award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 USC 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.

14. Proprietary Application Information

Patentable ideas, trade secrets, proprietary or confidential commercial or financial information, disclosure of which may harm the applicant, should be included in an application only when such information is necessary to convey an understanding of the proposed project. The use and disclosure of such data may be restricted, provided the applicant includes the following legend on the first page of any document included in the application that contains such proprietary information and specifies the pages of the document which are to be restricted:

“The data contained in pages _____ of this document 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.”

To protect such data, each line or paragraph on the pages containing such data must be specifically identified and marked with a legend similar to the following:

“The following contains proprietary information that (name of applicant) requests not be released to persons outside the Government, except for purposes of review and evaluation.”

15. Publications

The recipient is expected to publish or otherwise make publicly available the results of the work conducted under any award resulting from this NOFO. Publications and other methods of public communication describing any work based on or developed under an award resulting from this NOFO must contain an acknowledgment of SC support. The format for such acknowledgments is provided at https://science.osti.gov/funding-opportunities/acknowledgements/. The author’s copy of any peer-reviewed manuscript accepted for publication must be announced to DOE’s Office of Scientific and Technical Information (OSTI) and made publicly available in accordance with the instructions contained in the Reporting Requirements Checklist incorporated in all Assistance Agreements.

16. Registration Requirements

Additional administrative requirements for DOE grants and cooperative agreements are contained in 2 CFR 25 (See: www.eCFR.gov). Prime awardees must keep their data in SAM current at www.SAM.gov. Subrecipients at all tiers must obtain UEI numbers and provide the UEI to the prime awardee before the subaward can be issued.

17. Research Misconduct

Scientific discoveries can only take place when scientific research is conducted in a fair, transparent, and honestly reported manner. Any form of dishonesty—whether plagiarism, falsifying results, or misrepresenting conditions—makes it impossible to advance our understanding of the physical universe.

Recipients are “responsible for maintaining the integrity of research of any kind under an award from DOE including the prevention, detection, and remediation of research misconduct, and the conduct of inquiries, investigations, and adjudication of allegations of research misconduct,” and conducting appropriate administrative processes in response to allegations of research misconduct in accordance with 2 CFR 910.132. Allegations of any misconduct under an award resulting from this NOFO must be reported to the appropriate institutional officials in accordance with institutional policies against misconduct. Additional information on DOE research misconduct policies can be found at: https://science.osti.gov/grants/Policy-and-Guidance/Research-Misconduct.

18. Rights in Technical Data

Normally, the government has unlimited rights in technical data created under a DOE agreement, including the right to distribute to the public. Delivery or third party licensing of proprietary software or data developed solely at private expense (“Limited Rights Data”) will not normally be required except as specifically negotiated in a particular agreement to satisfy DOE’s own needs or to insure the commercialization of technology developed under a DOE agreement.

If software is specified for delivery to DOE, or if other special circumstances exist, e.g., DOE specifying “open-source” treatment of software, then the DOE Contracting Officer, after negotiation with the recipient, may include in the award special provisions requiring the recipient to obtain written approval of the DOE Contracting Officer prior to asserting copyright in the software, modifying the retained Government license, and/or otherwise altering the copyright provisions.

19. Subaward and Executive Reporting

Additional administrative requirements necessary for DOE grants and cooperative agreements to comply with the Federal Funding and Transparency Act of 2006 (FFATA) are contained in 2 CFR 170. (See: www.eCFR.gov ). Prime awardees must register with the new FSRS database at https://www.fsrs.gov and report the required data on their first tier subrecipients. Prime awardees must report the executive compensation for their own executives as part of their registration profile in SAM.

20. Title to Subject Inventions

A primary objective of DOE’s multi-billion dollar research, development and demonstration investments is to cultivate new research and development ecosystems, manufacturing capabilities, and supply chains for and by U.S. industry and labor. Therefore, in exchange for receiving taxpayer dollars to support an applicant’s project, the applicant must agree to the following U.S. Competitiveness Provision as part of an award under this NOFO.

U.S. Competitiveness

The Recipient agrees that any products embodying any subject invention or produced through the use of any subject invention will be manufactured substantially in the United States unless the Recipient can show to the satisfaction of DOE that it is not commercially feasible. In the event DOE agrees to foreign manufacture, there will be a requirement that the Government's support of the technology be recognized in some appropriate manner, e.g., alternative binding commitments to provide an overall net benefit to the U.S. economy. The Recipient agrees that it will not license, assign or otherwise transfer any subject invention to any entity, at any tier, unless that entity agrees to these same requirements. Should the Recipient or other such entity receiving rights in the invention(s): (1) undergo a change in ownership amounting to a controlling interest, or (2) sell, assign, or otherwise transfer title or exclusive rights in the invention(s), then the assignment, license, or other transfer of rights in the subject invention(s) is/are suspended until approved in writing by DOE. The Recipient and any successor assignee will convey to DOE, upon written request from DOE, title to any subject invention, upon a breach of this paragraph. The Recipient will include this paragraph in all subawards/contracts, regardless of tier, for experimental, developmental or research work.

Please note that a subject invention is any invention conceived or first actually reduced in performance of work under an award. An invention is any invention or discovery which is or may be patentable. The contractor includes any awardee, recipient, sub-awardee, or sub-recipient.

As noted in the U.S. Competitiveness Provision, at any time in which an entity cannot meet the requirements of the U.S. Competitiveness Provision, the entity may request a modification or waiver of the U.S. Competitiveness Provision. For example, the entity may propose modifying the language of the U.S. Competitiveness Provision in order to change the scope of the requirements or to provide more specifics on the application of the requirements for a particular technology. As another example, the entity may request that the U.S. Competitiveness Provision be waived in lieu of a net benefits statement or U.S. manufacturing plan. The statement or plan would contain specific and enforceable commitments that would be beneficial to the U.S. economy and competitiveness. Examples of such commitments could include manufacturing specific products in the U.S., making a specific investment in a new or existing U.S. manufacturing facility, keeping certain activities based in the U.S. or supporting a certain number of jobs in the U.S. related to the technology. DOE may, in its sole discretion, determine that the proposed modification or waiver promotes commercialization and provides sufficient U.S. economic benefits, and grant the request. If granted, DOE will modify the award terms and conditions for the requesting entity accordingly.

The U.S. Competitiveness Provision is implemented by DOE pursuant to a Determination of Exceptional Circumstances (DEC) under the Bayh-Dole Act and DOE Patent Waivers.

· Determination of Exceptional Circumstances (DEC): DOE has issued the DEC entitled, “DETERMINATION OF EXCEPTIONAL CIRCUMSTANCES (DEC) UNDER THE BAYH-DOLE ACT TO FURTHER PROMOTE DOMESTIC MANUFACTURE OF DOE SCIENCE AND ENERGY TECHNOLOGIES”, dated June 7, 2021, pursuant to 37 CFR 401.3(a)(2), which applies to agreements issued under this NOFO requiring each applicant to agree to a U.S. Competitiveness Provision. DOE has determined that exceptional circumstances exist that warrant the modification of the standard patent rights clause for small businesses and non-profit awardees under the Bayh-Dole Act, 35 U.S.C. 200 et seq., to the extent necessary to ensure that DOE “obtains sufficient rights in the federally supported inventions to meet the needs of [DOE]” and “to promote the commercialization and public availability of inventions made in the United States by United States industry and labor” and/or further promote other purposes of the Bayh-Dole Act. 35 U.S.C. § 200. In accordance with this DEC, all awards, including sub-awards, under this NOFO shall include the U.S. Competitiveness Provision above. A copy of the DEC can be found at https://www.energy.gov/gc/determination-exceptional-circumstances-decs.

· Pursuant to 37 CFR § 401.4, any nonprofit organization or small business firm as defined by 35 U.S.C. 201 affected by any DEC has the right to appeal it by providing written notice to DOE within 30 working days from the time it receives a copy of the determination.

· DOE may require additional submissions or requirements as authorized by any applicable DEC.

· DEC: DOE has issued the DEC entitled, “DETERMINATION OF EXCEPTIONAL CIRCUMSTANCES UNDER THE BAYH-DOLE ACT FOR QUANTUM INFORMATION SCIENCE TECHNOLOGIES”, dated August 28, 2020, pursuant to 37 CFR 401.3(a)(2), which applies to agreements issued under this NOFO requiring each applicant to agree to a U.S. Competitiveness Provision. DOE has determined that exceptional circumstances exist that warrant the modification of the standard patent rights clause for small businesses and non-profit awardees under the Bayh-Dole Act, 35 U.S.C. 200 et seq., to the extent necessary to ensure that DOE “obtains sufficient rights in the federally supported inventions to meet the needs of [DOE]” and “to promote the commercialization and public availability of inventions made in the United States by United States industry and labor” and/or further promote other purposes of the Bayh-Dole Act. 35 U.S.C. § 200. In accordance with this DEC, all awards, including sub-awards, under this NOFO shall include the U.S. Competitiveness Provision above. A copy of the DEC can be found at https://www.energy.gov/gc/determination-exceptional-circumstances-decs.

Ownership of subject inventions is governed pursuant to the authorities listed below:

· Nonprofit organizations or small business firms: Under the Bayh-Dole Act (35 U.S.C. § 200 et seq.), nonprofit organizations or small business firms as defined by 35 U.S.C. 201 may elect to retain title to their subject inventions subject to the above identified U.S. Competitiveness Provision.

· All other parties: The federal Non-Nuclear Energy Act of 1974, 42. U.S.C. 5908, provides that the government obtains title to new inventions unless a waiver is granted (see below).

· Patent Waiver: Applicants may request a waiver of all or any part of the rights of the United States in inventions conceived or first actually reduced to practice in performance of an agreement as a result of this NOFO, in advance of or within 30 days after the effective date of the award. Even if such advance waiver is not requested or the request is denied, the recipient will have a continuing right under the award to request a waiver of the rights of the United States in identified inventions, i.e., individual inventions conceived or first actually reduced to practice in performance of the award. Any patent waiver that may be granted is subject to certain terms and conditions in 10 CFR 784. For more information, see https://energy.gov/gc/services/technology-transfer-and-procurement/office-assistant-general-counsel-technology-transf-1 . Nonprofit organizations and small business firms do not need a patent waiver in order to retain title to their subject inventions (see above).

Class Patent Waiver: DOE has issued Class Patent Waiver No. W(C) 2020-001 that applies to this NOFO for any domestic large business that is a recipient, or subrecipient at any tier to this NOFO and is providing at least 20% cost share. Under this Class Patent Waiver, domestic large businesses may elect title to their subject inventions similar to the right provided to the domestic small businesses, educational institutions, and nonprofits by law. In order to avail itself of the class patent waiver, a domestic large business must agree that any products embodying or produced through the use of a subject invention first created or reduced to practice under this program will be substantially manufactured in the United States. Entities not eligible under the Class Patent Waiver are still able to petition DOE for rights under an Advanced or Identified Patent Waiver as described above.

Nonprofit organizations and small business firms do not need a patent waiver in order to retain title to their subject inventions (see above).