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This part establishes uniform policies for the award and administration of other transaction agreements for research, development, and demonstration projects awarded under the Department of Energy's “Additional Authorities” at section 646(g) of the Department of Energy Organization Act, Public Law 95-91, as amended (42 U.S.C. 7256(g)).
For purposes of this part, An other transaction (OT) agreement means any agreement, including technology investment agreement (TIA) between the Department of Energy and/or the National Nuclear Security Administration and a non-Federal entity for the principal purpose of carrying out an research, development, and demonstration project for which the use of a Federal procurement contract, grant, or cooperative agreement is not feasible or appropriate. The OT agreement must comply with the regulations set forth in this part. Additional requirements for TIAs are set forth in subpart D of this part.
(a)(1) An officer of the Department of Energy (DOE) who has been appointed by the President with the advice and consent of the Senate and who has been delegated the authority from the Secretary must approve the use of other transaction (OT) authority and may perform other functions of the Secretary as set forth under 42 U.S.C. 7256(g). This delegated authority may not be redelegated.
(2) In addition, the cognizant Senior Procurement Executive (SPE), as defined by 41 U.S.C. 1702(c), (or designee) must concur on the award of any OT agreement.
(3) The Agreements Officer (AO) is the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer OT agreements.
(b) Deviation from the requirements in paragraph (a) of this section is not permitted.
(a) Deviation. A deviation from this part is defined as the issuance or use of a policy, procedure, solicitation provision, article, method, or practice of conducting actions of any kind at any stage of the award process or administration period that is inconsistent with this part. Deviations may affect one or more than one other transaction (OT) agreements.
(b) Request for deviation. Requests for deviation(s) shall be submitted by the Agreements Officer, meaning the cognizant warranted Department of Energy or National Nuclear Security Administration official authorized to execute and administer OT agreements, to the cognizant Senior Procurement Executive, as defined by 41 U.S.C. 1702(c), for approval. Requests shall cite the specific section from which it is desired to deviate, shall set forth the nature of the proposed deviation(s), and shall give the reasons for the action requested.
The Nonprocurement debarment and suspension requirements in 2 CFR part 180, as adopted and supplemented by 2 CFR part 901, are applicable to all other transaction agreements.
(a) Cost share is required as follows:
(1) In accordance with 42 U.S.C. 7256(g)(1), to the maximum extent practicable, the awardee must provide at least half of the costs of the project;
(2) In accordance with cost share requirements in section 988 of Energy Policy Act of 2005 (EPAct 2005), Public Law 109-58, as amended (42 U.S.C. 16352), for funded research, development, demonstration, or commercial application activities; and
(3) In accordance with any other applicable statutory cost share requirements.
(b) All awardee cost share or contributions, including cash and third-party in-kind contributions, must meet all of the following criteria:
(1) Are verifiable from the awardee's records;
(2) Are not included as contributions for any other Federal award;
(3) Are necessary and reasonable for accomplishment of the award or project objectives;
(4) Are allowable under the appropriate cost principles;
(5) Are not paid or provided by the Federal Government under another Federal award (Federal funds or property), except where the Federal statute authorizing a program specifically provides that Federal funds or property made available for such program can be applied to cost sharing requirements of other Federal programs or awards;
(6) Are not revenues or royalties from the prospective operation of an activity beyond the time considered in the award;
(7) Are not proceeds from the prospective sale of an asset of an activity;
(8) Are valued:
(i) In accordance with the appropriate cost principles;
(ii) Using the usual accounting policies of the awardee; and
(iii) Not to exceed the fair market value (of donated property, equipment, or other capital assets) or the fair rental charge (of leased land, space, or equipment);
(9) Are provided for in the budget approved by Department of Energy (DOE); and
(10) Conform to other provisions of this part, as applicable.
(c) DOE may reduce or eliminate the cost share requirement imposed by 42 U.S.C. 7256(g)(1) where the Agreements Officer (AO), meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, determines the cost sharing is impracticable in a given case, unless there is a statutory requirement for cost sharing that applies to the particular award. When section 988 of EPAct 2005 applies to an award, the AO must obtain the required approval of the elimination or reduction of the required cost share in accordance with the section 988 of EPAct 2005.
The Agreements Officer, meaning the cognizant warranted Department of Energy or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, may not issue an OT agreement if any awardee, subawardees or participant is to receive fee or profit for the research, development, and demonstration (RD&D) efforts. This requirement extends to all awardees and performers funded under the project, including any subawards for substantive program performance, but it does not preclude participants' or subawardees' payment of reasonable fee or profit when making purchases from suppliers of goods ( e.g., supplies and equipment) or services needed to carry out the RD&D.
(a) Department of Energy (DOE) awards other transaction (OT) agreements using non-procurement, non-Federal financial assistance competitive processes in a merit-based selection process:
(1) In every case where required by statute; and
(2) To the maximum extent feasible, in all other cases. If it is not feasible to use competitive process, the reason for not using a competitive process must be documented by the Agreements Officer (AO), meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer OT agreements.
(b) The AO must document any restrictions on awardee eligibility.
(a) For all other transaction (OT) agreements, trade secrets and commercial or financial information that would be protected from disclosure requirements of the Freedom of Information Act (FOIA) (codified at 5 U.S.C. 552) if obtained from a person other than a Federal agency:
(1) For a period of five years after the date on which the information is developed; or
(2) For up to thirty years after the date on which the information is developed, if the Secretary or delegee of the Secretary determines that the nature of the technology under the transaction, including nuclear technology, could reasonably require an extended period of protection from disclosure to reach commercialization.
(b) As provided in 42 U.S.C. 7256(g)(1) incorporating certain provisions of 10 U.S.C. 4021, disclosure is not required, and may not be compelled, under FOIA during that period if:
(1) A proposer submits the information in a competitive or noncompetitive process that could result in the award of an OT agreement; and
(2) The type of information is among the following types that are exempt:
(i) Proposals, proposal abstracts, and supporting documents; and
(ii) Business plans and technical information submitted on a confidential basis.
(c) If proposers desire to protect business plans and technical information for five years from FOIA disclosure requirements, they must mark them with a legend identifying them as documents submitted on a confidential basis. After the five-year period, information may be protected for longer periods if it meets any of the criteria in 5 U.S.C. 552(b) (as implemented by the DOE in 10 CFR part 1004) for exemption from FOIA disclosure requirements.
This subpart addresses administrative matters that do not impose organization-wide requirements on an awardee's business (financial management, property management, or purchasing) systems. An organization does not have to redesign its business systems to accommodate variations in these requirements. Agreements may differ in the requirements that they specify based on the awardee and the specific circumstances of the research, development, and demonstration project.
(a) Any awardees that currently perform under other expenditure-based Federal procurement contracts or assistance awards are subject to the same standards for financial management systems that apply to those other Federal awards.
(b) Any awardees that do not currently perform under expenditure-based Federal procurement contracts or assistance awards should be allowed to use their existing financial management system as long as the system, at a minimum, effectively controls all project funds, including Federal funds and any required cost share. The system must have complete, accurate, and current records that document the sources of funds and the purposes for which they are disbursed. Awardees also must have procedures for ensuring that project funds are used only for purposes permitted by the agreement.
(a) For-profit awardees. The cost principles in 48 CFR part 31 will generally apply to for-profit awardees.
(b) Other than For-profit awardees. The cost principles in 2 CFR part 200 will generally apply to states, local governments, Indian Tribes, institutes of higher education and other nonprofit entities.
(c) Cost standards. The Agreements Officer, meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, may establish alternative standards in the agreement as long as that alternative provides, as a minimum, that:
(1) Federal funds and funds counted as awardees' cost sharing will be used only for costs that a reasonable and prudent person would incur in carrying out the research, development, and demonstration (RD&D) project contemplated by the agreement.
(2) Costs must be allocated to DOE and other projects in accordance with the relative benefits the projects receive.
(3) Costs allocated to DOE projects must be given consistent treatment with costs allocated to the participants' other RD&D activities ( e.g., activities supported by the participants themselves or by non-Federal sponsors).
(4) The standards must also state that the Federal funds and funds counted as participants' cost sharing will be used only for costs that are consistent with the purposes stated in the governing Congressional authorizations and appropriations.
(a) For-profit awardees. If an expenditure-based other transaction (OT) agreement provides for audits of a for-profit participant, the Agreements Officer, meaning the cognizant warranted Department of Energy or National Nuclear Security Administration official authorized to execute and administer OT agreements, also must specify:
(1) Whether the Defense Contract Auditing Agency or an Independent Public Accountant will perform the required audits.
(2) What the audits are to cover.
(3) Who will pay for the audits.
(4) The auditing standards that the auditor will use.
(5) The available remedies for noncompliance.
(6) Where the auditor is to send audit reports.
(7) The retention period for the auditor's working papers.
(8) Who will have access to the auditor's working papers.
(b) Other than For-profit awardees. Expenditure-based OT agreements are subject to the Single Audit Act (31 U.S.C. 7501-7507). State, local government, Indian Tribes, institutes of higher education, and nonprofit participants are subject to the requirements under that Act. Additional information may be found at 2 CFR part 200, subpart F.
(a) The participant must include the cost of the real property or equipment as part of the proposed cost of the project. The Agreements Officer (AO), meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, must approve the use of project funds (Federal or cost share) to purchase real property or equipment. The AO should specify the use, management, vesting of title, and disposition requirements in the award.
(b) The AO may include an alternative property provision where DOE is authorized to grant title to property or equipment acquired under an OT agreement when determined such a grant is appropriate.
(a) Any awardees that currently perform under other expenditure-based Federal procurement contracts or assistance awards are subject to the same standards for purchasing systems that apply to those other Federal awards.
(b) Any awardees that do not currently perform under expenditure-based Federal procurement contracts or assistance awards should be allowed to use its existing purchasing system as long as the system, at a minimum, is able to flow down the applicable requirements in Federal statutes, Executive orders, or Governmentwide regulations.
Available payment methods include:
(a) Reimbursement. Under this method, participants request reimbursement for costs incurred during a particular time period. The Department of Energy (DOE) reimburses the participant by electronic funds transfer after approval of the request by the Agreements Officer, meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, or designee. This payment method is used for expenditure-based awards.
(b) Advance payments. Under this method, participants request advance payment based upon projections of the cash needs for the project, or for large purchases. Predetermined payment schedules may be used when the timing of the participant's needs to disburse funds can be predicted in advance with sufficient accuracy to ensure the funds are used in accordance with project objectives and schedules.
(c) Payments based on payable milestones. Under this method payments made according to a schedule established for the award that is based on accomplishment of predetermined, well-defined, observable, and verifiable measures of technical progress, outcomes, or other payable milestones. A fixed-support award must use this payment method; however, this does not preclude the use of an initial advance payment if there is no alternative to meeting immediate cash needs. Payments based on payable milestones is the preferred method of payment for an expenditure-based award if well-defined outcomes can be identified.
Department of Energy must approve any changes in project plans that may result in a need for additional Federal funding to be provided to the other transaction agreement.
Pre-award costs may be reimbursed only with the specific approval of the Agreements Officer (AO), meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction agreements. All pre-award costs are incurred at the applicant's and/or awardee's risk. DOE is not obligated to reimburse the costs if, for any reason, the applicant does not receive an award, the award is less than anticipated and inadequate to cover the costs, or the AO did not provide prior approval for the reimbursement of the pre-award costs.
The Agreements Officer, meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, must confer with program officials and assigned intellectual property counsel to develop an overall strategy for intellectual property taking into account inventions and data that may result from the project and future needs the Government may have for rights in them. The strategy should address program mission requirements and any special circumstances that would support modification of standard intellectual property provisions, and should include considerations such as the extent of the awardee's contribution to the development of the technology; expected Government or commercial use of the technology; the need to provide equitable treatment among consortium or team members; and the need for DOE to engage non-traditional Government contractors with unique capabilities.
(a) For provisions regarding data rights for any awardee entity type, the data rights requirements at 2 CFR 910.362(d), Rights in data-general rule, normally apply when the Government is to be provided with unlimited rights in data and should be used as a starting point for such other transaction (OT) agreements. Here, the “Rights in Data—General” provision in appendix A to subpart D of 10 CFR part 910 typically applies. However, if the awardee is to receive special data protection, the data requirements at 2 CFR 910.362(e), Rights in data—programs covered under special protected data statutes normally apply and should be used as a starting point for such OT agreements. Here, the “Rights in Data—Programs Covered Under Special Protected Data Statutes” provision in appendix A to subpart D of 10 CFR part 910 typically applies. Consistent with 42 U.S.C. 7256(g)(5), data protection can be provided typically for a period of up to 5 years but may be extended up to a total of 30 years in particular circumstances.
(b) However, while maintaining compliance with 42 U.S.C. 7256(g), the Agreements Officer, meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer OT agreements, may negotiate data rights requirements that vary from those listed above. Use of or modifications to the standard rights in data provisions must be approved by cognizant DOE intellectual property counsel.
(a) When negotiating rights in inventions, the Agreements Officer (AO), meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, should negotiate terms that represent an appropriate balance between the Government's interests and the awardee's interests. Bayh-Dole (35 U.S.C. 200-212) patent rights provisions implemented via 37 CFR 401.14 as modified by the DOE ( see e.g., U.S. Competitiveness provision and Department of Energy Determination of Exceptional Circumstances Under the Bayh-Dole Act to Further Promote Domestic Manufacture of DOE Science and Energy Technologies) should be used as a starting point for all awardee entity types. However, the AO may negotiate rights that vary from those in modified 37 CFR 401.14. For example, Bayh-Dole March-in-Rights found in modified 37 CFR 401.14 and concerning actions that the Government may take to obtain the right to use subject inventions if the awardee fails to take effective steps to achieve practical application of the subject inventions within a reasonable time, may be modified or removed entirely. Use of or modifications to the standard rights provisions must be approved by cognizant DOE intellectual property counsel.
(b) For subawards, the OT should typically indicate that sub-awardees will get title to inventions they make but alternative terms could be included such as those specifying that sub-awardees' invention rights are to be negotiated between awardee and sub-awardee or some other disposition of invention rights.
(a) Foreign access to technology. Consistent with the objective of enhancing national security and United States competitiveness by increasing the public's reliance on United States commercial technology, the Agreements Officer, meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, must include provisions in an OT agreement that addresses foreign access to technology developed under the OT agreement. Provisions must be included in an OT that provide, at a minimum, that any transfer of the technology must be consistent with the U.S. export control laws, regulations and the Department of Commerce Export Regulation at Chapter VII, Subchapter C, Title 15 of the CFR (15 CFR parts 730-774), as applicable.
(b) DOE research and technology security policies. All DOE research and technology security policies apply to OTs unless the activities being funded are outside the scope of the policies or otherwise exempted from the policies.
(c) U.S. manufacturing and competitiveness. Notice should be included in the OT indicating that products embodying any invention or produced through the use of any invention are subject to the U.S. Competitiveness terms outlined in modified 37 CFR 401.14. These terms may not be modified or waived without approval from cognizant DOE intellectual property counsel.
(a) Awardees must keep records related to the agreement for a period of three years after submission of the final financial status report for an expenditure-based award or final program performance report for a fixed-support award, with the following exceptions:
(1) The awardees must keep records longer than three years after submission of the final financial status report if the records relate to an audit, claim, or dispute that begins but does not reach its conclusion within the 3-year period. In that case, the awardees must keep the records until the matter is resolved and final action taken.
(2) Records for any real property or equipment acquired with project funds under the agreement must be kept for three years after final disposition.
(b) [Reserved]
(a) The Department of Energy (DOE), through the Agreements Officer (AO), meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, has an unfettered right of timely access to any documents, papers, or other records of the awardee which are pertinent to the Federal award, in order to inspect and make copies, audits, examinations, excerpts, and/or transcripts. The right also includes timely and reasonable access to the awardee's personnel for the purpose of interview and discussion related to such documents. The exercise of this authority is at the discretion of the AO.
(b) Inspectors General and the Comptroller General of the United States may have independent legal authority to access to records or personnel related to the Federal award. Consistent with the independent legal authority, recipients should follow the laws and regulations applicable to requests for access to records or personnel from Inspectors General and the Comptroller General of the United States.
(a) Noncompliance. If an awardee materially fails to comply with the articles or terms and conditions of an agreement, whether stated in a Federal statute, regulation, assurance, application, plan, or the notice of award, the Agreements Officer (AO), meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, may take one or more of the following actions, as appropriate:
(1) Temporarily withhold cash payments pending correction of the deficiency by the awardee or more severe enforcement action by the AO.
(2) Disallow or deny both the use of funds and any applicable cost share for all or part of the cost of the activity or action not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the project or program.
(5) Apply other remedies that may be legally available.
(b) Termination. The OT agreement must include an article that indicates that the Government may terminate the agreement in whole or in part if the awardee materially fails to comply with the articles or terms and conditions of an agreement, whether stated in a Federal statute, regulation, assurance, application, plan, or the notice of award fails to comply with the articles and requirements of the award. An agreement may include an article providing for the termination of the agreement, in whole or in part, by mutual agreement or as negotiated by the parties. In the case of proposed partial termination of the agreement, if the remaining portion of the award will not accomplish the purposes for which the agreement was made, the award may be terminated in its entirety.
(1) Unless otherwise negotiated, for terminations of an expenditure-based award, DOE's maximum liability is the lesser of:
(i) DOE's share of allowable costs incurred up to the date of termination, or
(ii) The amount of DOE funds obligated to the award.
(2) Unless otherwise negotiated, for terminations of a fixed-support based award, DOE shall pay the awardee for the last fully completed milestone.
(3) Notwithstanding paragraphs (b)(1) and (2) of this section, if the awardee initiates termination and the award includes milestone payments, the Government has no obligation to pay the awardee beyond the last completed and paid milestone.
(c) Right to appeal. (1) The awardee has the right to appeal to the cognizant Senior Procurement Executive (SPE), as defined by 41 U.S.C. 1702(c), to review only the following actions:
(i) A DOE determination that the awardee has failed to comply with the applicable requirements of the award;
(ii) Termination of an award, in whole or in part, by DOE;
(iii) The application by DOE of an indirect cost rate; and
(iv) DOE disallowance of costs.
(2) In reviewing appeals authorized under paragraph (c)(1) of this section, the SPE is bound by the applicable law, statutes, and rules, including the requirements of this part, and by the articles or terms and conditions of the award.
(3) The decision of the SPE shall be the final decision of DOE.
For purposes of this part, a Technology Investment Agreements (TIA) is a special type of other transaction (OT) agreement that is an assistance instrument used to increase involvement of a for-profit entity or segment of a for-profit entity ( e.g., a division or other business unit) that does a substantial portion of its business in the commercial marketplace in Department of Energy's (DOE) research, development, and demonstration (RD&D) programs. A TIA requires substantial Federal involvement in the technical or management aspects of the project. The goal for using a TIA is to broaden the technology base available to meet DOE mission requirements and foster within the technology base new relationships and practices to advance the national economic and energy security of the United States, to promote scientific and technological innovation in support of that mission, and to ensure the environmental cleanup of the national nuclear weapons complex. A TIA therefore is designed to reduce barriers to participation in RD&D programs by for-profit entities that deal primarily in the commercial marketplace. A TIA allows Agreements Officers (AO), meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer OT agreements, to tailor Government requirements and lower or remove barriers if it can be done with proper stewardship of Federal funds. A TIA may also promote new relationships among performers in the technology base. Collaborations among for-profit entities that deal primarily in the commercial marketplace, firms that regularly perform on the DOE RD&D programs and nonprofit organizations can enhance overall quality and productivity.
(a) A Technology Investment Agreements (TIA) may be awarded to a single entity or multiple entities ( e.g., a teaming arrangement) in prime award-subaward relationships.
(b) A TIA requires one or more for-profit entities, not acting in their capacity as the contractor operating a Federally Funded Research and Development Center (FFRDC), to be involved either in the:
(1) Performance of the research, development, and demonstration (RD&D) project; or
(2) The commercial application of the results of the RD&D project.
(c)(1) In those cases where there is only a non-profit awardee or a consortium of non-profit entities or non-profit entities and FFRDC contractors (as sub-awardees), if and as authorized, the awardees must have at least a tentative agreement with a specific for-profit entity or entities that plan on being involved in the commercial application of the results.
(2) In consultation with legal counsel, the Agreements Officer, meaning the cognizant warranted Department of Energy or National Nuclear Security Administration official authorized to execute and administer OT agreements, must review the agreement between the parties to ensure that the for-profit entity is committed to being involved in the commercial application of the results.
Federal funds provided under another transaction (OT) agreement to for-profit entities must not be used to purchase real property or equipment. If the OT agreement requires the purchase of real property or equipment, the for-profit entity must use its own funds that are separate from the research, development, and demonstration project. The Agreements Officer, meaning the cognizant warranted Department of Energy or National Nuclear Security Administration official authorized to execute and administer OT agreements, should allow the for-profit participant to charge to an expenditure-based award or include in the cost estimate for fixed-support award, only depreciation or use charges for the real property or equipment. Note that the for-profit must charge depreciation consistently with its usual accounting practices and policies. Many for-profits treat depreciation as an indirect cost. Any for-profit that usually charges depreciation indirectly for a particular type of property must not charge depreciation for that property as a direct cost to the OT agreement.
A Technology Investment Agreements is used to carry out cooperative relationships between the Federal Government and the awardee(s) which require substantial involvement of the Government in the technical and/or management aspects of the research, development, and demonstration (RD&D) project.
OTHER TRANSACTION AGREEMENTS (U.S.C.). Retrieved via LawPlayer, https://lawplayer.com/us/act/cfr-title-2-part-930
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