**GENERAL TERMS AND CONDITIONS FOR**

**DOE SBIR AND STTR GRANTS**

**Table of Contents**

**GENERAL TERMS AND CONDITIONS APPLICABLE TO PHASE I AND PHASE II
GRANTS**

**[NO.]{.underline} [TITLE]{.underline}**

1\. EXPLANATION

2\. GRANTEE ADHERENCE TO GRANT TERMS AND CONDITIONS

3\. DEFINITIONS

4\. GRANTEE SUBMISSIONS INCLUDING PRIOR APPROVAL REQUESTS

5\. ALLOWABLE COSTS/APPLICABLE COST PRINCIPLES

6\. AUDITS

7\. PREAWARD COSTS

8\. REPORTING REQUIREMENTS

9\. EXTENSIONS

10\. MAXIMUM DEPARTMENTAL OBLIGATION

11\. PROPERTY

12\. PRINCIPAL INVESTIGATOR OR DESIGNATED KEY PERSONNEL

13\. CHANGES IN OBJECTIVES OR SCOPE

14\. TRANSFER OF SUBSTANTIVE PROGRAMMATIC EFFORT

15\. RESEARCH EFFORT

16\. FOREIGN TRAVEL

17\. CONSULTANT SERVICES

18\. PAPERWORK REDUCTION

19\. GENERALLY APPLICABLE REQUIREMENTS

20\. NONDISCRIMINATION

21\. PUBLIC ACCESS TO INFORMATION

22\. ACKNOWLEDGMENT OF SUPPORT

23\. NATIONAL SECURITY: CLASSIFIABLE RESULTS ORIGINATING UNDER AN AWARD

24\. SUSPENSION AND TERMINATION

25\. INTEREST

26\. PATENT RIGHTS

27\. RIGHTS IN DATA -- SBIR/STTR PROGRAM

28\. RIGHTS TO APPLICATION DATA

29\. OTHER RESEARCH SUPPORT

i

**GENERAL TERMS AND CONDITIONS FOR**

**DOE SBIR AND STTR GRANTS**

**Table of Contents**

**GENERAL TERMS AND CONDITIONS APPLICABLE TO PHASE I AND PHASE II
GRANTS**

**[NO.]{.underline} [TITLE]{.underline}**

30\. NOTIFICATION OF DELAY

31\. FEE

32\. PAYMENT

**GENERAL TERMS AND CONDITIONS APPLICABLE TO PHASE I ONLY**

1\. FIXED OBLIGATION

2\. PREAWARD COSTS

**GENERAL TERMS AND CONDITIONS APPLICABLE TO PHASE II ONLY**

1\. REPORTING NON‑FEDERAL SUPPORT

ii

**GENERAL TERMS AND CONDITIONS APPLICABLE TO PHASE I AND PHASE II
GRANTS**

**1. EXPLANATION**.

a\. These general terms and conditions do not restate all the provisions
of applicable statutes and regulations, nor do they represent an
exhaustive listing of all requirements applicable to this grant. Rather,
they highlight and are consistent with those requirements which are
especially pertinent to research grants in general. They are emphasized
by inclusion here because: (1) they are invoked with high frequency; (2)
their violation is a matter of especially serious concern (e.g., use of
human subjects); (3) restating them in the research context will allow
them to be more easily understood by the research community.

b\. In addition to these general terms and conditions, the grantee must
comply with all governing requirements, including those identified in
block 18 of DOE F 4600.1, "Notice of Financial Assistance Award," (NFAA)
and those included in the "Special Terms and Conditions" attached to
this grant award.

**2. GRANTEE ADHERENCE TO GRANT TERMS AND CONDITIONS.**

a\. The grantee's signature on the NFAA signifies the grantee's
agreement to all terms and conditions of the award. Should the grantee
believe modification of any of the terms and conditions of this award is
necessary, an authorized official of the grantee organization or, in the
case of an individual, the grantee, must submit a written request on its
own behalf or on behalf of any subgrant recipient or applicant for prior
approval of the Contracting Officer named in block 21 of the NFAA.

b\. Following this procedure is very important because many of the terms
and conditions of the grant are required by statute and must be enforced
by the Department of Energy.

**3. DEFINITIONS.**

a\. [Contracting Officer]{.underline}. This may be any Contracting
Officer of the awarding office. The terms, "the Contracting Officer
named on the face page of this award," "the Contracting Office," and "a
DOE Contracting Officer" refer to this person as well. The address to be
used in corresponding with the Contracting Officer is that appearing in
block 12 of the NFAA.

b\. [Grant Administrator]{.underline}. This individual is named in block
12 of the NFAA.

c\. [Principal Investigator]{.underline}. As used herein, the scientist
or other programmatic expert named in block 8 of the NFAA, designated by
the grantee organization to direct the scientific/technical efforts
being supported.

d\. [Prior Approval]{.underline}. A written or
electronically-transmitted statement from the Contracting Officer that a
cost may be incurred or an action may be taken. The approval may take
the form of a letter, e-mail message, or an amendment to the grant. If
actions or costs requiring prior approval are specified in the
application and are not expressly disapproved by DOE in the attached
"Special Terms and Conditions," the award of the grant constitutes such
prior approval.

e\. [Program Manager]{.underline}. The DOE Headquarters line manager in
charge of the SBIR/STTR program. The Program Manager's address is:

> U.S. Department of Energy
>
> SC-32 / Germantown Building
>
> 1000 Independence Avenue, SW
>
> Washington, DC 20585-1290

**4. GRANTEE SUBMISSIONS INCLUDING PRIOR APPROVAL REQUESTS.**

All grantee submissions (applications, reports, and requests, including
prior approvals) are to be addressed to the grant administrator except
as otherwise specified in writing by an authorized DOE official as
determined by the Contracting Officer.

All requests for prior approval must be signed by an individual who is
authorized to act for the grantee organization. The signature of the
principal investigator (unless also a corporate officer or otherwise
authorized) is insufficient to obtain action on a prior approval
request, although countersignature by the principal investigator is not
discouraged. Requests for budget revisions shall be made using the same
budget format as used in applying for the grant and must be supported by
a narrative justification. Other prior approval requests may be made by
letter.

**5. ALLOWABLE COSTS/APPLICABLE COST PRINCIPLES.**

a\. In accordance with the applicable cost principles cited below, the
allowable costs of this grant shall consist of the actual allowable
direct costs incident to performance of the project, plus the allocable
portion of the allowable indirect costs, if any, of the organization,
less applicable credits. The allowable costs shall not exceed the amount
shown on the face page of this award for the total approved budget for
the current budget period (line 16.a.(6) of the NFAA).

b\. The allowability of costs for work performed under this grant and
any subsequent subaward will be determined in accordance with the
Federal cost principles applicable to the grantee or subrecipient in
effect

on the date of award or the date of the subaward, except as modified by
other provisions of this grant or the subaward. The grantee or
subrecipient shall specify in any cost‑reimbursement contract under the
grant or subaward the applicable cost principles cited in this provision
that apply to the contractor.

c\. The Federal cost principles applicable to specific types of
grantees, subrecipients, and contractors under grants and subawards are
as follows:

\(1\) [Institutions of Higher Education]{.underline}. Office of
Management and Budget (OMB) Circular A‑21, "Cost Principles For
Educational Institutions," is applicable to both public and private
colleges and universities.

\(2\) [State and Local Governments and Indian Tribal
Governments]{.underline}. OMB Circular A‑87, "Cost Principles for State
and Local Governments," is applicable to State, local, and Indian tribal
governments.

\(3\) [Hospitals]{.underline}. Title 45 CFR Part 74, Appendix E,
"Principles for Determining Costs Applicable to Research and Development
under Grants and Contracts with Hospitals, "applies to nonprofit and
for‑profit hospitals.

\(4\) [Other Nonprofit Organizations and Individuals]{.underline}. OMB
Circular A‑122, "Cost Principles for Nonprofit Organizations," applies
to nonprofit organizations and individuals, except for those
specifically exempted by the terms of the circular or those nonprofit
organizations and individuals covered by the cost principles cited
elsewhere in this term.

(5) [Commercial Firms and Certain Nonprofit Organizations]{.underline}.
    Title 48 CFR Subpart 31.2, "Contracts

with Commercial Organizations," as supplemented by 48 CFR Subpart 931.2,
applies to those nonprofit organizations not covered by OMB Circular
A‑122, and to all commercial organizations.

**6. AUDITS.**

Recipients that expend \$500,000 or more in a year under Federal awards
are subject to the audit requirements of 10 CFR 600.316, Audits, and are
responsible for compliance with those requirements. An electronic
version of 10 CFR 600 may be accessed at
<http://www.gpoaccess.gov/ecfr/>. (Once at the website, select \"Title
10 - Energy\" at the \"Browse\" dropdown menu, \"500-699\" under
\"Browse Parts\", and \"600\" under \"Subchapter H\--Assistance
Regulations\".)

c.  
d.  
e.  

**7. PREAWARD COSTS.**

Recipients may incur preaward costs up to ninety (90) days prior to the
effective date of an award. Preaward costs for periods preceding 90 days
prior to the effective date of the award are allowable only if approved
in writing, prior to incurrence, by a DOE Contracting Officer. Any
preaward expenditures (including those made after DOE approval) are made
at the recipient's risk and do not impose any obligation on the DOE.

**8. REPORTING REQUIREMENTS.**

a\. Attached to the grant award is a completed DOE F 4600.2, "Federal
Assistance Reporting Checklist," which lists the reports required under
the grant. (See 10 CFR 600.341 for general reporting requirements.)

b\. Phase I grantees applying for Phase II grant support shall summarize
their Phase I results to date in their application. This summary shall
be in lieu of a separate, final, Phase I performance report only for
grantees applying for Phase II. The depth of detail of the summary
should be sufficient to allow Phase II grant application reviewers to
assess the extent to which the Phase I objectives were achieved. All
other Phase I and Phase II grantees shall prepare a final technical
report in accordance with paragraph a., above, upon completion or
termination of the project. The final technical report shall be prepared
in accordance with the applicable program rule cited on the face page of
the award or, in the absence of such program rule coverage, in
accordance with the technical reporting format specified in 10 CFR
600.341.

c\. Instructions concerning reports to be submitted in conjunction with
this award will be provided to the grantee at the time of the award.

**9. EXTENSIONS.**

Grantee requests for extensions of time on the grant must be submitted
for approval to the Contracting Officer prior to the expiration date of
the budget period to which the extension is to apply, in accordance with
10 CFR 600.381.

**10. MAXIMUM DEPARTMENTAL OBLIGATION.**

DOE\'s maximum obligation to the recipient is the amount shown in block
16.b.(3) of the NFAA. DOE shall not be obligated to make any additional,
supplemental, continuation, renewal or other award for the same or any
other purpose.

**11. PROPERTY.**

a\. [Real and Tangible Personal Property.]{.underline}

\(1\) No real property may be acquired under this award.

\(2\) Equipment and supplies acquired by the grantee with Federal funds:

[Equipment]{.underline}

> The grantee shall be accountable for equipment under the grant with a
> unit acquisition cost of \$5,000 or more, in accordance with 10 CFR
> 600.320 -- 10 CFR 600.323.

[Supplies]{.underline}

> Any unused supplies that exceed an aggregate fair market value of
> \$5,000 must be accounted for during closeout of the award. The
> grantee may retain these supplies under the following conditions:

\- Supplies are needed for other Federally sponsored projects or
programs.

> \- The grantee shall compensate DOE for its share for those supplies
> that are sold or used on non-Federally sponsored activities.

\(3\) Title to equipment purchased under this award lies with the
government. It may be transferred to the grantee where such transfer
would be more cost effective than recovery of the property by the
government.

\(4\) All grantees shall follow property management policies and
procedures that provide for adequate control of the acquisition and use
of the assets acquired under the grant.

b\. [Intangible Property]{.underline}. (See Terms 26 through 28.)

**12. PRINCIPAL INVESTIGATOR OR DESIGNATED KEY** **PERSONNEL**.

a.  The principal investigator is named in Block 8 of the NFAA. Other
    key personnel, if any, are listed

in the attached "Special Terms and Conditions."

b\. Since the DOE decision to fund a project is based, to a significant
extent, on the qualifications and level of participation of the
principal investigator, a change of principal investigator or of the
level of effort of the principal investigator is considered a change in
the approved project. There shall be only one principal investigator at
any one time during the performance of this grant. Departmental approval
must be obtained prior to any change of the principal investigator or,
in certain cases, others who have been identified as key personnel in
the "Special Terms and Conditions" of the grant. In addition, any
absence of the principal investigator or plans for the principal
investigator to become substantially less involved in the project than
was indicated in the approved grant application requires Departmental
approval. The grantee is encouraged to contact DOE immediately upon
becoming aware that any of these changes are likely to be proposed, but
in any event must do so and receive Departmental approval before
effecting any such change.

c\. The recipient represents that it is the primary source of employment
of the principal investigator at the time of the award of this grant,
and agrees it will continue to be such during the project period of the
grant. Additionally, the principal investigator is expected to devote a
considerable part of his or her time to the project, in no case less
than 5 hours (average) per week, for the duration of the project.

"Primary employment" means that more than one‑half of the principal
investigator's time, but no less than 20 hours (average) per week, is
spent in the employment of the small business and that the principal
investigator is not employed full time by any other entity.

**13. CHANGES IN OBJECTIVES OR SCOPE.**

Any change in the objective or scope of a grant-supported project
requires the prior approval of DOE. This includes changes in the
phenomenon or phenomena under study and in the methodologies or
experiments if they are a specific objective of the research work as
stated in the application approved by DOE.

**14. TRANSFER OF SUBSTANTIVE PROGRAMMATIC EFFORT.**

None of the substantive effort of the project may be transferred by
contract or subgrant to another organization or person without the prior
approval of DOE. This provision does not apply to the procurement of
equipment, supplies, materials, or general support services; these
services may, however, be subject to other prior approval requirements
(e.g., those found in the applicable cost principles or procurement
standards).

**15.** **RESEARCH EFFORT.**

For both SBIR and STTR, there are requirements on the amount of the
funded research or analytical effort that must be performed by the small
business. The funded research or analytical effort is defined as the
total requested funding minus the cost of any purchased or leased
equipment, materials, or supplies (whether purchased by the grantee or a
subcontractor). These requirements are:

a.  **SBIR**:

```{=html}
<!-- -->
```
(1) Phase I: A minimum of two-thirds of the funded research or
    analytical effort must be

performed by the grantee; a maximum of one-third of the effort may be
performed by consultants or subcontractors.

(2) Phase II: A minimum of one-half of the research and analytical
    effort of Phase II must be

performed by the grantee; up to one-half of the research or analytical
effort may be performed by consultants or subcontractors.

b.  **STTR:**

```{=html}
<!-- -->
```
(1) Phase I: A minimum of 40% of the work must be performed by the small
    business and at

least 30% of the work must be performed by the non-profit research
institution partner. Such institutions include Federally funded research
and development centers, universities, teaching hospitals, and other
non-profits. A minimum of 40% of the funding, excluding any purchased or
leased equipment, materials, and supplies, must be allocated to the
small business; a minimum of 30% of the funding, excluding any purchased
or leased equipment, materials, and supplies, must be allocated to the
research institution.

(2) Phase II: The same as STTR Phase I.

**16. FOREIGN TRAVEL.**

Foreign travel is not normally an appropriate expense for SBIR and STTR
projects.

**17. CONSULTANT SERVICES.**

Costs of consultant services are allowable in accordance with the
applicable cost principles. These principles include the requirement
that the consultant not be an employee of the grantee organization; the
one exception to this requirement applies to colleges and universities.

**18. PAPERWORK REDUCTION.**

a\. The award is subject to the requirements of the Paperwork Reduction
Act of 1980 as implemented by the Office of Management and Budget rules,
"Controlling Paperwork Burdens on the Public\" published as 5 CFR 1320
(48 FR 13666, 3-31-83). These requirements apply if the grantee will
collect information from ten or more respondents at the specific request
of DOE, or if the award requires specific DOE approval of the
information collection or the collection procedures.

b\. The grantee shall submit any proposed sponsored information
collection under paragraph a. of this term to the Contracting Officer
named on the NFAA. The proposal shall be submitted at least 120 days
prior to the intended date of information collection. DOE will seek the
requisite approval from the Office of Management and Budget and will
promptly notify the grantee of the disposition of the request.

**19. GENERALLY APPLICABLE REQUIREMENTS.**

In accordance with 10 CFR 600.12, this grant is subject to a number of
statutory and other generally applicable requirements. Those
requirements most pertinent to research projects are highlighted below:

a\. [Research Involving Vertebrate Animals]{.underline}. Any recipient
performing research on vertebrate animals shall comply with the
Laboratory Animal Welfare Act of 1966, as amended (7 U.S.C. 2131 et
seq.), and the regulations promulgated thereunder by the Secretary of
Agriculture (9 CFR) pertaining to the care, handling, and treatment of
vertebrate animals held or used for research, teaching, or other
activities supported by Federal awards. The recipient is expected to
ensure that the guidelines described in Department of Health and Human
Services (DHHS) Publication No. (NIH) 85-23, "Guide for the Care and Use
of Laboratory Animals," are followed and to comply with the U.S.
Government Principles for the Utilization and Care of Vertebrate Animals
Used in Testing, Research and Training (included as an Appendix to the
NIH Guide).

b\. [Research Involving Recombinant DNA Molecules]{.underline}. Any
grantee performing research involving recombinant DNA molecules and/or
organisms and viruses containing recombinant DNA molecules agrees by
acceptance of this grant to comply with the National Institutes of
Health "Guidelines for Research Involving Recombinant DNA Molecules,"
6‑83 (48 FR 24556) or such later revision to those guidelines as may be
published in the Federal Register.

c\. [Use of Human Subjects in Research. Development. and]{.underline}
[Related Activities.]{.underline} Any DOE grantee performing research,
development, or related activities involving human subjects must comply
with regulations found at 10 CFR Part 745, "Protection of Human
Subjects," and any additional provisions which may be included in the
"Special Terms and Conditions" of the grant. Such provisions are
intended to safeguard the rights and welfare of human subjects at risk
of possible physical, psychological, or social injury as a consequence
of their participation.

**20. NONDISCRIMINATION.**

The grant is subject to the provisions of 10 CFR 1040, Nondiscrimination
in Federally Assisted Programs.

**21. PUBLIC ACCESS TO INFORMATION.**

a\. The Freedom of Information Act, as amended, and the DOE implementing
regulations (10 CFR 1004), require DOE to release certain documents and
records regarding grants to any person who provides a written request.
The intended use of the information will not be a criterion for release.
These requirements apply to information held by DOE and do not require
grantees, their subgrantees, or their contractors to permit public
access to their records.

b\. Records maintained by DOE with respect to grants are subject to the
provisions of the Privacy Act and the DOE implementing regulations (10
CFR 1008) if those records constitute a "system of records" as defined
in the Act and the regulations. Generally, records maintained by
grantees, their subgrantees, or their contractors are not subject to
these requirements.

**22. ACKNOWLEDGMENT OF SUPPORT.**

Publication of the results of the grant is encouraged subject to any
applicable restrictions in 10 CFR 600.325, Intellectual Property. Any
article published shall include an acknowledgment that the research was
supported, in whole or in part, by a DOE grant (with the grant number)
and a statement that such support does not constitute an endorsement by
DOE of the views expressed in the article.

**23. NATIONAL SECURITY: CLASSIFIABLE RESULTS ORIGINATING UNDER AN
AWARD**

a\. The awardee will not be granted access to classified information. In
addition, DOE does not expect that this research will generate
information that would require classification. Under certain
circumstances, however, a classification review of information
originated under the award may be required.

b\. Executive Order 12958 (60 Fed. Reg. 19,825 (1995)) states that basic
scientific research information not clearly related to the national
security may not be classified. Nevertheless, some information
concerning (among other things) scientific, technological, or economic
matters relating to national security or cryptology may require
classification. If an awardee originates information during the course
of this award that it believes requires classification under this
Executive Order, the awardee must promptly:

## 

## (1) Notify the Contracting Officer and the DOE Project Officer; 

## (2) Submit the information by registered mail directly to the Director, Office of Classification and Information Control, Document Reviews Division; S0-10.23 / Germantown Building; U.S. Department of Energy; 1000 Independence Ave., SW; Washington DC, 20585-1290, for classification review. 

## (3) Restrict access to the information to the maximum extent possible until the awardee is 

## informed that the information is not classified, but no longer than thirty (30) days after receipt by the Director, Office of Nuclear and National Security Information. 

c\. If the awardee originates information concerning the production or
utilization of special nuclear material (i.e., plutonium, uranium
enriched in the isotope 233 or 235, and any other material so determined
under section 151 of the Atomic Energy Act) or atomic energy, the
awardee must:

# (1) Notify the Contracting Officer and the DOE Project Officer.

# (2) Submit the information by registered mail directly to the Director, Office of Classification and Information Control, Document Reviews Division; S0-10.23 / Germantown Building; U.S. Department of Energy; 1000 Independence Ave., SW; Washington DC, 20585-1290 for classification review within 180 days of the date the awardee first discovers or first has reason to believe that the information is useful in such production or utilization. 

# (3) Restrict access to the information to the maximum extent possible until the awardee is 

# informed that the information is not classified, but no longer than 90 days after receipt by the Director, Office of Nuclear and National Security Information.

d\. If DOE determines any of the information requires classification,
the awardee agrees that the Government may terminate the award by mutual
agreement in accordance with 10 CFR 600.25(d). If the award is
terminated, all material deemed to be classified must be forwarded to
the DOE, in a manner specified by DOE.

e\. If DOE does not respond within the specified time periods, the
awardee is under no further obligation to restrict access to the
information.

**24. SUSPENSION AND TERMINATION.**

a\. Under the provisions of 10 CFR 600.25 and 600.351, DOE may suspend
or terminate the award, in whole or in part (1) when the grantee has
materially failed to comply with the terms and conditions of the award
or (2) for any reason by mutual agreement between DOE and the grantee
upon the request of either party.

b\. Normally, DOE action to suspend or terminate an award for cause will
be taken only after DOE has informed the grantee of any deficiency on
its part and given the grantee an opportunity to correct it. However,
DOE may immediately suspend or terminate the award without prior notice
when it believes such action is necessary to protect the interests of
the Government.

c\. No costs incurred during a suspension period or after the effective
date of a termination will be allowable, except those costs which, in
the opinion of DOE, the grantee could not reasonably avoid or eliminate
or which were otherwise authorized by the suspension or termination
notice, provided such costs would otherwise be allowable under the terms
of the award and the applicable Federal cost principles.

d\. Final allowable costs under a termination settlement shall be in
accordance with the terms of the award, including this term, and the
appropriate Federal cost principles. In no event will the total of
payments under a terminated award exceed the amount obligated by DOE or
the DOE pro rata share when cost‑sharing was required, whichever is
less.

e\. Within 90 days after the termination of the grant, the grantee shall
submit any final financial, performance, and other reports required by
the terms and conditions of the award. (See 10 CFR 600.341.)

f\. A notice of termination other than by mutual agreement may be
subject to review according to the provisions of 10 CFR 600.22, Disputes
and appeals.

**25. INTEREST.**

The requirements of this paragraph are not applicable when the
Contracting Officer affirmatively determines that its inclusion would
not be in the best interests of the Government.

a\. Notwithstanding any other term or condition of the grant, all
amounts that become payable by the recipient to the Government under the
grant shall bear simple interest from the date due until paid unless
paid within 30 days of becoming due. The interest rate shall be the
interest rate established by the Secretary of the Treasury (Secretary)
as provided in Section 11 of the Debt Collection Act of 1982 (31 U.S.C.
3717), 10 CFR 600.363, which is applicable to the period in which the
amount becomes due, as provided in paragraph b. below, and then at the
rate applicable for each 3‑month period as fixed by the Secretary until
the amount is paid.

b\. Amounts shall be due at the earliest of the following dates:

\(1\) The date fixed under the grant.

\(2\) The date of the first written demand for payment consistent with
the grant, including any demand resulting from a termination.

\(3\) The date the Government transmits to the recipient a proposed
agreement to confirm completed negotiations establishing the amount of
debt.

c\. The interest charge made under this provision may be reduced in
accordance with the procedures prescribed in 4 CFR 102.13 or in
accordance with agency regulations in effect on the date of original
award of the grant.

**26. PATENT RIGHTS**.

a\. [Definitions]{.underline}.

\(1\) "Invention" means any invention or discovery which is or may be
patentable or otherwise protectable under Title 35 of the United States
Code (U.S.C.) or any novel variety of plant which is or may be protected
under the Plant Variety Protection Act (7 U.S.C. 2321, et seq.).

\(2\) "Subject Invention" means any invention of the grantee conceived
or first actually reduced to practice in the performance of work under
this grant, provided that in the case of a variety of plant the date of
determination (as defined in section 44(d) of the Plant Variety
Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of
grant performance.

\(3\) "Practical Application" means to manufacture in the case of a
composition or product, to practice in the case of a process or method,
or to operate in the case of a machine or system; and, in each case,
under such conditions as to establish that the invention is utilized and
that its benefits are, to the extent permitted by law or Government
regulations, available to the public on reasonable terms.

\(4\) "Made" when used in relation to any invention means the conception
or first actual reduction to practice of such invention.

\(5\) "Small Business Firm" means a small business concern as defined in
Section 2 of Pub. L. 85-536 (15 U.S.C. 632) and implementing regulations
of the Administrator of the Small Business Administration. For the
purpose of this clause, the size standard for small business concerns
involved in Government procurement and subcontracting, at 13 CFR 121.3‑8
and 13 CFR 121.3‑12, respectively, will be used.

\(6\) "Nonprofit Organization" means a university or other institution
of higher education or an organization of the type described in section
501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c) and
exempt from taxation under Section 501(a) of the Internal Revenue Code
(26 U.S.C. 501(a)) or any nonprofit scientific or educational
organization qualified under a state nonprofit organization statute.

\(7\) "Patent Counsel" means the Department of Energy (DOE) Patent
Counsel assisting the DOE contracting activity.

b\. [Allocation of Principal Rights]{.underline}.

\(1\) The grantee may retain the entire right, title and interest
throughout the world to each subject invention subject to the provisions
of this clause and 35 U.S.C. 203. With respect to any subject invention
in which the grantee retains title, the Federal Government shall have a
nonexclusive, nontransferable, irrevocable, paid‑up license to practice
or have practiced for or on behalf of the United States the subject
invention throughout the world.

\(2\) (Reserved)

c\. [Invention Disclosure, Election of Title and Filing of Patent
Application By Grantee]{.underline}.

\(1\) The grantee will disclose each subject invention to the Patent
Counsel within two months after the inventor discloses it in writing to
grantee personnel responsible for patent matters. The disclosure to the
Patent Counsel shall be in the form of a written report and shall
identify the grant under which the invention was made and the
inventor(s). It shall be sufficiently complete in technical detail to
convey a clear understanding, to the extent known at the time of the
disclosure, of the nature, purpose, operation, and the physical,
chemical, biological or electrical characteristics of the invention. The
disclosure shall also identify any publication, on sale or public use of
the invention and whether a manuscript describing the invention has been
submitted for publication and, if so, whether it has been accepted for
publication at the time of disclosure. In addition, after disclosure to
the Patent Counsel, the grantee will promptly notify the Patent Counsel
of the acceptance of any manuscript describing the invention for
publication or of any on sale or public use planned by the grantee.

\(2\) The grantee will elect in writing whether or not to retain title
to any such invention by notifying the Patent Counsel within two years
of disclosure to the Patent Counsel. However, in any case where
publication, on sale or public use has initiated the one‑year statutory
period wherein valid patent protection can still be obtained in the
United States, the period for election of title may be shortened by
Patent Counsel to a date that is no more than sixty days prior to the
end of the statutory period.

\(3\) The grantee will file its initial patent application on a subject
invention to which it elects to retain title within one year after
election of title or, if earlier, prior to the end of any statutory
period wherein valid patent protection can be obtained in the United
States after a publication, on sale, or public use. The grantee will
file patent applications in additional countries or international patent
offices within either ten months of the corresponding initial patent
application or six months from the date permission is granted by the
Commissioner of Patents and Trademarks to file foreign patent
applications where such filing has been prohibited by a Secretary Order.

\(4\) Requests for extension of the time for disclosure to the Patent
Counsel, election, and filing, under subparagraphs (1), (2), and (3)
may, at the discretion of the Patent Counsel, be granted.

d\. [Conditions When the Government May Obtain Title.]{.underline}

The grantee will convey to the DOE, upon written request, title to any
subject invention:

\(1\) If the grantee fails to disclose or elect title to the subject
invention within the times specified in c. above, or elects not to
retain title; provided that the DOE may only request title within 60
days after learning of the failure of the grantee to disclose or elect
within the specified times;

\(2\) In those countries in which the grantee fails to file patent
applications within the times specified in c. above, provided, however,
that if the grantee has filed a patent application in a country after
the time specified in c. above prior to its receipt of the written
request of the Patent Counsel, the grantee shall continue to retain
title in that country; or

\(3\) In any country in which the grantee decides not to continue the
prosecution of any application for, to pay the maintenance fees on, or
defend in a reexamination or opposition proceeding, a patent on a
subject invention.

e\. [Minimum Rights to Grantee and Protection of the Grantee Right to
File]{.underline}.

\(1\) The grantee will retain a nonexclusive, royalty‑free license
throughout the world in each subject invention to which the Government
obtains title except if the grantee fails to disclose the subject
invention within the times specified in c. above. The grantee's license
extends to its domestic subsidiaries and affiliates, if any, within the
corporate structure of which the grantee is a part and includes the
right to grant sublicenses of the same scope to the extent the grantee
was legally obligated to do so at the time the grant was awarded. The
license is transferable only with the approval of DOE except when
transferred to the successor of the part of the grantee's business to
which the invention pertains.

\(2\) The grantee\'s domestic license may be revoked or modified by DOE
to the extent necessary to achieve expeditious practical application of
the subject invention pursuant to an application for an exclusive
license submitted in accordance with applicable provisions at 37 CFR 404
and 10 CFR 781. This license will not be revoked in that field of use or
the geographical areas in which the grantee has achieved practical
application and continues to make the benefits of the invention
reasonably accessible to the public. The license in any foreign country
may be revoked or modified at the discretion of DOE to the extent the
grantee, its licensees, or its domestic subsidiaries or affiliates have
failed to achieve practical application in that foreign country.

\(3\) Before revocation or modification of the license, DOE will furnish
the grantee a written notice of its intention to revoke or modify the
license, and the grantee will be allowed thirty days (or such other time
as may be authorized by DOE for good cause shown by the grantee) after
the notice to show cause why the license should not be revoked or
modified. The grantee has the right to appeal, in accordance with 37 CFR
404 and 10 CFR Part 781, any decision concerning the revocation or
modification of its license.

f\. [Grantee Action to Protect the Government's Interest]{.underline}.

\(1\) The grantee agrees to execute or to have executed and promptly
deliver to the Patent Counsel all instruments necessary to:

\(a\) Establish or confirm the rights the Government has throughout the
world in those subject inventions to which the grantee elects to retain
title, and

\(b\) Convey title to DOE when requested under d. above and to enable
the Government to obtain patent protection throughout the work in that
subject invention.

\(2\) The grantee agrees to require, by written agreement, its
employees, other than clerical and nonclerical employees, to disclose
promptly in writing to personnel identified as responsible for the
administration of patent matters and in a format suggested by the
grantee each subject invention made under this grant in order that the
grantee can comply with the disclosure provisions of c. above and to
execute all papers necessary to file patent applications on subject
inventions and to establish the Government's rights in the subject
inventions. The disclosure format should require, as a minimum, the
information required by c.(1) above. The grantee shall instruct such
employees through the employee agreements or other suitable educational
programs on the importance of reporting inventions in sufficient time to
permit the filing of patent applications prior to United States or
foreign statutory bars.

\(3\) The grantee will notify the Patent Counsel of any decision not to
continue prosecution of a patent application, pay maintenance fees, or
defend in reexamination or opposition proceeding on a patent, in any
country, not less than thirty days before the expiration of the response
period required by the relevant patent office.

\(4\) The grantee agrees to include, within the specification of any
United States patent applications and any patent issuing thereon
covering a subject invention, the following statement "This invention
was made with Government support under (identify the grant) awarded by
the Department of Energy. The Government has certain rights in this
invention."

\(5\) The grantee agrees to:

\(a\) Upon request, provide a report prior to the closeout of the grant
listing all subject inventions or stating that there were none;

\(b\) Provide, upon request, a copy of the patent application, filing
date, serial number and title, patent number and issue date for any
subject invention in any country in which the grantee has applied for a
patent; and

\(c\) Provide upon request, but not more than annually, listings of all
subject inventions which were disclosed to DOE during the applicable
reporting period.

g\. [Contracts and Subgrants under Grants]{.underline}.

\(1\) The grantee will include this clause, suitably modified to
identify the parties in all contracts and subgrants under grants
regardless of tier for experimental, developmental or research work to
be performed by a small business firm or a domestic nonprofit
organization. The lower tier recipient will retain all rights provided
for the grantee in this clause, and the grantee will not as part of the
consideration for awarding the contract or subgrant obtain rights in the
lower tier recipient's subject inventions.

\(2\) The grantee will include in all other contracts or subgrants,
regardless of tier for experimental, developmental, demonstration, or
research work this patent rights clause as appropriate, modified to
identify the parties.

\(3\) In the case of subcontracts, at any tier, DOE, subcontractor, and
the Contractor agree that the mutual obligations of the parties created
by this clause constitute a contract between the subcontractor and DOE
with respect to the matters covered by the clause; provided, however,
that nothing in this paragraph is intended to confer any jurisdiction
under the Contract Disputes Act in connection with proceedings under
paragraph j. of this clause.

h\. [Reporting on Utilization of Subject Inventions]{.underline}.

The grantee agrees to submit on request periodic reports no more
frequently than annually on the utilization of a subject invention or on
efforts at obtaining such utilization that are being made by the grantee
or its licensees or assignees. Such reports shall include information
regarding the status of development, date of first commercial sale or
use, gross royalties received by the grantee, and such other date and
information as DOE may reasonably specify. The grantee also agrees to
provide additional reports as may be requested by DOE in connection with
any march‑in‑proceeding undertaken by DOE in accordance with paragraph
j. of this clause. As required by 35 U.S.C. 202(c)(5), DOE agrees it
will not disclose such information to persons outside the Government
without permission of the grantee.

i\. [Preference for United States Industry]{.underline}.

Notwithstanding any other provision of this term, the grantee agrees
that neither it nor any assignee will grant to any person the exclusive
right to use or sell any subject inventions in the United States unless
such person agrees that any products embodying the subject invention or
produced through the use of the subject invention will be manufactured
substantially in the United States. However, in individual cases, the
requirement for such an agreement may be waived by DOE upon a showing by
the grantee or its assignee that reasonable but unsuccessful efforts
have been made to grant licenses on similar terms to potential licensees
that would be likely to manufacture substantially in the United States
or that under the circumstances domestic manufacture is not commercially
feasible.

j\. [March‑in‑rights]{.underline}.

The grantee agrees that with respect to any subject invention in which
it has acquired title, DOE has the right in accordance with the
procedures in 37 CFR 401.6 and any supplemental regulations of DOE to
require the grantee, an assignee or exclusive licensee of a subject
invention to grant a nonexclusive, partially exclusive, or exclusive
license in any field of use to a responsible applicant or applicants,
upon terms that are reasonable under the circumstances, and if the
grantee, assignee, or exclusive licensee refuses such a request, DOE has
the right to grant such a license itself if DOE determines that:

\(1\) Such action is necessary because the grantee or assignee has not
taken, or is not expected to take within a reasonable time, effective
steps to achieve practical application of the subject invention in such
field of use;

\(2\) Such action is necessary to alleviate health or safety needs which
are not reasonably satisfied by the grantee, assignee, or their
licensees;

\(3\) Such action is necessary to meet requirements for public use
specified by Federal regulations and such requirements are not
reasonably satisfied by the grantee, assignee, or licensee; or

\(4\) Such action is necessary because the agreement required by
paragraph I. of this term has not been obtained or waived or because a
licensee of the exclusive right to use or sell any subject invention in
the United States is in breach of such agreement.

k\. [Special Provisions for Grants with Nonprofit
Organizations]{.underline}.

If the grantee is a nonprofit organization it agrees that:

\(1\) Rights to a subject invention in the United States may not be
assigned without the approval of DOE, except where such assignment is
made to an organization which has as one of its primary functions the
management of inventions, provided that such assignee will be subject to
the same provisions as the grantee.

\(2\) The grantee will share royalties collected on a subject invention
with the inventor, including Federal employee co‑inventors (when DOE
deems it appropriate) when the subject invention is assigned in
accordance with 35 U.S.C. 202(e) and 37 CFR 401.10.

\(3\) The balance of any royalties or income earned by the grantee with
respect to subject inventions, after payment of expenses (including
payments to inventors) incidental to the administration of subject
inventions, will be utilized for the support of scientific research or
education, and

\(4\) It will make efforts that are reasonable under the circumstances
to attract licensees of subject inventions that are small business firms
and that it will give a preference to a small business firm when
licensing a subject invention if the grantee determines that the small
business firm has a plan or proposal for marketing the invention which,
if executed, is equally as likely to bring the invention to practical
application as any plans or proposals from applicants that are not small
business firms; provided that the grantee is also satisfied that the
small business firm has the capability and resources to carry out its
plan or proposal. The decision whether to give a preference in any
specific case will be at the discretion of the grantee. However, the
grantee agrees that the Secretary of Commerce may review the grantee's
licensing program and decisions regarding small business applicants, and
the grantee will negotiate changes to its licensing policies,
procedures, or practices with the Secretary of Commerce when the
Secretary of Commerce's review discloses that the grantee could take
reasonable steps to implement more effectively the requirements of this
paragraph k.(4).

l\. [Communications]{.underline}.

The DOE central point of contact for communications or matters relating
to this clause is the Patent Counsel.

**27. RIGHTS IN DATA - SBIR/STTR PROGRAM.**

a\. [Definitions.]{.underline}

"Computer software" as used in this term, means computer programs,
computer databases, and documentation thereof.

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

"Form, fit and function data\" as used in this term, means data relating
to items, components, or processes that are sufficient to enable
physical and functional interchangeability as well as data identifying
source, size, configuration, matching and attachment characteristics,
functional characteristics, and performance requirements except that for
computer software it means data identifying source, functional
characteristics, and performance requirements, but specifically excludes
the source code, algorithm, process, formulae, and flow charts of the
software.

"Limited rights data" as used in this term, means data (other than
computer software) developed at private expense that embody trade
secrets or are commercial or financial and confidential or privileged.

"Restricted computer software" as used in this term, means computer
software developed at private expense and that is a trade secret; is
commercial or financial and confidential or privileged; or is published
copyrighted computer software; including modifications of such computer
software.

"SBIR/STTR data" as used in this term, means data first produced by a
grantee that is a small business firm in performance of a small business
innovation research grant issued under the authority of 15 U.S.C. 631
(Pub. L. 102-564, Small Business Research and Development Enhancement
Act of 1992), which data are not generally known, and which data without
obligation to its confidentiality have not been made available to others
by the grantee or are not already available to the Government.

"SBIR/STTR rights" as used in this term, means the rights in SBIR/STTR
data set forth in the SBIR/STTR Rights Notice of paragraph d. of this
term.

"Technical data" as used in this term, means that data which are of a
scientific or technical nature.

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

b\. [Allocation of Rights]{.underline}.

\(1\) Except as provided in paragraph c. of this term regarding
copyright, the Government shall have unlimited rights in ‑

\(a\) Data specifically identified in this grant as data to be delivered
without restriction;

\(b\) Form, fit, and function data delivered under this grant;

\(c\) Data delivered under this grant (except for restricted computer
software) that constitute manuals or instructional and training material
for installation, operation, or routine maintenance and repair of items,
components, or processes delivered or furnished for use under this
grant; and

\(d\) All other data delivered under this grant unless provided
otherwise for SBIR/STTR data in accordance with paragraph d. of this
term or for limited rights data or restricted computer software in
accordance with paragraph g. of this term.

\(2\) The grantee shall have the right to ‑

\(a\) Protect SBIR/STTR rights in SBIR/STTR data delivered under this
grant in the manner and to the extent provided in paragraph d. of this
term.

\(b\) Withhold from delivery those data which are limited rights data or
restricted computer software to the extent provided in paragraph g. of
this term.

\(c\) Substantiate use of, add, or correct SBIRSTTR rights of copyright
notices and to take other appropriate actions, in accordance with
paragraph e. of this term; and

\(d\) Establish claim to copyright subsisting in data first produced in
the performance of this grant to the extent provided in subparagraph c.
(1) of this term.

c\. [Copyrights]{.underline}.

\(1\) **Data first produced in the performance of this grant**. Except
as otherwise specifically provided in this grant, the grantee may
establish claim to copyright subsisting in any data first produced in
the performance of this grant. If claim to copyright is made, the
grantee shall affix the applicable copyright notice of 17 U.S.C. 401 and
402 and acknowledgment of Government sponsorship (including grant
number) to the data when such data are delivered to the Government, as
well as when the data are published or deposited for registration as
published work in the U.S. Copyright Office. For data other than
computer software the grantee grants to the Government, and others
acting on its behalf, a paid‑up nonexclusive, irrevocable worldwide
license to reproduce, prepare derivative works, distribute copies to the
public, and perform publicly and display publicly, by or on behalf of
the Government for all such data. For computer software, the grantee
grants to the Government, and others acting on its behalf, a paid‑up
nonexclusive, irrevocable worldwide license for all such computer
software to reproduce, prepare derivative works, and perform publicly
and display publicly, by or on behalf of the Government.

\(2\) **Data not first produced in the performance of this grant**. The
grantee shall not, without prior written permission of the Contracting
Officer, incorporate in data delivered under this grant; and that
contain the copyright notice of 17 U.S.C. 401 and 402, unless the
grantee identifies such data and grants to the Government, or acquires
on its behalf, a license of the same scope as set forth in subparagraph
c. (1) of this term.

\(3\) **Removal of copyright notices**. The Government agrees not to
remove any copyright notices placed on data pursuant to this paragraph
c., and to include such notices on all reproductions of the data.

d\. [Rights to SBIR/STTR Data.]{.underline}

\(1\) The grantee is authorized to affix the following SBIR/STTR Rights
Notice to SBIR/STTR data delivered under this grant and the Government
will thereafter treat the data, subject to the provisions of paragraphs
e. and f. of this term, in accordance with such Notice:

**SBIR/STTR RIGHTS NOTICE**

> These SBIR/STTR data are furnished with SBIR/STTR rights under Grant
> No.\_\_\_\_\_\_\_\_\_\_\_ (and subcontract
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_ if appropriate). For a period of 4 years
> after acceptance of all items to be delivered under this grant, the
> Government agrees to use these data for Government purposes only, and
> they shall not be disclosed outside the Government (including
> disclosure for procurement purposes) during such period without
> permission of the grantee, except that, subject to the foregoing use
> and disclosure prohibitions, such data may be disclosed for use by
> support contractors. After the aforesaid 4‑year period the Government
> has a royalty‑free license to use, and to authorize others to use on
> its behalf, these data for Government purposes, but is relieved of all
> disclosure prohibitions and assumes no liability for unauthorized use
> of these data by third parties. This Notice shall be affixed to any
> reproductions of these data in whole or in part.

**(End of Notice)**

\(2\) The Government's sole obligation with respect to any SBIR/STTR
data shall be as set forth in this paragraph d.

e\. [Omitted or Incorrect Markings]{.underline}.

\(1\) Data delivered to the Government without any notice authorized by
paragraph d. of this term, and without a copyright notice, shall be
deemed to have been furnished with unlimited rights, and the Government
assumes no liability for the disclosure, use, or reproduction of such
data. However, to the extent the data have not been disclosed without
restriction outside the Government, the grantee may request within six
months (or a longer time approved by the Contracting Officer for good
cause shown) after delivery of such data, permission to have notices
placed on qualifying data at the grantee's expense, and the Contracting
Officer may agree to do so if the grantee --

\(a\) Identifies the data to which the omitted notice is to be applied;

\(b\) Demonstrates that the omission of the notice was inadvertent;

\(c\) establishes that the use of the proposed notice is authorized; and

\(d\) Acknowledges that the Government has no liability with respect to
the disclosure or use of any such data made prior to the addition of the
notice or resulting from the omission of the notice.

\(2\) The Contracting Officer may also (a) permit correction, at the
grantee\'s expense, of incorrect notices if the grantee identifies the
data on which correction of the notice is to be made and demonstrates
that the correct notice is authorized, or (b) correct any incorrect
notices.

f\. [Protection of Limited Rights Data.]{.underline} When data other
than that listed in subdivisions b.(1)(a), (b), and (c) of this term are
specified to be delivered under this grant and such data qualify as
either limited rights data or restricted computer software, the grantee,
if the grantee desires to continue protection of such data, shall
withhold such data and not furnish them to the Government under this
grant. As a condition to this withholding the grantee shall identify the
data being withheld and furnish form, fit, and function data in lieu
thereof.

g\. [Contracts and Subgrants under the Grant.]{.underline} The grantee
has the responsibility to obtain from its contractors and subgrantees
all data and rights therein necessary to fulfill the grantee\'s
obligations to the Government under this grant. If a contractor or
subgrantee refuses to accept terms affording the Government such rights,
the grantee shall promptly bring such refusal to the attention of the
Contracting Officer and not proceed with contract or subgrant award
without further authorization.

h\. [Relationship to Patents]{.underline}. Nothing contained in this
term shall imply a license to the Government under any patent or be
construed as affecting the scope of any license or other right otherwise
granted to the Government.

**28. RIGHTS TO APPLICATION DATA.**

Except for data contained on pages
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, it is agreed that as a
condition of award of this grant, and notwithstanding the conditions of
any notice appearing thereon, the Government shall have unlimited rights
(as defined in the "Rights in Data -- SBIR/STTR Program" term contained
in this grant) in and to the technical data contained in the application
dated \_\_\_\_\_\_\_\_\_\_\_\_\_, upon which this grant is based.

**29. OTHER RESEARCH SUPPORT.**

a\. The recipient represents that it has disclosed to the Contracting
Officer any applications made or contemplated at the time of award of
this grant to be made by it to any public or private entity for
performance of the same or similar work.

b\. The recipient agrees to inform the Contracting Officer of any
application submitted to any public or private entity for the same or
essentially the same project throughout the period of performance of
this award.

c\. The recipient further agrees that it has not accepted and will not
be a party to any contractual arrangement for the duration of this
project for the same or essentially the same work as contemplated by
this award.

d\. Failure of the recipient to adhere to paragraphs a., b., and c.
above shall constitute a basis for a determination of noncompliance
under 10 CFR 600.24.

**30. NOTIFICATION OF DELAY.**

If the recipient will not complete the project or complete the project
within the established time frame, the Contracting Officer should be
notified as soon as that circumstance becomes apparent.

**31. FEE.**

SBIR/STTR recipients may be paid a fee or profit.

**32. PAYMENT**

See 10 CFR 600.312, Payment.

**GENERAL TERMS AND CONDITIONS APPLICABLE TO PHASE I ONLY**

**1. FIXED OBLIGATION.**

a\. Awards will be made on a \"fixed obligation\" basis in accordance
with 10 CFR 600.381(b).

> b\. The Contracting Officer may approve lump-sum payments in
> circumstances deemed appropriate by

DOE. If a lump‑sum payment is made, such payment is subject to the
condition that the recipient will

return to the DOE amounts remaining unexpended at the end of the project
if those amounts exceed \$500 in

accordance with 10 CFR 600.381(b)5.

**2. PREAWARD COSTS.**

Preaward expenditure approval as stated in the term entitled, "Preaward
Costs" of these General Terms and Conditions, is not required for Phase
I awards.

**GENERAL TERMS AND CONDITIONS APPLICABLE TO PHASE II ONLY**

**1. REPORTING NON‑FEDERAL SUPPORT.**

The recipient agrees to provide the SBIR Program Manager an annual
report during Phase II and for five years after completion of this
project detailing the sources and amounts of non‑Federal funding used to
continue support or commercialization of the research funded under this
award.