# Presentation: 525373

## NON-DOE SPONSORED RESEARCH OVERVIEW

**Sponsored Projects Office**
**Jeff Weiner**
**March  2004**

## Major Topics

- Sponsored Research Laws and Regulations
- Basic WFO, CRADA and User Processes and Policies
- Type of Agreements
- Key Issues

## Basics 101

_**Sponsored Research IS**_
- Projects and funding that is performed at LBNL and which is _not_ direct DOE appropriations (funds _into_ LBNL)
- Work for Others (WFO), CRADAs and User Agreements
_**Sponsored Research IS NOT**_
- Direct DOE appropriations
- Licenses to UC/LBNL intellectual property
- Procurement (funds out of LBNL)

## Laws That Give DOE Authority to Perform Work for Others

- One of the most important rules of DOE WFO is that the DOE is not allowed to place itself in competition with the private sector.
- Policy documents with the force of law define certain activities known as “inherently governmental functions” that may only be performed by the Government itself (for example, maintaining armed forces or making laws).
-  To acquire services or supplies that are not “inherently governmental functions,” the Government generally must go to private industry, where it solicits competitive proposals and makes the best possible deal for taxpayers’ dollars.

## Laws That Give DOE Authority to PerformWork for Others  (continued)

- Given these restrictions, how can one Government agency
-  -- say, the Department of Defense –
-  turn to another
-  -- the Department of Energy –
-  to supply required services or supplies?
-   The answer is provided in a number of public laws that authorize interagency procurement, including DOEs Work for Others program.

## Laws That Authorize DOE to PerformWork for Others

- 	**Economy Act of 1932 -- **Authorizes an agency to place orders for goods and services, subject to availability, with another Government agency when the head of the ordering agency determines that it is in the best interest of the Government to do so, and that the ordered goods and services cannot be provided by contract as conveniently or cheaply by a commercial enterprise.

- 	**Atomic Energy Act of 1954 -- **Authorizes research and development and training to be done for other Federal agencies (OFA) and for nonfederal entities.  It only permits such activities if private facilities are inadequate.  Therefore, this Act supports the idea of uniqueness of facilities and non-competition with the private sector.

## Other Government Directives --Acquisition Regulations That Affect Work for Others

- 	**FAR 35.107, Federally Funded Research and Development Center -- **Establishes Government-wide policies for the establishment, use, review, and termination of federally funded research and development centers, including those managed by the Department of Energy’s management and operating (M&O) contractors.  It contains a restriction on Federally Funded Research and Development centers competing for business with private sector companies.

**	****FAR 17.5, Interagency Acquisitions Under the Economy Act  --  **Prescribes policies and procedures for a Federal agency to obtain supplies for services from another Federal agency.
**	****FAR 6.002 -- **Prohibits agencies from contracting for supplies or services from another agency for the purpose of avoiding competition requirements. This is to avoid 100% “pass throughs”.

## DOE Orders

**DOE 481.1B** - Work for Others (Non-Department of Energy Funded Work) --  Establishes DOE policy, procedures, and responsibilities for authorizing and administering non-DOE-funded work.
**DOE Accounting Handbook** - Provides DOE policy and general procedures for the financial management of cash, advances, receivables, inventories, and investment of funds; accountability for plant and capital equipment; current and long-term liabilities; and accounting for equity, revenues, and expenses.  Chapter 13, Reimbursable Work, Revenues, and Other Collections, includes information on handling WFO activities.
**DOE Order 2110.1A** - Pricing of Departmental Materials and Services – Establishes policy for setting prices and charges for materials or services sold or provided by the Department, either directly or through M&O contractors to organizations and persons outside the Department. This has been supplemented by a 10/98 memo from the DOE CFO providing guidance on the new policy for waiving the Federal Administrative Charge.

## The Sponsored Projects Office handles  the following transactions:

**Clause 2.5 – Agreements to Perform Non-DOE Activities**
- 	(a)  	The Contractor may perform work at the Laboratory for other 	federal and nonfederal entities that is not funded by DOE 	appropriations, as authorized by the Contracting Officer.  The 	Contractor shall comply with all laws, regulations, and DOE policy 	in the conduct of such work.

**Contract 98 -- Clause 7.1**
- 	(a)(3)  “Cooperative Research and Development Agreement”
- 	(n)(4)  WFO and user facility programs
-      (i)   	  WFO Agreements and User Facility Agreements are not CRADAs 	   and will be available for use by the Contractor in addition to 	  	   CRADAs for achieving utilization of employee expertise and unique 	   facilities for maximizing technology transfer

## Authoritiesfor Sponsored Research at LBNL

- Only Sponsored Projects Office (SPO) has authority to submit proposals and accept awards on behalf of LBNL
- Delegation from UC through Lab Director
- PI _does not_ have authority to submit proposals or accept awards
- SPO website:  _[www.lbl.gov/workplace/CFO/SPO](http://www.lbl.gov/workplace/CFO/SPO)_
- SPO assignments, forms

## Work for Others

**Contract between LBNL or DOE and a Federal or Nonfederal sponsor for contract R&D to be performed by LBNL**

-   a unique Laboratory capability
-   work must fit within mission of LBNL
-   cannot compete with private sector
-   all costs are recovered from the sponsor
-   requires DOE approval

## Cooperative Research and Development Agreement (CRADA)

**A CRADA is an agreement between one or more federal laboratories and one or more nonfederal parties under which the government, through its laboratories, provides personnel, facilities, or other resources with or without reimbursement (but not funds to nonfederal parties).  The nonfederal parties provide funds, personnel, facilities, or other resources to conduct specific research or development efforts that are consistent with the laboratories mission.**

-   requirement that no funds leave the laboratory
-   not subject to 31 USC 6303-6305 terms for procurement contracts, grants, or 	cooperative agreements
-   rights to inventions and other intellectual property are negotiated as part of the 	agreement
-   option for Exclusive License
-   certain data generated by the federal laboratory may be protected up to five years
-   Joint Work Statement (JWS) approved by DOE

## User Facilities

-   research may be conducted on a proprietary or nonproprietary basis
-   for proprietary R&D, full cost recovery is required.  Patent rights generally go to 	inventor and proprietary data of the user can 	be protected
-   for nonproprietary R&D, there is no charge.  Title to inventions goes to the user, 	but data generated is freely available

**User facilities are unique, complex, experimental facilities including equipment and expertise at a government laboratory designated by the government for use by the technical community, universities, industry, other laboratories, and other government entities.**

**User Facilities**

## Contract Elements

- There must be at least two persons, each of whom has the legal capacity to act.  Legal capacity encompasses age (i.e., majority age) and mental competency (ability to understand the nature, terms, and effect of the contract).
- The contracting parties must, by offer and acceptance, manifest assent to the terms of the contract.
- There must be sufficient consideration to enforce the promise.  Consideration can be described as the price bargained for and paid for a promise.  It may consist of an act, a forbearance, or a return promise.
- The agreement must not require the performance of an illegal act by either party.
- Finally, the agreement must be in the form required by the applicable law.

## Key Elements of CRADAs and Contracts

**CRADAs**
**Financial Terms**
- 			- Funds-in from Partners
- 			- In-kind Contributions from Partners
- 			- Funds-in from DOE
**Legal Requirements**
-  			- Product Liability
- 			- Export Control
**Intellectual Property**
- 			- Copyrights
- 			- Title to Inventions
- 			- DOE March-in Rights

## Key Elements of CRADAs and Contracts (continued)

**CRADAs** (continued)
**US Competitiveness**
**Disputes**
- 		- Negotiations
- 		- Binding Arbitration or Court
**Termination**
- 		- 60-days Termination
- 		- Can be Terminated by Either Party
**Joint Work Statement (Statement of Work)**
- 		- Approved by DOE

## Key Elements of CRADAs and Contracts (continued)

**CONTRACTS**
- Financial Terms
- 		- Advanced Funding Required
- 		- Total Funding Obligated by Sponsor
- Property
- General Indemnification
- Product Liability Indemnification
- Patent Rights
- 		- DOE Class Waiver or
- 		- UC Retains Rights
- Rights in Technical Data
- 		- LBNL Does Not Perform Proprietary Research
- Termination
- Statement of Work

## Types of WFO Agreements

- Interagency Agreements between DOE and another Federal agency
- Grants – NIH award is made to UC
- Nonfederal WFO Agreements LBNL has delegation to sign approved agreements.  Generally we use 5 Exhibits.

## Financial Considerations for All Awards

- All work is done at full cost recovery (all Lab direct and indirect costs)
- Most sponsors also pay Federal Administrative Charge (FAC) of 3%
- Some types of sponsors get FAC waived by DOE
- Costs must be charged to correct awards
- Costs cannot exceed contract value, cash on hand (nonfederal) or period of performance

## Slide 20

## Instructions for Completing

** **

**Exception to Full Cost Recovery**

** **

**Waiver Request Form**

- The April 1999 revision simplifies the form for requesting a DOE/OAK

- waiver of the Federal Administrative Charge (FAC).

- 1.

**Type of Sponsor:**

-   Check the

- box, which

-  describes t

- he

- sponsor.  If the sponsor is non

- -

- profit institution or small

- business, SPO will be responsible for getting the necessary IRS

- letter or small business certification.  The Blanket Pricing

- exceptions are listed in Attachment A to this instruction sheet.

- 2.

**Proposal Number:**

-   LBNL proposal number (BG number)

- 3.

**Sponsor:**

-   Self explanatory

- 4.

**Title:**

-   Use same title as on the SPPF

- 5.

**Scope of Work:**

-   Use same SOW as the SPPF

- 6.

**Calculation:**

-   Use the summary information for the entire

- period of support.

- 7.

**B&**

**R Classification of Related Program:**

-   The benefiting B&R

- number must include

- :

- a)

- the B&R code, and

- b)

- title of the DOE benefiting program

- 8.

**Further Information Contact:**

-   Insert the SPO contracts officer

- and telephone number.

** **

- 9.

**Approvals:**

-   For DOE use

-  only.

## Attachment A

**B**

**LANKET PRICING EXCEPTIONS APPROVED**

** **

**BY OFFICE OF CHIEF FINANCIAL OFFICER**

**DOE Customer**

- 1.

- National Institutes of Health

- 2.

- DOD Counter

-  P

- proliferation

- 3.

- National Reconnaissance Office

- 4.

- DOD Joint Advanced Strike

- Technology Program

- 5

- .

- U. S. Nuclear Detonation

- Detection System

- 6.

- Strategic Environmental Research

- and Development Program

- 7.

- Naval Reactors

- 8

- .

- Non

- -

- nuclear Munitions Technology Program

- 9

- .

- United States Enrichment Corporation (USEC)

- 10.

- Counter Terrorism and Homeland

- Security

## Intellectual Property Considerations

- Generally, nonfederal sponsors get title to Lab inventions
- Exceptions are granted under certain DOE approved situations
- We are different than UC campuses
- Generally, Lab gets title to inventions under Federal sponsors

## Slide 24

## Funding Process:  Other Federal Agencies

**Sponsor sends a funding document to LBNL, including citation of statutory authority for work and a written statement that:**
- By entering into this agreement it is in compliance with the Federal Acquisition Regulation (FAR) 6.002, and to their knowledge, the work requested will not place LBNL in direct competition with the domestic private sector LBNL sends the funding document to DOE for them to sign and accept funding.
- * DOE requires full funding for work performed.  Sponsors must provide funding for the current fiscal year, and for 3 months of the following year if the work crosses fiscal years.  Sponsors may not incrementally fund work without DOE approval.
- * Once DOE accepts the funding, LBNL has the authority from the sponsor to begin work, open accounts, incur costs up to the funded amount, and invoice the sponsor for those costs.

## Funding Process:  Nonfederal

- SPO determines which terms/conditions are needed
- SPO and the sponsor sign a standard contract – no additional DOE approval necessary
- If it’s non-standard – DOE approval is required, which can be lengthy
- Projects cannot begin until receipt of advance payment is received (if required)

## LBNL WFO Agreements

_**Exhibit A.**_  This contract will apply to private or non-profit sponsors which are offered the WFO patent class waiver.  No Generated Information can be marked proprietary and sponsor has unlimited rights to Generated Information, except computer software.

## Slide 28

## Slide 29

## Slide 30

## Slide 31

## Slide 32

## Slide 33

## Slide 34

## Slide 35

**Technical Tasks** – This paragraph should define the work to be accomplished and indicate the main steps and actions, which are required of LBNL to perform properly.
- If the work encompasses several areas or lends itself to task division, this should be indicated.  The essential procedures (e.g., theoretical analysis, design, fabrication, check out, tests, verification, formation of final recommendations, etc.), with limits on each, constitute the bulk of this paragraph.  Definitions should also be included in this section.
**Example**

## LBNL WFO Agreements (continued)

_**Exhibit B.**_   This contract is similar to A, except the class waiver does not apply.  Both parties keep rights to their inventions, and the sponsor is granted a license in Contractor’s inventions.
_**Exhibit C.**_  This contract is for standard laboratory analysis or characterization, technical assistance, training or other work not involving protectable intellectual property, or the transfer of LBNL technology.  The patent and product liability articles are reserved.
_**Exhibit D.**_  This contract is to be used for state and local governments or U. S. universities, when the class waiver does not apply.

## Slide 38

## LBNL WFO Agreements (continued)

_**Exhibit E. and Exhibit F. (ref)**_  This Memorandum Agreement (Exhibit E) and the document, “Work for UC Campuses by UC National Laboratories General Provisions” [Exhibit F (ref.)], which is incorporated by reference in Exhibit E, are for use by UC campuses when contracting with UC managed and operated National Laboratories for research or services.

## Slide 40

## Pitfalls, Traps and ‘Watch-Out-Fors’

**RFPs (Request for Proposals)**
- LBNL cannot be a prime contractor or subcontractor on federal RFPs – Sandia case
- nonfederal RFPs need SPO review
**Advance Payments (nonfederal sponsor)**
- work cannot begin until advance payments received
- universities and small business may have problems

## Publication Restrictions

LBNL must have freedom to publish
sponsors may restrict publication
Director approval needed

Indemnification

LBNL cannot indemnify
sponsor must indemnify LBNL and government

- LBNL must have freedom to publish
- sponsors may restrict publication
- Director approval needed
**Indemnification**
- LBNL cannot indemnify
- sponsor must indemnify LBNL and government

**Pitfalls, Traps and ‘Watch-Out-Fors’ ****(continued)**

## Guaranteed Performance

work is “best efforts”
full cost reimbursement

Cash Management

LBNL cannot work in excess of cash payments from nonfederal sponsors
funding vs. cash distinction

- work is “best efforts”
- full cost reimbursement
**Cash Management**
- LBNL cannot work in excess of cash payments from nonfederal sponsors
- funding vs. cash distinction

**Pitfalls, Traps and ‘Watch-Out-Fors’ ****(continued)**