62900 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

14 CFR Parts 1260 and 1274

NASA Grants and Cooperative

Agreements

AGENCY: National Aeronautics and

Space Administration (NASA).

ACTION: Final rule.

SUMMARY: This final rule revises NASA’s

grant and cooperative agreement

regulations in order to clarify and

amplify administrative requirements.

Revisions have been made to reduce

administrative requirements on grant

and cooperative agreement recipients

and ensure that uniform policies are

followed by NASA centers.

EFFECTIVE DATE: October 19, 2000.

FOR FURTHER INFORMATION CONTACT: Jeff

Lupis, NASA Headquarters, Code HS,

Washington, DC 20546, telephone: (202)

358–0462; e-mail: jlupis@hq.nasa.gov.

SUPPLEMENTARY INFORMATION:

A. Background

NASA is adopting as final, with

changes, the proposed rule published in

the Federal Register (64 FR 50334–

50388, September 16, 1999) that revises

the NASA Grant and Cooperative

Agreement Handbook, 14 CFR parts

1260 and 1274. A total of 10

organizations submitted comments in

response to the proposed rule. All

comments were considered in the

development of this final rule. Editorial

and administrative changes are also

included in this final rule. Changes

made to this final rule include

clarification of policies in the following

areas: Procedures for acquisition of

property by grant recipients, procedures

for no-cost grant extensions, policies on

patent rights and invention and

reporting rights, timeframes and

procedures for closeout of grant files,

situations requiring resource

contributions for grants and cooperative

agreements with commercial firms,

procedures for making payments to

commercial firms, requirements for

annual civil rights certifications,

performance of research with foreign

organizations on a no-exchange-of-funds

basis, and termination procedures. All

the revisions in this final rule are

considered administrative or editorial

and do not involve a significant change

in Agency policy.

B. Regulatory Flexibility Act

NASA certifies that this final rule will

not have a significant economic impact

on a substantial number of small entities

within the meaning of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq. The

revisions made under this final rule are

limited to administrative changes to the

grant and cooperative agreement award

and administration process, and other

changes (e.g. vesting of title to property

to grant recipients) will not have a

significant economic impact.

C. Paperwork Reduction Act

The Paperwork Reduction Act applies

to this final rule, in that it incorporates

a new policy requiring Central

Contractor Registration (CCR) for grant

and cooperative agreement recipients.

An Office of Management and Budget

(OMB) approval for data collection has

been approved under OMB Control

Number 2700–0097.

List of Subjects in 14 CFR Parts 1260

and 1274

Grant Programs—Science and

Technology

R. Scott Thompson,

Acting Associate Administrator for

Procurement.

Proposed Rule Adopted as Final Rule

With Changes

Accordingly, 14 CFR Chapter V is

amended as follows:

1. Part 1260 is revised to read as

follows:

PART 1260—GRANTS AND

COOPERATIVE AGREEMENTS

Subpart A—General

Sec.

1260.1 Authority.

1260.2 Purpose.

1260.3 Definitions.

1260.4 Applicability.

1260.5 Amendment.

1260.6 Publication.

1260.7 Deviations.

Pre-Award Requirements

1260.10 Proposals.

1260.11 Evaluation and selection.

1260.12 Choice of award instrument.

1260.13 Award procedures.

1260.14 Limitations.

1260.15 Format and numbering.

1260.16 Distribution.

Provisions

1260.20 Provisions.

1260.21 Compliance with OMB Circular A–

110.

1260.22 Technical publications and reports.

1260.23 Extensions.

1260.24 Termination and enforcement.

1260.25 Change in principal investigator or

scope.

1260.26 Financial management.

1260.27 Equipment and other property.

1260.28 Patent rights.

1260.29 [Reserved].

1260.30 Rights in data.

1260.31 National security.

1260.32 Nondiscrimination.

1260.33 Subcontracts.

1260.34 Clean air and water.

1260.35 Investigative requirements.

1260.36 Travel and transportation.

1260.37 Safety.

1260.38 Drug-free workplace.

Special Conditions

1260.50 Special conditions.

1260.51 Cooperative agreement special

condition.

1260.52 Multiple year grant or cooperative

agreement.

1260.53 Incremental funding.

1260.54 Cost sharing.

1260.55 Reports substitution.

1260.56 Withholding.

1260.57 New technology.

1260.58 Designation of new technology

representative and patent representative.

1260.59 Choice of law.

1260.59A Invention reporting and rights.

1260.60 Public information.

1260.61 Allocation of risk/liability.

1260.62 Payment—to foreign organizations.

1260.63 Customs clearance and visas.

1260.64 Taxes.

1260.65 Exchange of technical data and

goods.

1260.66 Listing of reportable equipment

and other property.

1260.67 Equipment and other property

under grants with commercial firms.

1260.68 Invoices and payments under

grants with commercial firms.

1260.69 Electronic funds transfer payment

methods.

Post-Award Requirements

1260.70 Delegation of administration.

1260.71 Supplements and renewals.

1260.72 Adherence to original budget

estimates.

1260.73 Transfers, novations, and change of

name agreements.

1260.74 Property use, disposition, and

vesting of title.

1260.75 Summary of report requirements.

1260.76 Termination and enforcement.

1260.77 Closeout procedures.

Appendix to Subpart A to Part 1260—Listing

of Exhibits

Subpart B—Uniform Administrative

Requirements for Grants and Cooperative

Agreements with Institutions of Higher

Education, Hospitals, and Other Non-Profit

Organizations

General

1260.101 Purpose.

1260.102 Definitions.

1260.103 Effect on other issuances.

1260.104 Deviations.

1260.105 Subawards.

Pre-Award Requirements

1260.110 Purpose.

1260.111 Pre-award policies.

1260.112 Forms for applying for Federal

assistance.

1260.113 Debarment and suspension.

1260.114 Special award conditions.

1260.115 Metric system of measurement.

1260.116 Resource Conservation and

Recovery Act (RCRA).

1260.117 Certifications and representations.

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62901

Post-Award Requirements

Financial and Program Management

1260.120 Purpose of financial and program

management.

1260.121 Standards for financial

management systems.

1260.122 Payment.

1260.123 Cost sharing or matching.

1260.124 Program income.

1260.125 Revision of budget and program

plans.

1260.126 Non-Federal audits.

1260.127 Allowable costs.

1260.128 Period of availability of funds.

Property Standards

1260.130 Purpose of property standards.

1260.131 Insurance coverage.

1260.132 Real property.

1260.133 Federally-owned and exempt

property.

1260.134 Equipment.

1260.135 Supplies and other expendable

property.

1260.136 Intangible property.

1260.137 Property trust relationship.

Procurement Standards

1260.140 Purpose of procurement

standards.

1260.141 Recipient responsibilities.

1260.142 Codes of conduct.

1260.143 Competition.

1260.144 Procurement procedures.

1260.145 Cost and price analysis.

1260.146 Procurement records.

1260.147 Contract administration.

1260.148 Contract provisions.

Reports and Records

1260.150 Purpose of reports and records.

1260.151 Monitoring and reporting program

performance.

1260.152 Financial reporting.

1260.153 Retention and access

requirements for records.

Termination and Enforcement

1260.160 Purpose of termination and

enforcement.

1260.161 Termination.

1260.162 Enforcement.

After-the-Award Requirements

1260.170 Purpose.

1260.171 Closeout procedures.

1260.172 Subsequent adjustments and

continuing responsibilities.

1260.173 Collections of amounts due.

Appendix A to Subpart B of Part 1260—

Contract Provisions

Authority: 42 U.S.C. 2473(c)(1), Pub. L. 97–

258, 96 Stat. 1003 (31 U.S.C. 6301 et seq.),

and OMB Circular A–110.

Subpart A—General

§ 1260.1 Authority.

(a) The National Aeronautics and

Space Administration (NASA) awards

grants and cooperative agreements

under the authority of 42 U.S.C.

2473(c)(5), the National Aeronautics and

Space Act. This part 1260 is issued

under the authority of 42 U.S.C.

2473(c)(1), Pub. L. 97–258, 96 Stat. 1003

(31 U.S.C. 6301 et seq.), and OMB

Circular A–110.

(b) The Office of Management and

Budget (OMB) approved information

collection under the Paperwork

Reduction Act and assigned OMB

control numbers 2700–0047, Property

Management and Control; 2700–0048,

Patents; 2700–0049, Financial

Management and Control; and 2700–

0097, Central Contractor Registration.

§ 1260.2 Purpose.

(a) This subpart A of the NASA Grant

and Cooperative Agreement Handbook

(also subpart A of 14 CFR part 1260),

provides supplemental NASA policies

that clarify and amplify governmentwide regulations for awarding and

administering grants and cooperative

agreements with educational and nonprofit organizations. The governmentwide regulations that this subpart

supplements are set forth in OMB

Circular A–110 ‘‘Uniform

Administrative Requirements for Grants

and Agreements With Institutions of

Higher Education, Hospitals, and Other

Non-Profit Organizations.’’ (NASA has

adopted OMB Circular A–110 as subpart

B of this part 1260.)

(b) As required by the Office of

Management and Budget (OMB), NASA

has also adopted the standards set forth

in OMB Circular No. A–133, Audits of

States, Local Governments, and NonProfit Organizations.

§ 1260.3 Definitions.

(a) The following definitions are a

supplement to the subpart B definitions

set forth at § 1260.102. Additional

definitions applicable to specific

categories of grants and cooperative

agreements are set forth at 14 CFR

1273.3 and 14 CFR 1274.102.

(b) Throughout subpart A to this part

1260, the term ‘‘grant’’ includes

‘‘cooperative agreement’’ unless

otherwise indicated.

Administrative grant officer means a

Federal employee delegated

responsibility for grant administration;

e.g., a NASA grant officer who has

retained grant administration

responsibilities, or an Office of Naval

Research (ONR) grant officer delegated

grant administration by a NASA grant

officer.

Amendment means any document

used to effect modifications to grants

and cooperative agreements.

Amendments may be issued unilaterally

at the discretion of the grant officer.

Commercial firm means any

corporation, trust or other organization

which is organized primarily for profit.

Effective date means the date work

can begin, which could be earlier or

later than the date of signature on a

basic award or modification.

Expenditures made prior to award of a

grant are incurred at the recipient’s risk.

Expiration date means the date of

completion specified in the grant, after

which expenditures may not be charged

against the grant except to satisfy

obligations to pay allowable costs

committed on or before that date.

Historically Black Colleges and

Universities means institutions

determined by the Secretary of

Education to meet the requirements of

34 CFR 608.2 and listed therein.

Minority educational institution

means an institution determined by the

Secretary of Education to meet the

requirements of 34 CFR 637.4.

Non-profit organization means an

organization that qualifies for the

exemption from taxation under section

501 of the Internal Revenue Code of

1954, as amended, 26 U.S.C. 501.

Progress report means a concise

statement of work accomplished during

the report period (see §§ 1260.22 and

1260.75(b)(3)).

Recipient acquired equipment means

equipment purchased or fabricated with

grant funds by a recipient for the

performance of work under its grant.

Small business concern means a

concern, including its affiliates, which

is independently owned and operated,

not dominant in the field of operation

in which it is bidding, and qualifies as

a small business under the criteria and

size standards in 13 CFR part 121.

Small disadvantaged business

concern means a small business concern

owned and controlled by individuals

who are both socially and economically

disadvantaged and meets the criteria set

forth at 13 CFR part 24.

Summary of research means a

document summarizing the results of

the entire project, which includes

bibliographies, abstracts, and lists of

other media in which the research was

discussed.

Women-owned small business

concern means a small business concern

that is at least 51 percent owned by

women who are U.S. citizens and who

also control and operate the business

(15 U.S.C. 637(d)).

§ 1260.4 Applicability.

(a) Subparts A and B of this part 1260

establish policies and procedures for

grants and cooperative agreements

awarded by NASA to institutions of

higher education, hospitals, and other

non-profit organizations.

(b) Subject to the special

considerations in this paragraph,

62902 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

subparts A and B of this part 1260 are

also applicable to NASA grants and

cooperative agreements awarded to

commercial firms which do not involve

cost sharing. (This does not prohibit

voluntary cost sharing.) When the

commercial firm is expected to receive

substantial compensating benefits for

performance of the work, resource

contributions are required for the award

of a grant or cooperative agreement. For

policies on cooperative agreements with

commercial organizations requiring

resource contributions by the Recipient,

see 14 CFR part 1274.

(1) The allowability of costs incurred

by commercial firms is determined in

accordance with the provisions of the

Federal Acquisition Regulation (FAR) at

48 CFR part 31.

(2) NASA does not allow for payment

of profit or fee to commercial firms

under grant awards.

(3) When applying the policies set

forth under § 1260.74, the grant officer

shall vest title to any equipment

purchased under the grant with the

Government. The special condition at

§ 1260.67, Equipment and Other

Property Under Grants With

Commercial Firms, shall be

incorporated into all grants with

commercial firms in place of the

provision at § 1260.27, Equipment and

Other Property.

(4) Due to differing NASA patent

policies applicable to large businesses,

special conditions at § 1260.57, New

Technology, and § 1260.58, Designation

of New Technology Representative and

Patent Representative, shall be

incorporated into all grants with

commercial firms other than those with

small businesses, in place of the

provision at § 1260.28, Patent Rights.

Grants with small businesses should

retain the § 1260.28 provision.

(5) Payments under grants with

commercial firms will be made based on

incurred costs. NASA Form 272 is not

required. Commercial firms will be

required to submit invoices on a no

more than quarterly basis. Payments to

be made on a more than quarterly basis

require the written approval of the grant

officer. The center finance office should

also be informed when payments are to

be made on other than a quarterly basis.

The special condition at § 1260.68,

Invoices and Payments Under Grants

With Commercial Firms, shall be

incorporated into all grants with

commercial firms in place of the

provision at § 1260.26, Financial

Management.

(6) Payments will be made to

commercial firms via electronic funds

transfer. The special condition at

§ 1260.69, Electronic Funds Transfer

Payment Method, shall be incorporated

into all grants with commercial firms.

(7) Delegation of grant administration

functions consistent with the policies

set forth at § 1260.70 (i.e., property

administration and closeout are to be

delegated) will be made to the cognizant

field office of the Defense Contract

Management Agency instead of to the

Office of Naval Research. Delegations

will be made using NASA Form 1674,

Letter of Delegation, for the

Administration of Grants and

Cooperative Agreements (Exhibit F to

subpart A of this part 1260, available at

the address given in Exhibit F).

Cognizant offices for performing

administration under individual grants

are set forth in the ‘‘DoD Directory of

Contract Administration Services

Components,’’ which is available on the

internet at: http://

www.dcmc.hq.dla.mil/casbook/

casbook.htm

§ 1260.5 Amendment.

This part 1260 will be amended by

publication of changes in the Federal

Register. Changes will be issued as

Grant Notices and incorporated into the

official version of the handbook located

at the internet web site.

§ 1260.6 Publication.

The official site for accessing the

NASA Grant and Cooperative

Agreement Handbook, including current

Grant Notices, is on the internet at:

http://ec.msfc.nasa.gov/hq/grcover.htm

§ 1260.7 Deviations.

(a) A deviation is required for any of

the following:

(1) When a prescribed provision (but

not a special condition) set forth

verbatim in this part 1260 is modified

or omitted.

(2) When a provision is set forth in

this part 1260, but not for use verbatim,

and the Center substitutes a provision

which is inconsistent with the intent,

principle, and substance of the

provision.

(3) When a form prescribed by this

part 1260 is altered or another form is

used in its place.

(4) When limitations, imposed by this

handbook upon the use of a grant

provision, form, procedure, or any other

grant action, are changed.

(5) When a form is created for

recipient use that constitutes a

‘‘Collection of Information’’ within the

meaning of the Paperwork Reduction

Act (44 U.S.C. 35) and its

implementation in 5 CFR part 1320.

(b) Requests for authority to deviate

from this part 1260 shall be submitted

to the Office of Procurement, NASA

Headquarters, Procurement Operations

Division (HS). Requests, signed by the

procurement officer, shall contain:

(1) A full description of the deviation,

the circumstances in which it will be

used, and identification of the

requirement from which a deviation is

sought;

(2) The rationale for the request,

pertinent background information, and

the intended effect of the deviation;

(3) The name of the recipient,

identification of the grant affected, and

the dollar value;

(4) A statement as to whether the

deviation has been requested

previously, and, if so, details of that

request; and

(5) A copy of legal counsel’s

concurrence or comments.

(c) Where it is necessary to obtain a

deviation on OMB Circular A–110

(subpart B of this part 1260), Code HS

will process all necessary documents in

accordance with § 1260.104.

Pre-Award Requirements

§ 1260.10 Proposals.

(a) Consistent with 31 U.S.C. 6301(3),

NASA’s policy is to use competitive

procedures to award grants whenever

possible. A grant can result from:

(1) A proposal submitted in response

to a Broad Agency Announcement

(BAA) such as a NASA Research

Announcement (NRA) or an

Announcement of Opportunity (AO), a

Cooperative Agreement Notice (CAN),

an Agencywide program announcement

such as the Graduate Student Research

Program, or other forms of

announcements approved by the

Associate Administrator for

Procurement (HS). NRA’s are described

in the NASA FAR Supplement (NFS) 48

CFR 1835.016. AO’s are described in 48

CFR part 1872.

(2) An Unsolicited Proposal for new

and innovative ideas. Guidance on the

submission of unsolicited proposals is

contained in the Federal Acquisition

Regulation (FAR) 48 CFR subpart 15.6

and (NFS) 48 CFR subpart 1815.6. The

synopsis requirement in FAR Part 5,

however, does not apply to the grant

process. Contact with NASA technical

personnel prior to proposal submission

is encouraged to determine if

preparation of a proposal is warranted.

These discussions should be limited to

understanding NASA research needs

and do not jeopardize the unsolicited

status of any subsequently submitted

proposal.

(b) The proposal shall contain a

detailed narrative description of the

work to be undertaken, including the

objectives of the project and the

applicant’s plan for carrying it out.

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62903

(1) All proposals shall include budget

data as prescribed in the Budget

Summary (Exhibit A to subpart A of this

part 1260, available at the address given

in Exhibit A). Narrative detail must

support the proposed budget as required

in Exhibit A.

(i) The recipient institution is

responsible for ensuring that costs

charged are allowable, allocable, and

reasonable under the applicable cost

principles governed by OMB Circular

No. A–21 or A–122. For other details see

§ 1260.127.

(ii) Subject to applicable cost

principles, facilities and administrative

cost rates are negotiated between

recipients and the cognizant agencies

assigned under OMB Circular No. A–21.

NASA is required to apply the

applicable negotiated rate for all grants

awarded to the recipient.

(iii) NASA may accept cost sharing

when voluntarily offered. For further

guidance see § 1260.123. For grants and

cooperative agreements with

commercial organizations that involve

costs sharing, see 14 CFR part 1274. The

amount of cost sharing will not be a

factor in determining whether to select

a proposal for award. However,

recipients may be requested to secure

nonfederal matching funds equal to the

program portion of training and

education grants. In accordance with

NASA policy to foster continuity of

research, multiple year grant proposals

are encouraged, where appropriate, for a

period generally up to three years.

Proposals for multiple year grants shall

describe the entire research project and

include a complete budget for year one

and separate estimates for each

subsequent year.

(2) A Taxpayer Identification Number

(TIN) must be included with the address

listed on the proposal. If an award is

made, advance payments cannot be

made without a TIN (31 U.S.C.

7702(c)(1)).

(3) Prior to implementation of the

Integrated Financial Management (IFM)

System at each center, all grant and

cooperative agreement recipients are

required to register in the Department of

Defense (DoD) Central Contractor

Registration (CCR) database.

Registration is required in order to

obtain a Commercial and Government

Entity (CAGE) code, which will be used

as a grant and cooperative agreement

identification number for the new

system. The grant officer shall verify

that the prospective awardee is

registered in the CCR database using the

DUNS number or, if applicable, the

DUNS+4 number, via the Internet at

http://www.ccr2000.com or by calling

toll free: 800–841–4431, commercial:

696–961–5757.

(c)(1) Grant officers are required to

ensure that all necessary certifications,

disclosures, and assurances have been

obtained prior to awarding a grant or

cooperative agreement.

(2) Each new proposal shall include a

certification for debarment and

suspension under the requirements of

14 CFR 1265.510 and 1260.117.

(3) Each new proposal for an award

exceeding $100,000 shall include a

certification, and a disclosure form (SF

LLL) if required, on Lobbying under the

requirements of 14 CFR 1271.110 and

1260.117.

(4) Annually, recipients must furnish

assurances on NASA Form 1206 of

compliance with civil rights statutes

specified in 14 CFR parts 1250 through

1253.

§ 1260.11 Evaluation and selection.

(a) Technical evaluation of proposals

will be conducted by the cognizant

NASA technical office and may be

based on peer reviews.

(b) Under NRA’s, AO’s, other BAA’s,

and CAN’s, the selecting official will

furnish documentation requested by the

grant officer, (including a copy of the

NRA, selection statement, and peer

review evaluation if requested), to

confirm that the award is being made as

a result of a selection under a NRA, AO,

other BAA, or CAN. The technical office

will forward to the grant office a

completed award package, including a

funded procurement request, technical

evaluation of the proposed budget, and

other support documentation, at least 29

days prior to the requested award date,

or before the expiration of the funded

period in the case of the renewal of an

existing effort.

(c) If a proposal is not selected, the

proposer will be notified by the

selecting official in accordance with the

procedures set forth in the NRA, AO,

CAN, or BAA.

(d) Unsolicited proposals will be

evaluated in accordance with the

following procedure:

(1) Evaluations of unsolicited

proposals to be awarded as grants or

cooperative agreements will be

conducted using the same criteria used

for reviewing unsolicited proposals to

be awarded as contracts, as set forth at

FAR subpart 15.6 and (NFS) 48 CFR

subpart 1815.6. Normally, unsolicited

proposals are accepted to perform

discrete projects with defined

anticipated outcomes and completion

dates. An unsolicited proposal that

results in a grant or cooperative

agreement with no defined end date,

and which requires subsequent

submission of follow-on unsolicited

proposals to ensure continuation of the

effort, should be closely reviewed to

ensure that it meets the FAR definition

for a valid unsolicited proposal.

(2) An unsolicited proposal

recommended for acceptance shall be

supported by a Justification for

Acceptance of an Unsolicited Proposal

(JAUP) prepared by the cognizant

technical office. The JAUP shall be

submitted for the approval of the grant

officer after review and concurrence at

a level above the technical officer.

However, this review and concurrence

is not required for technical officers at

a division chief or higher level. The

grant officer’s signature on the award

document will indicate approval of the

JAUP.

(3) NASA will notify in writing

organizations that submit unsolicited

proposals that will not be funded.

Method of notification is at the

discretion of the grant officer. Proposals

will be returned only when requested.

Agency procedures for handling

unsolicited proposals are specified at

(NFS) 48 CFR 1815.606.

(e) For awards made noncompetitively, written justifications for

equipment or travel will be submitted

by the technical office for grant officer

approval when more than half of the

proposed budget is for equipment or

travel and associated indirect cost. The

justification shall describe the extent to

which the equipment or travel is

necessary. The grant officer’s signature

on the award will indicate approval of

the justification.

(f) The evaluation of the proposal

budget will conform to the following

procedure:

(1) The technical officer will review

the proposer’s estimated cost for

conformance to program requirements

and fund availability. The results of this

review shall be recorded in Column B

of the proposed Budget Summary Form

(Exhibit A to subpart A of this part

1260, available at the address given in

Exhibit A). New budgets are not

required when the program office

recommended funding is within twenty

percent (20 percent) of the proposed

amount, provided that, if requested by

the proposer, a revised scope of work

based on the recommended funding is

submitted by the proposer for

acceptance by the technical officer.

However, when funding decreases in

equipment and/or subcontracts are

involved, the cognizant program office

is required to identify the cost

element(s) affected by the change in

funding level.

(2) The grant officer will review the

budget, and any changes made by the

62904 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

technical officer, to identify any item

which may be unallowable under the

cost principles, or which appears

unreasonable or unnecessary. The grant

officer will complete Column C of the

Budget Summary after discussing

significant changes with the recipient

and/or technical office. Requests for

details from the recipient should be

limited.

(3) The grant officer will address

requests for direct charge of equipment

in the negotiation summary, and state

whether the purchase is approved as a

direct cost.

(g) 42 U.S.C. 2459d prohibits NASA

from funding any grant for longer than

one year if the effect is to provide a

guaranteed customer base for new

commercial space hardware or services.

The only exception would be if an

Appropriations Act specifies the new

commercial space hardware or services

to be used.

(h) NASA reserves the right to either

fully fund or incrementally fund grants

based on fiscal law and program

considerations. Grants with anticipated

annual funding exceeding $50,000 may

be funded for less than the amount

stated in the proposal.

(1) The grant officer will determine

the number of incremental funding

actions that will be allowed.

(2) The special condition at § 1260.53,

Incremental Funding, will be included

in the grant.

(i) Proposals for efforts that involve

printing, binding, and duplicating in

excess of 25,000 pages are subject to the

Government Printing and Binding

Regulations, No. 26, February 1990, S.

Pub. 101–9, U.S. Government Printing

Office, Washington, DC 20402,

published by the Congressional Joint

Committee on Printing. The technical

office will refer such proposals to the

Installation Central Printing

Management Officer (ICPMO). The grant

officer will be advised in writing of the

results of the ICPMO review.

(j) The provision at § 1260.30, Rights

in Data, is to be inserted as a standard

provision into grants and cooperative

agreements that don’t require cost

sharing. Additional language is required

for cost sharing and/or matching efforts,

and in cooperative agreements, as set

forth in the provision.

(k) By acceptance of a grant

(containing the provision at § 1260.34)

the recipient agrees that it is in

compliance with the Clean Air and

Federal Water Pollution Control Acts.

The Administrator may approve

exemptions from this prohibition under

certain circumstances under Executive

Order 11738. Requests for exemptions

or renewals thereof shall be made to the

Office of Procurement, NASA

Headquarters, Program Operations

Division (Code HS), Washington, DC

20546.

(l) Requests for acquisition of property

may be made by a recipient either as

part of the original budget proposal or

subsequent to award. Comprehensive

guidance on evaluating requests for

acquisition of property, vesting of title,

and administration issues, is set forth at

§ 1260.74.

§ 1260.12 Choice of award instrument.

(a) This section and § 1260.111

provide guidance on the appropriate

choice of award instruments consistent

with 31 U.S.C. 6301 to 6308.

Throughout § 1260.12, the term ‘‘grant’’

does not include ‘‘cooperative

agreements.’’

(b)(1) A procurement contract is a

mutually binding legal relationship

obligating the seller to furnish supplies

or services (including construction), and

the buyer pays for them.

(2) The principal purpose of a

procurement contract is to acquire, for

NASA’s direct use or benefit, a welldefined, specific effort clearly required

for the accomplishment of a scheduled

NASA mission or project.

(3) If it is determined that a

procurement contract is the appropriate

type of funding instrument to meet

NASA’s purposes, the procurement

shall be conducted under the FAR and

the NFS (48 CFR Chapter 18).

(4) If an action is to be awarded for

a dollar amount below the simplified

acquisition threshold, the action may be

completed by a contracting officer as a

purchase order. The purchase order

must be properly modified to include

necessary language pertaining to data

rights, key personnel requirements, and

any other necessary requirements as

determined by the contracting officer.

(c) A grant shall be used as the legal

instrument to reflect a relationship

between NASA and a recipient

whenever the principal purpose is the

transfer of anything of value to the

recipient to accomplish a public

purpose of support or stimulation

authorized by Federal statute. Grants are

distinguished from cooperative

agreements in that substantial

involvement is not expected between

NASA and the recipient when carrying

out the activity. Grants are

distinguished from contracts in that

grants provide financial assistance to

the recipient to conduct a fairly

autonomous program; contracts entail

acquisition. Various types of NASA

grants contain different provisions and

conditions as described in §§ 1260.20

and 1260.50. The major types of grants

and cooperative agreements are defined

as follows. Grants and cooperative

agreements to carry out other authorized

purposes should be used to the extent

appropriate, and must be in compliance

with OMB Circular A–110.

(1) Research grant. A research grant

shall be used to accomplish a NASA

objective through stimulating or

supporting the acquisition of knowledge

or understanding of the subject or

phenomena under study, or attempting

to determine and exploit the potential of

scientific discoveries or improvements

in technology, materials, processes,

methods, devices, or techniques and

advance the state of the art. The

recipient will bear prime responsibility

for the conduct of research, and

exercises judgment and original thought

toward attaining the scientific goals

within broad parameters of the research

areas proposed and the resources

provided;

(2) Education grant. Students and

faculty receiving direct support under a

NASA education grant must be U.S.

citizens. An education grant is an

agreement that provides funds to an

educational institution or other

nonprofit organizations within one or

more of the following areas:

(i) Capturing student interest and/or

improving student performance in

science, mathematics, technology, or

related fields;

(ii) Enhancing the skill, knowledge, or

ability of teachers or faculty members in

science, mathematics, or technology;

(iii) Supporting national educational

reform movements;

(iv) Conducting pilot programs or

research to increase participation and/or

to enhance performance in science,

mathematics, or technology education at

all levels; and

(v) Developing instructional materials

(e.g., teacher guides, printed

publications, computer software, and

videotapes) or networked information

services for education;

(3) Training grant. A training grant is

an agreement that provides funds

primarily for scholarships, fellowships,

or stipends to students, teachers, and/or

faculty.

(i) NASA training grants are awarded

to colleges, universities, or other nonprofit organizations; not to individual

students, teachers, or faculty members.

It is the responsibility of the institution

receiving the grant to approve the

faculty, teachers, and/or students who

will participate in the specific program,

in cooperation with NASA. If a student,

teacher, or faculty member ceases to

participate in the program for any

reason, the institution, with prior NASA

approval, may appoint another student,

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62905

teacher, or faculty member to complete

the remaining portion of the grant

period. Replacement students, teachers,

and/or faculty electing to apply for the

following program year are not

automatically entitled to an award and

are subject to the evaluation/selection

procedures administered to new

applicants. Any participant receiving

support under a NASA training grant

may not concurrently hold another

Federal fellowship or traineeship.

(ii) No applicant shall be denied

consideration or appointment on the

grounds of race, creed, color, national

origin, age, sex, or disability.

(iii) Students and faculty receiving

direct support under a NASA training

grant must be U.S. citizens, except for

those supported by the NASA Earth

System Science Fellowship Program,

the Graduate Student Fellowship in

Global Change Research Program, and

the GLOBE Program.

(iv) Duration of the award is program

specific. Refer to program policies and

procedures for details. Renewal is

contingent upon a successful

performance evaluation as prescribed by

the program, concurrence by the NASA

technical officer, and the availability of

funds.

(v) No substantial involvement is

expected between NASA and the

recipient. A student or faculty member

receiving support under a NASA

training grant does not incur any formal

obligation to the Government.

(vi) The use of training grant funds to

acquire equipment, or to acquire or

construct facilities will not be

permitted. Government furnished

equipment will not be provided.

(vii) An Administrative Report must

be submitted under the guidelines

described by the specific program

policies and procedures.

(4) Facilities grant. A facilities grant is

used to provide for the acquisition,

construction, use, maintenance, and

disposition of facilities. Facilities, as

used in this section, means property

used for production, maintenance,

research, development, or testing. Prior

approval by the Associate Administrator

of Procurement is required before

proceeding with a facilities grant. To

obtain prior approval, a package will be

forwarded to the Director, Program

Operations Division (HS), during the

planning phase of the grant, that

includes pertinent background

information, details on Congressional

Authorization, dollar value, and name

of the recipient. Other information, such

as a copy of the proposed facility grant

award document, is not required. It is

unlikely an award will be approved

unless specifically authorized by

Congress. A review by legal counsel to

assure legal sufficiency is also required.

(d) Cooperative agreement. A

cooperative agreement shall be used as

the legal instrument reflecting a

relationship between NASA and a

recipient whenever the principal

purpose is the transfer of anything of

value to the recipient to accomplish a

public purpose of support or

stimulation authorized by Federal

statute, and substantial involvement is

anticipated between NASA and the

recipient during performance of the

contemplated activity (31 U.S.C. 6305).

Characteristics inherent in a cooperative

agreement include those that apply to a

grant, plus the following:

(1) Substantial NASA involvement in

and contribution to the technical

aspects of the effort are necessary for its

accomplishment. This could involve an

active NASA role in collaborative

relations, access to a NASA site or

equipment, or sharing NASA facilities

and personnel. For example, a

university investigator could work for a

substantial amount of time at a NASA

Center, a NASA investigator could work

at a university, or when the

collaboration is such that a jointly

authored report or education curriculum

product is appropriate;

(2) The project, conducted as

proposed, would not be possible

without extensive NASA-recipient

technical collaboration;

(3) The nature of the collaboration

shall be clearly defined and specified in

the special condition at § 1260.51.

(e)(1) Grants and cooperative

agreements with foreign organizations.

Grants and cooperative agreements with

foreign organizations provide for

research to be performed in whole, or in

part, by a foreign organization, with

funding being provided by NASA to the

foreign organization as reimbursement

for the work performed.

(2) It is NASA policy that, in general,

research with foreign organizations will

not be conducted through grants or

cooperative agreements, but instead will

be accomplished on a no-exchange-offunds basis. In these cases, NASA enters

into agreements undertaking projects of

international scientific collaboration.

NASA policy on performing research

with foreign organizations on a noexchange-of-funds basis is set forth at

NFS 1835.016–70. In rare instances,

NASA may enter into an international

agreement under which funds will be

transferred to a foreign recipient.

(3) Grants and cooperative agreements

to foreign organizations are made on an

exceptional basis only. Awards require

the prior approval of the Headquarters

Office of External Relations (Code I) and

the Headquarters Office of the General

Counsel (Code G). Requests to award

foreign grants or cooperative agreements

are to be coordinated through the Office

of Procurement, Program Operations

Division (Code HS). Requests for

approval shall contain:

(i) The identity of the foreign entity,

the country or countries involved, and

the purpose of the grant or cooperative

agreement.

(ii) The Space Act Agreement(s) or

underlying international agreement

involved, if any.

(iii) A description of the effort to be

undertaken by the entity described in

paragraph (e)(3)(i) of this section,

including their dollar value.

(iv) The reason why the grant or

cooperative agreement requires a

placement with a foreign organization.

(v) The reason why the work can not

be accomplished on a no exchange of

funds basis.

(4) Grants and cooperative agreements

to foreign organizations require a review

by the Office of General Counsel.

(5) The requirements of this section

do not apply to the purchase of supplies

or services (excluding research) from

non-U.S. sources by U.S. grant or

cooperative agreement recipients, when

necessary to support research efforts.

(f)(1) The decision whether to use a

contract, grant or cooperative agreement

as an award instrument must be based

on the principal purpose of the

relationship. When NASA, within its

authority, enters into a transaction

where the principal purpose is to

accomplish a public purpose of support

or stimulation authorized by Federal

statute, a grant or a cooperative

agreement is the appropriate

instrument. Conversely, if the principal

purpose of a transaction is to

accomplish a NASA requirement, i.e., to

produce something for NASA’s own

use, a procurement contract is the

appropriate instrument. Two essential

questions must be asked to ensure that

a grant or cooperative agreement is the

appropriate instrument. The first

question is: Will NASA be directly

harmed in furthering a specific NASA

mission requirement if the effort is not

accomplished? The answer to this

question must be ‘‘no.’’ The second

question is: Is the work being performed

by the recipient primarily for its own

purposes, which NASA is merely

supporting with financial or other

assistance? The answer to this question

must be ‘‘yes.’’ If these criteria are met,

then the effort is not a NASA

requirement, and can then be

considered as to whether it supports or

stimulates a public purpose.

62906 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

(2) In applying the principal purpose

test, it must be determined whether the

Government is the direct beneficiary or

user of the activity. If NASA provides

the specifications for the project; or is

having the project completed based on

its own identified needs; or will directly

use the report or result of the project for

a scheduled NASA mission, then, in

most cases, the principal purpose is to

acquire property or services for the

direct benefit or use of NASA, and thus,

a contractual relationship exists.

However, there may be cases where

NASA expects to derive some incidental

use or benefit from funded activities. In

fact, any extramural expenditure that

furthers the Agency’s goals or mission

can be said to be of benefit or use to the

Government. But not every expenditure

produces for the Government a benefit

or use that is direct; i.e., immediate,

uninterrupted, or specific. Where an

expenditure will produce a benefit or

use that is only indirect in nature, a

grant or cooperative agreement may be

used.

(3) The status of the entity involved

is not a primary factor in determining

the appropriate award instrument. For

example, an entity that operates on a

non-profit basis may receive funding

through a contract, and is not limited to

receiving grants or cooperative

agreements. Similarly, a profit-making

firm may receive funding through

grants, cooperative agreements, or

contracts.

(4) NASA offices may be mandated

through their missions to support

specific scientific, educational, or

training programs. The office may be

accountable to NASA management, the

Administration, or Congress for

oversight and proper implementation of

the program, may require direct

oversight, may be directly accountable

for the results of the program and that

the work be successfully completed.

Whenever the office requesting the grant

or cooperative agreement would be

directly harmed in performing its

mission if an award was not made, a

grant or cooperative agreement is not

appropriate. Specific examples of

situations requiring special scrutiny

include—

(i) Education grants that for the

administration of a program for which

the education office is directly

responsible;

(ii) Research or education grants to

establish and support university

laboratories on a non-competitive basis,

with the resulting work of direct benefit

to NASA; or

(iii) Training grants that hire

university students, on a noncompetitive basis, to perform work at a

NASA Center in direct support of NASA

personnel, and perform work which is

required in support of a NASA mission.

(5) A grant may be used to provide

funding to an association to hold a

conference (among its members and

NASA officials) where the benefits flow

primarily to the association and its

members, not to NASA. The principal

purpose will be to advance research or

other purposes of the association. Thus,

NASA may not direct an association in

arranging the conference or in providing

other services for NASA’s benefit. The

conference should be run by the

association, not by NASA. Conferences

sponsored or initiated by NASA

primarily to meet a specific NASA need

or obtain information for the direct

benefit of NASA must be supported by

means of a contract.

§ 1260.13 Award procedures.

(a) Award instruments are classified

as follows:

(1) Annual grants are grants awarded

for a short term (e.g., on an annual

basis).

(2) Multiple year grants support

research projects that may span several

years. NASA policy is to make

maximum use of multiple year grants. A

Multiple Year Grant is generally

selected for a period of three years in

keeping with NASA’s policy calling for

research to be peer reviewed at least

every three years. Grants with periods of

performance in excess of three years

may be appropriate when the NASA

technical office determines at the

inception of the grant that a period of

performance in excess of three years is

necessary to complete a discrete

research effort.

(i) If the decision to provide multiple

year funding to a research proposal is

made, the special condition at

§ 1260.52, Multiple Year Grant or

Cooperative Agreement, will be

included in the award.

(ii) Periods approved under the

Multiple Year Grant or Cooperative

Agreement special condition at

§ 1260.52, and funded at the levels

specified in the special condition, are

not considered to be new awards.

Therefore, new proposals, new

proposal-related certifications (such as

Disclosure of Lobbying Activities, and

Debarment and Suspension), new

technical evaluations, and new budget

proposals are not required, as long as

this information for the multiple year

period was reviewed and approved as

part of the original proposal.

(iii) If NASA program constraints or

developments within the research

project dictate a reduction in the

funding level specified under a Multiple

Year Grant period, research may

continue at the reduced level under the

terms of the provisions; however, the

recipient may rebudget under the grant

provisions to keep the project within the

funding actually provided.

(3) An augmentation to a grant may be

issued as a supplement at any time

when work is introduced which is

outside the scope of the approved

proposal or when there is a need for

substantial unanticipated funding. The

grant officer must first determine

whether the augmentation requires a

separate approval as a non-competitive

addition to the work to be performed

under the grant. Augmentations require

the submission of revised budget

proposals and technical evaluations

covering the additional work. Since

augmentations will be performed within

the existing period of performance,

certifications will not normally be

required.

(4) A grant extension may be placed

to extend the grant beyond the

expiration date, in accordance with the

provision at § 1260.23, Extensions, if

additional time beyond the established

period of performance is required to

assure adequate completion of the

original scope of work within the

available funding.

(5) Grant renewals provide for

continuation of research beyond the

original scope, period of performance

and funding levels; therefore, new

proposals, certifications and technical

evaluations are required prior to the

execution of a grant renewal. Grant

renewals will be awarded as new grants.

Continued performance within a period

specified under the Multiple Year Grant

provision does not constitute a renewal.

For research originally awarded through

a competitive NRA, CAN, or other

competitive announcement that has

completed its period of performance,

peer review of a proposal to continue

the research should be accomplished

prior to selecting the research grant for

renewal. If the effort was originally

awarded through an unsolicited

proposal, a new justification to accept

the unsolicited proposal would be

required (however, also see

§ 1260.12(f)(1)). Multiple year grant

special conditions may be incorporated

into renewals.

(b) While NASA normally provides

full funding support for research grants,

alternate methods of grant funding are

as follows:

(1) Since NASA grant recipients

usually gain no measurable commercial

or economic benefit from grants, other

than conducting research, cost sharing

for research grants is not generally

required. NASA may, however, accept

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62907

cost sharing when voluntarily offered.

Additionally, in instances when the

grant officer determines that the

recipient will benefit from the research

results through sales to non-Federal

entities, cost sharing based upon this

mutuality of interest will apply. See

§ 1260.123. When cost sharing is used,

the grant officer shall insert a Special

Condition substantially as shown in

§ 1260.54, Cost Sharing. (See 14 CFR

part 1274 for grants and cooperative

agreements with commercial

organizations involving cost sharing.)

(2) NASA may provide partial support

for a research project or conference

where additional funding is being

provided by other Federal agencies. If

the grant also involves cost sharing by

the recipient, the grant officer will

ensure that the recipient’s share does

not include any Federal funds.

§ 1260.14 Limitations.

(a) NASA does not award grants

merely to provide donative assistance

no matter how worthy the purpose, but

to the extent that appropriations are

available to carry out authorized Agency

programs. Research in any academic

discipline related to NASA interests

normally will qualify. However, advice

of legal counsel should be sought in

unusual situations, or when unusual

project activities or organizational

attributes are evident.

(b) It is NASA’s policy that nonmonetary (zero dollar) grants or

cooperative agreements shall not be

used, except for no-cost extensions.

(c) Loans of Government personal

property not associated with a contract,

grant, or cooperative agreement under

31 U.S.C. 6301 to 6308, and made under

the Space Act of 1958, should be

consummated as loan agreements. Also,

excess Government research property

may be donated to educational

institutions and nonprofit organizations

pursuant to 15 U.S.C. 3710(I). See

§ 1260.133(a)(2).

(d) Neither grants nor cooperative

agreements shall be used as legal

instruments for consulting service

arrangements.

§ 1260.15 Format and numbering.

(a) A grant shall be brief, containing

only those provisions and special

conditions necessary to protect the

interests of the Government.

(b) Cover page formats shown in

Exhibit B to subpart A of this Part 1260

shall be used for all NASA grant and

cooperative agreement award

documents. Provisions for grants with

U.S. organizations shall be incorporated

by reference, and preprinted checklists

may be used (Exhibit C to subpart A of

this part 1260). Both special conditions

and provisions for grants with foreign

organizations will be printed in full text.

An acceptance block may be added

when the grant officer finds it necessary

to require bilateral execution of the

grant. Program budgets are not generally

attached to the award document. When

it is necessary to attach the budget due

to revisions to the original proposed

budget or other reasons, this

information should be suitably marked

as confidential, and is not be disclosed

outside of the Government without the

consent of the grantee.

(c) The Identification Numbering

System to be used prior to Integrated

Financial Management Project (IFMP)

implementation will be applied as

follows:

(1) For research, education, and

facilities grants, numbering shall

conform to (NFS) 48 CFR 1804.7102(a)

by including the Center Identification

Number, except that a NAG prefix will

be used in lieu of the NAS prefix (e.g.,

NAG5 would be the Goddard prefix

designation). They will be sequentially

numbered.

(2) Cooperative agreements will use

the prefix NCC plus the Center

Identification Number. They will be

sequentially numbered.

(3) Training grants will use the prefix

NGT plus the Center Identification

Number. They will be sequentially

numbered.

(4) The Catalog of Federal Domestic

Assistance (CFDA) Numbers does not

apply to NASA grants.

(d) The Identification Numbering

System will be revised after IFMP

implementation. There will be a phasein term for Center implementation of the

IFMP. For centers using IFMP

Performance Purchasing; the following

numbering system shall be used for new

awards (awards made prior to

conversation to IFMP will retain

previously assigned numbers):

(1) Document Type for grants. For

research, education, facilities, and

training grants, the document type

prefix GR shall be used.

(2) Document Type for cooperative

agreements. Cooperative agreements

will use the prefix CO.

(3) Agency Identifier. The Agency

identifier NAS shall follow the

document number.

(4) Center Smart Codes. The Center

identifier shall follow the document

type:

Installation Smart

code

Ames Research Center ................ A

Dryden Flight Research Center .... D

Installation Smart

code

Glenn Research Center ................ C

Goddard Space Flight Center ...... G

Headquarters ................................ H

Johnson Space Center ................. J

Kennedy Space Center ................ K

Langley Research Center ............. L

Marshall Space Flight Center ....... M

NASA Management Office—JPL P

Stennis Space Center .................. S

(5) Fiscal Year. The fiscal year shall

be represented as two digits.

(6) Procurement Code. ‘‘G’’ will be

used as the procurement code to

identify grants. Cooperative Agreements

will be identified using ‘‘A’’ as the

procurement code.

(7) Serial Numbers. Installations shall

number grants and cooperative

agreements serially by fiscal year. The

serial number shall be six digits

commencing with ‘‘000001’’ and

continuing in succession.

(8) As an example of the above set

forth methodology, the first two grants

awarded by Marshall Space Flight

Center in fiscal year 1999 would be

GRNASM99G000001 and

GRNASM99G000002.

(9) The Catalog of Federal Domestic

Assistance (CFDA) Numbers does not

apply to NASA grants.

§ 1260.16 Distribution.

(a) Copies of grants and supplements

will be provided to—

(1) Payment offices (original copy);

(2) Technical officers;

(3) Administrative grant officers when

delegated;

(4) The NASA Center for AeroSpace

Information (CASI), Attn: Document

Processing Section, 7121 Standard

Drive, Hanover, MD 21076; and

(5) Other appropriate offices as

determined by the grant officer.

(b) In addition to receipt of grants and

supplements, the administrative grant

officer will receive a copy of the

approved budget.

(c) The file will record the addresses

for distribution.

Provisions

§ 1260.20 Provisions.

(a) Research grants, education grants,

and cooperative agreements with U.S.

educational institutions and nonprofit

organizations shall incorporate by

reference the provisions set forth in

§§ 1260.21 through 1260.38. Training

grants shall incorporate by reference the

provisions set forth in §§ 1260.21

through 1260.38, except that the grant

officer will substitute § 1260.22,

Technical Publications and Reports,

62908 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

with reporting requirements as specified

by the program office.

(b) Facilities grants provisions will be

selected on a case-by-case basis (see

§ 1260.50).

(c) Research grants awarded to foreign

organizations, when approved by

Headquarters, will include the following

provisions at a minimum: §§ 1260.21,

1260.22, 1260.23, 1260.24, 1260.25,

1260.26, 1260.27, 1260.29, 1260.33,

1260.35, 1260.36 and 1260.37.

Additional special conditions will be

selected on a case by case basis (see

§ 1260.50). All provisions will be

provided in full text. Referenced

handbooks, statutes, or other

regulations, which the recipient may not

have access to, must be made available

when requested by the foreign

organization.

(d) The provisions set forth at

§§ 1260.21 through 1260.38 do not

apply to awards made under the Federal

Demonstration Partnership (FDP). FDP

awards are subject to the FDP Phase III

General Terms and Conditions and the

NASA Agency Specific Requirements

Modifications to the General Terms and

Conditions (Exhibit D to subpart A of

this part 1260). Since these documents

are provided directly to the FDP

institutions, they are not to be attached

to FDP grants. However, the grant officer

will include a statement similar to the

following on FDP grants: ‘‘The Federal

Demonstration Partnership General

Terms and Conditions and NASA

Agency-specific Requirements apply to

this award.’’

(e) Grants or cooperative agreements

awarded by NASA to the Commercial

Space Centers under the Space

Development and Commercial Research

(SDCR) Program require special

conditions in addition to those set forth

at §§ 1260.21 through 1260.38. SDCR

Special Conditions are required to be

included in full text for all SDCR Grants

and Cooperative Agreements (Exhibit E

to subpart A of this part 1260). Changes

or additions to these Special Conditions

must be approved by the Office of Space

Utilization and Product Development

(Code UM) prior to the award of the

grant. Requests for changes or additions

are to be coordinated through the Office

of Procurement, Program Operations

Division (Code HS).

(f) Grants and cooperative agreements

awarded by NASA to commercial

organizations where cost sharing is not

required shall incorporate the

provisions set forth at §§ 1260.21

through 1260.38, modified as set forth

under 1260.4(b).

(g) Grants and cooperative agreements

not specifically classified elsewhere in

this section, but that are awarded for

other authorized purposes, shall include

provisions selected on a case-by-case

basis.

(h) Whenever the word ‘‘grant’’

appears in §§ 1260.21 through 1260.38,

it shall be deemed to include, as

appropriate, the term ‘‘cooperative

agreement.’’

§ 1260.21 Compliance With OMB Circular

A–110.

Compliance With OMB Circular A–110

October 2000

This grant or cooperative agreement is

subject to the requirements set forth in OMB

Circular A–110, Uniform Administrative

Requirements for Grants and Agreements

with Institutions of Higher Education,

Hospitals, and Other Non-Profit

Organizations. Recipients are required to

comply with the requirements of A–110, as

adopted by NASA as subpart B of Part 1260

of Title 14 of the Code of Federal

Regulations. Specific provisions set forth in

this award document are provided to

supplement and clarify, not replace, the

Circular, except in circumstances where a

waiver from Circular requirements has been

obtained by NASA.

[End of provision]

§ 1260.22 Technical publications and

reports.

(This provision describes standard

reporting requirements that should be

applied in most circumstances. The

requirements set forth under this provision

may be modified by the grant officer based

on specific report needs for the grant or

cooperative agreement, provided that

reporting requirements do not conflict with

§ 1260.151. Any special reporting

requirements will be set forth as a special

condition in the award document.)

Technical Publications and Reports

October 2000

(a) NASA encourages the widest

practicable dissemination of research results

at any time during the course of the

investigation.

(1) All information disseminated as a result

of the grant shall contain a statement which

acknowledges NASA’s support and identifies

the grant by number (e.g., ‘‘The material is

based upon work supported by NASA under

award No(s) GRNASM99G000001, etc.’’).

(2) Except for articles or papers published

in scientific, technical, or professional

journals, the exposition of results from NASA

supported research should also include the

following disclaimer: ‘‘Any opinions,

findings, and conclusions or

recommendations expressed in this material

are those of the author(s) and do not

necessarily reflect the views of the National

Aeronautics and Space Administration.’’

(b) Reports shall be in the English

language, informal in nature, and ordinarily

not exceed three pages (not counting

bibliographies, abstracts, and lists of other

media). The recipient shall submit the

following reports:

(1) A Progress Report for all but the final

year of the grant. Each report is due 60 days

before the anniversary date of the grant and

shall briefly describe what was accomplished

during the reporting period as outlined in

§ 1260.151(d). A special condition specifying

more frequent reporting may be required.

(2) A Summary of Research (or Educational

Activity Report in the case of Education

Grants) is due within 90 days after the

expiration date of the grant, regardless of

whether or not support is continued under

another grant. This report shall be a

comprehensive summary of significant

accomplishments during the duration of the

grant.

(c) Progress Reports, Summaries of

Research, and Educational Activity Reports

shall include the following on the first page:

(1) Title of the grant.

(2) Type of report.

(3) Name of the principal investigator.

(4) Period covered by the report.

(5) Name and address of the recipient’s

institution.

(6) Grant number.

(d) Progress Reports, Summaries of

Research, and Educational Activity Reports

shall be distributed as follows:

(1) The original report, in both hard copy

and electronic format, to the Technical

Officer.

(2) One copy to the NASA Grant Officer,

with a notice to the Administrative Grant

Officer, (when administration of the grant has

been delegated to ONR), that a report was

sent.

(e) For Summaries of Research and

published reports, one micro-reproducible

copy shall also be sent to the NASA Center

for AeroSpace Information (CASI), Attn:

Document Processing Section, 7121 Standard

Drive, Hanover, MD 21076.

[End of provision]

§ 1260.23 Extensions.

Extensions

October 2000

(a) It is NASA policy to provide maximum

possible continuity in funding grantsupported research and educational

activities, therefore, grants may be extended

for additional periods of time when

necessary to complete work that was part of

the original award. NASA generally only

approves such extensions within funds

already made available. Any extension that

would require additional funding must be

supported by a proposal submitted at least

three months in advance of the expiration

date of the grant.

(b) In accordance with § 1260.125(e)(2),

Recipients may extend the expiration date of

a grant if additional time beyond the

established expiration date is required to

assure adequate completion of the original

scope of work within the funds already made

available. For this purpose, the recipient may

make a one-time no-cost extension, not to

exceed 12 months, prior to the established

expiration date. Written notification of such

an extension, with the supporting reasons,

must be received by the NASA Grant Officer

at least ten days prior to the expiration of the

award. A copy of the extension must also be

forwarded to cognizant Office of Naval

Research office. NASA reserves the right to

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disapprove the extension if the requirements

set forth at § 1260.125(e)(2) are not met.

(c) Requests for approval for all other nocost extensions must be submitted in writing

to the NASA Grant Officer. Copies are to be

forwarded to the cognizant Office of Naval

Research office.

[End of provision]

§ 1260.24 Termination and enforcement.

Termination and Enforcement

October 2000

Termination and enforcement conditions

of this award are specified in §§ 1260.160

through 1260.162.

[End of provision]

§ 1260.25 Change in principal investigator

or scope.

Change in Principal Investigator or Scope

October 2000

The following guidance is provided as an

amplification to prior approval requirements

set forth at § 1260.125(c):

(a) The Recipient shall obtain the approval

of the NASA Grant Officer for a change of the

Principal Investigator, or for a significant

absence of the Principal Investigator from the

project, defined as a three month absence

from the program or a 25 percent reduction

in time devoted to the project. Significantly

reduced availability of the services of the

Principal Investigator(s) named in the grant

instrument could be grounds for termination,

unless alternative arrangements are made and

approved in writing by the Grant Officer.

(b) Prior written approval is required from

NASA if there is to be a significant change

in the objective or scope.

[End of provision]

§ 1260.26 Financial management.

Financial Management

October 2000

(a) Advance payments by electronic funds

transfer will be made by the Financial

Management Office of the NASA Center

which issued the grant in accordance with

procedures provided to the recipient. The

Recipient shall submit Federal Cash

Transaction Reports (SF 272) to the

aforementioned office and to the

Administrative Grant Officer (if NASA has

delegated administration) within 15 working

days following the end of each Federal fiscal

quarter, containing current estimates of the

cash requirements for each of the four

months following the quarter being reported.

There will be a phase-in term for NASA

adoption of an automated 272 system not

requiring the forecast estimates. It is

anticipated that this forecast requirement

will be deleted no later than October 1, 2001.

The final SF 272 is due within 90 days after

the expiration date of the grant. The final SF

272 shall be submitted to the Financial

Management Office, with copies sent to the

NASA Grant Officer, and to the

Administrative Grant Officer when the Office

of Naval Research (ONR) has been delegated

grant closeout responsibilities.

(b) Unless otherwise directed by the Grant

Officer, any unexpended balance of funds

which remains at the end of any funding

period, except the final funding period of the

grant, shall be carried over to the next

funding period, and may be used to defray

costs of any funding period of the grant. This

includes allowing the carry over of funds to

the second and subsequent years of a

multiple year grant. This provision also

applies to subcontractors performing

substantive work under the grant. For grant

renewals, the estimated amount of

unexpended funds shall be identified in the

grant budget section of the recipient’s

renewal proposal. NASA reserves the right to

remove unexpended balances from grants

when insufficient efforts have been made by

the grantee to liquidate funding balances in

a timely fashion.

[End of provision]

§ 1260.27 Equipment and other property.

Equipment and Other Property

October 2000

(a) NASA permits acquisition of special

purpose and general purpose equipment

specifically required for use exclusively for

research activities.

(1) Acquisition of special purpose or

general purpose equipment costing in excess

of $5,000 (unless a lower threshold has been

established by the Recipient) and not

included in the approved proposal budget,

requires the prior approval of the NASA

Grant Officer. Grant awards under the

Federal Demonstration Partnership are

exempt from this requirement. Requests to

the NASA Grant Officer for the acquisition of

equipment shall be supported by written

documentation setting forth the description,

purpose, and acquisition value of the

equipment, and including a written

certification that the equipment will be used

exclusively for research, activities. (A change

in the model number of a prior approved

piece of equipment does not require

resubmission for that item.)

(2) Special purpose and general purpose

equipment costing in excess of $5,000 (unless

a lower threshold has been established by the

Recipient) acquired by the recipient under a

grant or cooperative agreement for the

purpose of research shall be titled to the

Recipient as ‘‘exempt’’ without further

obligation to NASA, including reporting of

the equipment, in accordance with

§ 1260.133(b). Special purpose or general

purpose equipment costing in excess of

$5,000 (unless a lower threshold has been

established by the Recipient) acquired by the

Recipient under a grant or cooperative

agreement for non-research work shall be

titled to the Recipient in accordance with

§ 1260.134.

(3) Special purpose or general purpose

equipment acquired by the Recipient with

grant funds, valued under $5,000 (unless a

lower threshold is established by the

Recipient) are classified as ‘‘supplies,’’ do not

require the prior approval of the NASA Grant

Officer, shall vest in the Recipient and will

be titled to the Recipient in accordance with

§ 1260.135.

(4) Grant funds may be expended for the

acquisition of land or interests therein or for

the acquisition and construction of facilities

only under a facilities grant, as defined in

§ 1260.12(c)(4).

(b) The Recipient shall submit an annual

Inventory Report, to be received no later than

October 31 of each year, which lists all

reportable (non-exempt equipment and/or

Federally owned property) in its custody as

of September 30. Negative responses for

annual Inventory Reports (when there is no

reportable equipment) are not required. A

Final Inventory Report of Federally Owned

Property, including equipment where title

was taken by the Government, will be

submitted by the Recipient no later than 60

days after the expiration date of the grant.

Negative responses for Final Inventory

Reports are required.

(1) All reports will include the information

listed in paragraph (f)(1) of § 1260.134,

Equipment. No specific report form or format

is required, provided that all necessary

information set forth at § 1260.134(f)(1) is

provided.

(2) The original of each report shall be

submitted to the Deputy Chief Financial

Officer (Finance). Copies shall be furnished

to the Center Industrial Property Officer and

to ONR.

[End of provision]

§ 1260.28 Patent rights.

Patent Rights

October 2000

As stated at § 1260.136, this award is

subject to the provisions of 37 CFR 401.3(a)

which requires use of the standard clause set

out at 37 CFR 401.14 ‘‘Patent Rights (Small

Business Firms and Nonprofit

Organizations)’’ and the following:

(a) Where the term ‘‘contract’’ or

‘‘Contractor’’ is used in the ‘‘Patent Rights’’

clause, the term shall be replaced by the term

‘‘grant’’ or ‘‘Recipient,’’ respectively.

(b) In each instance where the term

‘‘Federal Agency,’’ ‘‘agency,’’ or ‘‘funding

Federal agency’’ is used in the ‘‘Patent

Rights’’ clause, the term shall be replaced by

the term ‘‘NASA.’’

(c) The following item is added to the end

of paragraph (f) of the ‘‘Patent Rights’’ clause:

‘‘(5) The Recipient shall include a list of any

Subject Inventions required to be disclosed

during the preceding year in the performance

report, technical report, or renewal proposal.

A complete list (or a negative statement) for

the entire award period shall be included in

the summary of research.’’

(d) The term ‘‘subcontract’’ in paragraph (g)

of the ‘‘Patent Rights’’ clause shall include

purchase orders.

(e) The NASA implementing regulation for

paragraph (g)(2) of the ‘‘Patent Rights’’ clause

is at 48 CFR 1827.304–4(a)(i)(B).

(f) The following requirement constitutes

paragraph (l) of the ‘‘Patent Rights’’ clause:

‘‘(l) Communications. A copy of all

submissions or requests required by this

clause, plus a copy of any reports,

manuscripts, publications or similar material

bearing on patent matters, shall be sent to the

Center Patent Counsel and the NASA Grant

Officer in addition to any other submission

requirements in the grant provisions. If any

reports contain information describing a

‘‘subject invention’’ for which the recipient

62910 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

has elected or may elect to retain title, NASA

will use reasonable efforts to delay public

release by NASA or publication by NASA in

a NASA technical series until an application

filing date has been established, provided

that the Recipient identify the information

and the ‘‘subject invention’’ to which it

relates at the time of submittal. If required by

the NASA Grant Officer, the Recipient shall

provide the filing date, serial number and

title, a copy of the patent application, and a

patent number and issue date for any

‘‘subject invention’’ in any country in which

the Recipient has applied for patents.’’

(g) NASA Inventions. NASA will use

reasonable efforts to report inventions made

by NASA employees as a consequence of, or

which bear a direct relation to, the

performance of specified NASA activities

under this agreement and, upon timely

request, will use reasonable efforts to grant

the Recipient an exclusive, or partially

exclusive, revocable, royalty-bearing license,

subject to the retention of a royalty-free right

of the Government to practice or have

practiced the invention by or on behalf of the

Government.

(h) In the event NASA contractors are

tasked to perform work in support of

specified activities under a cooperative

agreement and inventions are made by

Contractor employees, the Recipient will

normally retain title to its employee

inventions in accordance with 35 U.S.C. 202,

14 CFR Part 1245, and Executive Order

12591. In the event the Recipient decides not

to pursue rights to title in any such invention

and NASA obtains title to such inventions,

NASA will use reasonable efforts to report

such inventions and, upon timely request,

will use reasonable efforts to grant the

Recipient an exclusive, or partially exclusive,

revocable, royalty-bearing license, subject to

the retention of a royalty-free right of the

Government to practice or have practiced the

invention by or on behalf of the Government.

[End of provision]

§ 1260.29 Reserved.

§ 1260.30 Rights in data.

(The grant officer may revise the language

under this provision to modify each party’s

rights based on the particular circumstances

of the program and/or the recipient’s need to

protect specific proprietary information. Any

modification to the standard language set

forth under the provision requires the

concurrence of the Center’s Patent Counsel

and that the provision be printed in full text.)

Rights in Data

October 2000

(a) Fully Funded Efforts.

(1) ‘‘Data’’ means recorded information,

regardless of form, the media on which it

may be recorded, or the method of recording.

The term includes, but is not limited to, data

of a scientific or technical nature, computer

software and documentation thereof, and

data comprising commercial and financial

information.

(2) The Recipient grants to the Federal

Government, a royalty-free, nonexclusive and

irrevocable license to use, reproduce,

distribute (including distribution by

transmission) to the public, perform publicly,

prepare derivative works, and display

publicly, data in whole or in part and in any

manner for Federal purposes and to have or

permit others to do so for Federal purposes

only.

(3) In order that the Federal Government

may exercise its license rights in data, the

Federal Government, upon request to the

Recipient, shall have the right to review and/

or obtain delivery of data resulting from the

performance of work under this grant, and

authorize others to receive data to use for

Federal purposes.

(b) Cost Sharing and/or Matching Efforts.

When the Recipient cost shares with the

Government on the effort, the following

paragraph applies:

‘‘(1) In the event data first produced by

Recipient in carrying out Recipient’s

responsibilities under an agreement is

furnished to NASA, and Recipient considers

such data to embody trade secrets or to

comprise commercial or financial

information which is privileged or

confidential, and such data is so identified

with a suitable notice or legend, the data will

be maintained in confidence and disclosed

and used by the Government and its

Contractors (under suitable protective

conditions) only for experimental,

evaluation, research and development

purposes, by or on behalf of the Government

for an agreed to period of time, and thereafter

for Federal purposes as defined in

§ 1260.30(a)(2).’’

(c) For Cooperative Agreements the

following paragraph applies:

‘‘(1) As to data first produced by NASA in

carrying out NASA’s responsibilities under a

cooperative agreement and which data would

embody trade secrets or would comprise

commercial or financial information that is

privileged or confidential if it has been

obtained from the Recipient, such data will

be marked with an appropriate legend and

maintained in confidence for 5 years (unless

a shorter period has been agreed to between

the Government and Recipient) after

development of the information, with the

express understanding that during the

aforesaid period such data may be disclosed

and used (under suitable protective

conditions) by or on behalf of the

Government for Government purposes only,

and thereafter for any purpose whatsoever

without restriction on disclosure and use.

Recipient agrees not to disclose such data to

any third party without NASA’s written

approval until the aforementioned restricted

period expires.’’

[End of provision]

§ 1260.31 National security.

National Security

October 2000

Normally, NASA grants do not involve

classified information. However, if it is

known in advance that a grant involves

classified information or if the work on the

grant is likely to develop classified

information, individuals performing on the

grant who will have access to the information

must obtain the appropriate security

clearance in advance of performing on the

grant, in accordance with NASA Policy

Guidance (NPG) 1620.1, Security Procedures

and Guidelines. When access to classified

information is not originally anticipated in

the performance of a grant, but such

information is subsequently sought or

potentially developed by the grant Recipient,

the NASA Grant Officer who issued the grant

shall be notified immediately, and prior to

work under the grant proceeding, to

implement the appropriate clearance

requirements.

[End of provision]

§ 1260.32 Nondiscrimination.

Nondiscrimination

October 2000

(a) To the extent provided by law and any

applicable agency regulations, this award and

any program assisted thereby are subject to

the provisions of Title VI of the Civil Rights

Act of 1964 (Pub. L. 88–352), Title IX of the

Education amendments of 1972 (Pub. L. 92–

318, 20 U.S.C. 1681 et seq.), section 504 of

the Rehabilitation Act of 1973 (29 U.S.C.

794), the Age Discrimination Act of 1975

(Pub. L. 94–135), the implementing

regulations issued pursuant thereto by

NASA, and the assurance of compliance

which the recipient has filed with NASA.

(b) The Recipient shall obtain from each

organization that applies or serves as a

subrecipient, Contractor or subcontractor

under this award (for other than the

provision of commercially available supplies,

materials, equipment, or general support

services) an assurance of compliance as

required by NASA regulations.

(c) Work on NASA grants is subject to the

provisions of Title VI of the Civil Rights Act

of 1964 (Pub. L. 88–352; 42 U.S.C. 2000d-l),

Title IX of the Education Amendments of

1972 (20 U.S.C. 1680 et seq.), Section 504 of

the Rehabilitation Act of 1973, as amended

(29 U.S.C. 794), the Age Discrimination Act

of 1975 (42 U.S.C. 6101 et seq.), and the

NASA implementing regulations (14 CFR

parts 1250, 1251, and 1252).

[End of provision]

§ 1260.33 Subcontracts.

Subcontracts

October 2000

(a) Recipients shall notify NASA when a

subcontract award will be made that falls

within the thresholds established at

§ 1260.144(e). When pre-award review of a

subcontract is requested by the NASA Grant

Officer in accordance with § 1260.144(e), the

following specific documents will be made

available to the NASA Grant Officer. (The

Grant Officer can request additional

documents):

(1) A copy of the proposed subcontract.

(2) The basis for subcontractor selection.

(3) Justification for lack of competition

when competitive bids or offers are not

obtained.

(4) The subcontract budget and basis for

subcontract cost or price.

(b) The Recipient (with the exception of

foreign organizations) shall utilize small

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62911

business concerns, small disadvantaged

business concerns, Historically Black

Colleges and Universities, minority

educational institutions, and women-owned

small business concerns as subcontractors to

the maximum extent practicable.

[End of provision]

§ 1260.34 Clean air and water.

Clean Air and Water

October 2000

(Applicable only if the award exceeds

$100,000, or a facility to be used has been the

subject of a conviction under the Clean Air

Act (42 U.S.C. 1857c–8(c)(1) or the Federal

Water Pollution Control Act (33 U.S.C.

1319(c)), and is listed by EPA, or if the award

is not otherwise exempt). The Recipient

agrees to the following:

(a) Comply with applicable standards,

orders or regulations issued pursuant to the

Clean Air Act, as amended (42 U.S.C. 7401

et seq.) and of the Federal Water Pollution

Control Act (33 U.S.C. 1251 et seq.).

(b) Ensure that no portion of the work

under this award will be performed in a

facility listed on the Environmental

Protection Agency (EPA) List of Violating

Facilities on the date that this award was

effective unless and until the EPA eliminates

the name of such facility or facilities from

such listings.

(c) Use its best efforts to comply with clean

air standards and clean water standards at

the facility in which the award is being

performed.

(d) Insert the substance of the provisions of

this clause into any nonexempt subaward or

contract under the award.

(e) Report violations to NASA or to EPA.

[End of provision]

§ 1260.35 Investigative requirements.

Investigative Requirements

October 2000

(a) As requested by NASA, the Recipient of

each grant, and any other individuals to

perform on the grant, agree to provide

sufficient personal/biographical information

necessary to conduct an investigation of the

individual’s background. The purpose of the

investigation is to allow access to a NASA

Center, or to NASA information, for

performance of this grant. The Recipient

acknowledges that NASA reserves the right

to perform security checks, and to deny or

restrict access to a NASA Center, facility,

computer system, or technical information as

appropriate.

(b) All visit requests must be submitted in

a timely manner in accordance with

instructions provided by the Center(s) to be

visited.

[End of provision]

§ 1260.36 Travel and transportation.

Travel and Transportation

October 2000

(a) The Fly American Act, 49 U.S.C. 1517,

requires the Recipient to use U.S. flag air

carriers for international air transportation of

personnel and property to the extent that

service by those carriers is available.

(b) Department of Transportation

regulations, 49 CFR Part 173, govern

Recipient shipment of hazardous materials

and other items.

[End of provision]

§ 1260.37 Safety.

Safety

October 2000

(a) The Recipient shall act responsibly in

matters of safety and shall take all reasonable

safety measures in performing under this

grant or cooperative agreement. The

Recipient shall comply with all applicable

federal, state, and local laws relating to

safety. The Recipient shall maintain a record

of, and will notify the NASA Grant Officer

immediately (within one workday) of any

accident involving death, disabling injury or

substantial loss of property in performing

this grant or cooperative agreement. The

Recipient will immediately (within one

workday) advise NASA of hazards that come

to its attention as a result of the work

performed.

(b) Where the work under this grant or

cooperative agreement involves flight

hardware, the hazardous aspects, if any, of

such hardware will be identified, in writing,

by the Recipient. Compliance with this

provision by subcontractors shall be the

responsibility of the Recipient.

[End of provision]

§ 1260.38 Drug-free workplace.

Drug-Free Workplace

October 2000

(a) Definitions. As used in this provision—

Controlled substance means a controlled

substance in schedules I through V of section

202 of the Controlled Substances Act (21

U.S.C. 812) and as further defined in

regulation at 21 CFR 1308.11 through

1308.15.

Conviction means a finding of guilt

(including a plea of nolo contendere) or

imposition of sentence, or both, by any

judicial body charged with the responsibility

to determine violations of the Federal or

State criminal drug statutes.

Criminal drug statute means a Federal or

non-Federal criminal statute involving the

manufacture, distribution, dispensing,

possession, or use of any controlled

substance.

Drug-free workplace means the site(s) for

the performance of work done by the

Recipient in connection with a specific grant

or cooperative agreement at which employees

of the Recipient are prohibited from engaging

in the unlawful manufacture, distribution,

dispensing, possession, or use of a controlled

substance.

Employee means an employee of a

Recipient directly engaged in the

performance of work under a Government

grant or cooperative agreement. ‘‘Directly

engaged’’ is defined to include all direct cost

employees and any other Recipient employee

who has other than a minimal impact or

involvement in performance of the grant or

cooperative agreement.

Individual means a Proposer/Recipient that

has no more than one employee including

the Proposer/Recipient.

(b) The Recipient, if other than an

individual, shall—within 30 days after award

(unless a longer period is agreed to in

writing), or as soon as possible for grants and

cooperative agreements of less than 30 days

performance duration—

(1) Publish a statement notifying its

employees that the unlawful manufacture,

distribution, dispensing, possession, or use of

a controlled substance is prohibited in the

Recipient’s workplace and specifying the

actions that will be taken against employees

for violations of such prohibition;

(2) Establish an ongoing drug-free

awareness program to inform such employees

about—

(i) The dangers of drug abuse in the

workplace;

(ii) The Recipient’s policy of maintaining

a drug-free workplace;

(iii) Any available drug counseling,

rehabilitation, and employee assistance

programs; and

(iv) The penalties that may be imposed

upon employees for drug abuse violations

occurring in the workplace;

(3) Provide all employees engaged in

performance of the grant or cooperative

agreement with a copy of the statement

required by paragraph (b)(1) of this provision;

(4) Notify such employees in writing in the

statement required by paragraph (b)(1) of this

provision that, as a condition of continued

employment on the grant or cooperative

agreement, the employee will—

(i) Abide by the terms of the statement; and

(ii) Notify the employer in writing of the

employee’s conviction under a criminal drug

statute for a violation occurring in the

workplace no later than 5 days after such

conviction;

(5) Notify the Grant Officer in writing

within 10 days after receiving notice under

paragraph (b)(4)(ii) of this provision, from an

employee or otherwise receiving actual

notice of such conviction. The notice shall

include the position title of the employee;

(6) Within 30 days after receiving notice

under paragraph (b)(4)(ii) of this provision of

a conviction, take one of the following

actions with respect to any employee who is

convicted of a drug abuse violation occurring

in the workplace:

(i) Taking appropriate personnel action

against such employee, up to and including

termination; or

(ii) Require such employee to satisfactorily

participate in a drug abuse assistance or

rehabilitation program approved for such

purposes by a Federal, State, or local health,

law enforcement, or other appropriate

agency; and

(7) Make a good faith effort to maintain a

drug-free workplace through implementation

of paragraphs (b)(1) through (b)(6) of this

provision.

(c) The Recipient, if an individual, agrees

by acceptance of the grant or cooperative

agreement, not to engage in the unlawful

manufacture, distribution, dispensing,

possession, or use of a controlled substance

during performance.

(d) In addition to other remedies available

to the Government, the Recipient’s failure to

62912 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

comply with the requirements of paragraph

(b) or (c) of this provision may render the

Recipient subject to suspension of payments,

termination of the grant or cooperative

agreement, and suspension or debarment.

[End of provision]

Special Conditions

§ 1260.50 Special conditions.

(a) In addition to the provisions set

forth in 1260.21 through 1260.38, NASA

grants and cooperative agreements are

subject to special conditions, which

either are not applicable to all awards or

are temporary in nature. Examples are

found in §§ 1260.51 through 1260.69,

but NASA may impose other conditions

as discussed in § 1260.114 or as the

requirements dictate. Deviations are not

required for changes made to special

conditions.

(b) Special conditions will be printed

in full text.

(c) In facilities grants, special

conditions will be selected on a case-bycase basis. As appropriate, the

requirements of the following sections

will apply: § 1260.123(c), Cost Sharing

or Matching; § 1260.125(h), Revision of

Budget and Program Plans; and

§ 1260.132, Real Property.

(d) Research grants with foreign

organizations will include special

conditions at §§ 1260.59 through

1260.61, modified as necessary, when

not covered under a Memorandum of

Agreement (MOA). In addition, other

special conditions (e.g., §§ 1260.62

through 1260.65) will be written with

the aid of legal counsel, and added

when necessary.

(e) Grants and cooperative agreements

awarded by NASA to commercial

organizations where cost sharing is not

required shall incorporate the special

conditions prescribed at § 1260.4.

§ 1260.51 Cooperative agreement special

condition.

Cooperative Agreement Special Condition

October 2000

(a) This award is a cooperative agreement

as it is anticipated there will be substantial

NASA involvement during performance of

the effort. NASA and the Recipient mutually

agree to the following statement of

anticipated cooperative interactions which

may occur during the performance of this

effort:

(Reference the approved proposal that

contains a detailed description of the work

and insert a concise statement of the exact

nature of the cooperative interactions that

deals with existing facts and not

contingencies.)

(b) The terms ‘‘grant’’ and ‘‘Recipient’’

mean ‘‘cooperative agreement’’ and

‘‘Recipient of cooperative agreement,’’

respectively, wherever the terms appear in

provisions and special conditions included

in this agreement.

(c) NASA’s ability to participate and

perform its collaborative effort under this

cooperative agreement is subject to the

availability of appropriated funds and

nothing in this cooperative agreement

commits the United States Congress to

appropriate funds therefor.

§ 1260.52 Multiple year grant or

cooperative agreement.

Multiple Year Grant or Cooperative

Agreement

October 2000

This is a multiple year grant or cooperative

agreement. Contingent on the availability of

funds, scientific progress of the project, and

continued relevance to NASA programs,

NASA anticipates continuing support at

approximately the following levels:

Second year $lll, Anticipated funding

datelll.

Third year $lll, Anticipated funding

datelll.

(Periods may be added or omitted, as

applicable)

§ 1260.53 Incremental funding.

Incremental Funding

October 2000

(a) Only $lll of the amount indicated

on the face of this award is available for

payment and allotted to this award. NASA

contemplates making additional allotments

of funds during performance of this effort. It

is anticipated that these funds will be

obligated as appropriated funds become

available without any action required by the

Recipient. The Recipient will be given

written notification by the NASA Grant

Officer.

(b) The recipient agrees to perform work up

to the point at which the total amount paid

or payable by the Government approximates

but does not exceed the total amount actually

allotted to this grant or cooperative

agreement. NASA is not obligated to

reimburse the Recipient for the expenditure

of amounts in excess of the total funds

allotted by NASA to this grant or cooperative

agreement. The Recipient is not authorized to

continue performance beyond the amount

allotted to this award.

§ 1260.54 Cost sharing.

Cost Sharing

October 2000

(a) NASA and the Recipient will share in

providing the resources necessary to perform

the agreement. NASA funding and non-cash

contributions (personnel, equipment,

facilities, etc.) and the dollar value of the

Recipient’s cash and/or non-cash

contribution will be on alll percent

NASA; lll percent Recipient basis.

(b) The funding and non-cash

contributions by both parties is represented

by the following dollar amounts:

Government Share lll

Recipient Share lll

Total Amount lll

(c) Criteria and procedures for the

allowability and allocability of cash and noncash contributions shall be governed by

§ 1260.123, Cost Sharing or Matching. The

applicable Federal cost principles are cited in

§ 1260.127.

(d) The Recipient’s share shall not be

charged to the Government under this

agreement or under any other contract, grant,

or cooperative agreement.

§ 1260.55 Reports substitution.

Reports Substitution

October 2000

Technical Reports may be substituted for

the required Performance Reports. The title

page of such reports shall clearly indicate

that the substitution has been made and will

show the period covered by the originally

required Performance Report.

§ 1260.56 Withholding.

Withholding

October 2000

If a Recipient fails to comply with the

terms and conditions of this grant or

cooperative agreement, including reporting

requirements, NASA may withhold advance

payments under this award, and may also

withhold future awards to the Recipient,

pending correction of the deficiency by the

Recipient. If advance payments are withheld,

the Grant Officer will notify the NASA

Financial Management Office when

payments may resume.

§ 1260.57 New technology.

New Technology

October 2000

(a) Definitions.

Administrator, as used in this special

condition, means the Administrator of the

National Aeronautics and Space

Administration (NASA) or duly authorized

representative.

Grant, as used in this special condition,

means any actual or proposed grant,

cooperative agreement, understanding, or

other arrangement, and includes any

assignment, substitution of parties, or

subcontract executed or entered into

thereunder.

Made, as used in this special condition,

means conception or first actual reduction to

practice; provided, that in the case of a

variety of plant, the date of determination (as

defined in section 41(d) of the Plant Variety

Protection Act, 7 U.S.C. 2401(d)) must also

occur during the period of grant performance.

Nonprofit organization, as used in this

special condition, means a domestic

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 domestic nonprofit scientific or

educational organization qualified under a

State nonprofit organization statute.

Practical application, as used in this

special condition, 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 case of a machine or system;

and, in each case, under such conditions as

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62913

to establish that the invention is being

utilized and that its benefits are, to the extent

permitted by law or Government regulations,

available to the public on reasonable terms.

Reportable item, as used in this special

condition, means any invention, discovery,

improvement, or innovation of the grantee,

whether or not patentable or otherwise

protectable under Title 35 of the United

States Code, made in the performance of any

work under any NASA grant or in the

performance of any work that is reimbursable

under any provision in any NASA grant

providing for reimbursement of costs

incurred before the effective date of the grant.

Reportable items include, but are not limited

to, new processes, machines, manufactures,

and compositions of matter, and

improvements to, or new applications of,

existing processes, machines, manufactures,

and compositions of matter. Reportable items

also include new computer programs, and

improvements to, or new applications of,

existing computer programs, whether or not

copyrightable or otherwise protectable under

Title 17 of the United States Code.

Small business firm, as used in this special

condition, means a domestic small business

concern as defined at 15 U.S.C. 632 and

implementing regulations (see 13 CFR

section 121.401 et seq.) of the Administrator

of the Small Business Administration.

Subject invention, as used in this special

condition, means any reportable item which

is or may be patentable or otherwise

protectible under Title 35 of the United

States Code, or any novel variety of plant that

is or may be protectable under the Plant

Variety Protection Act (7 U.S.C. 2321 et seq.).

(b) Allocation of principal rights.

(1) Presumption of title.

(i) Any reportable item that the

Administrator considers to be a subject

invention shall be presumed to have been

made in the manner specified in paragraph

(1) or (2) of section 305(a) of the National

Aeronautics and Space Act of 1958 (42 U.S.C.

2457(a)) (hereinafter called ‘‘the Act’’), and

that presumption shall be conclusive unless

at the time of reporting the reportable item

the Recipient submits to the Grant Officer a

written statement, containing supporting

details, demonstrating that the reportable

item was not made in the manner specified

in paragraph (1) or (2) of section 305(a) of the

Act.

(ii) Regardless of whether title to a given

subject invention would otherwise be subject

to an advance waiver or is the subject of a

petition for waiver, the Recipient may

nevertheless file the statement described in

paragraph (b)(1)(i) of this special condition.

The Administrator will review the

information furnished by the Recipient in

any such statement and any other available

information relating to the circumstances

surrounding the making of the subject

invention and will notify the Recipient

whether the Administrator has determined

that the subject invention was made in the

manner specified in paragraph (1) or (2) of

section 305(a) of the Act.

(2) Property rights in subject inventions.

Each subject invention for which the

presumption of paragraph (b)(1)(i) of this

special condition is conclusive or for which

there has been a determination that it was

made in the manner specified in paragraph

(1) or (2) of section 305(a) of the Act shall be

the exclusive property of the United States as

represented by NASA unless the

Administrator waives all or any part of the

rights of the United States, as provided in

paragraph (b)(3) of this special condition.

(3) Waiver of rights.

(i) Section 305(f) of the Act provides for the

promulgation of regulations by which the

Administrator may waive the rights of the

United States with respect to any invention

or class of inventions made or that may be

made under conditions specified in

paragraph (1) or (2) of section 305(a) of the

Act. The promulgated NASA Patent Waiver

Regulations, 14 CFR part 1245, subpart 1,

have adopted the Presidential Memorandum

on Government Patent Policy of February 18,

1983, as a guide in acting on petitions

(requests) for such waiver of rights.

(ii) As provided in 14 CFR Part 1245,

subpart 1, Recipients may petition, either

prior to execution of the grant or within 30

days after execution of the grant, for advance

waiver of rights to any or all of the inventions

that may be made under a grant. If such a

petition is not submitted, or if after

submission it is denied, the Recipient (or an

employee inventor of the Recipient) may

petition for waiver of rights to an identified

subject invention within eight months of first

disclosure of the invention in accordance

with paragraph (e)(2) of this special

condition, or within such longer period as

may be authorized in accordance with 14

CFR 1245.105.

(c) Minimum rights reserved by the

Government.

(1) With respect to each subject invention

for which a waiver of rights is applicable in

accordance with 14 CFR part 1245, subpart

1, the Government reserves—

(i) An irrevocable, nonexclusive,

nontransferable, royalty-free license for the

practice of such invention throughout the

world by or on behalf of the United States or

any foreign government in accordance with

any treaty or agreement with the United

States; and

(ii) Such other rights as stated in 14 CFR

1245.107.

(2) Nothing contained in this paragraph (c)

shall be considered to grant to the

Government any rights with respect to any

invention other than a subject invention.

(d) Minimum rights to the Recipient.

(1) The Recipient is hereby granted a

revocable, nonexclusive, royalty-free license

in each patent application filed in any

country on a subject invention and any

resulting patent in which the Government

acquires title, unless the Recipient fails to

disclose the subject invention within the

times specified in paragraph (e)(2) of this

special condition. The Recipient’s license

extends to its domestic subsidiaries and

affiliates, if any, within the corporate

structure of which the Recipient is a party

and includes the right to grant sublicenses of

the same scope to the extent the Recipient

was legally obligated to do so at the time the

grant was awarded. The license is

transferable only with the approval of the

Administrator except when transferred to the

successor of that part of the Recipient’s

business to which the invention pertains.

(2) The Recipient’s domestic license may

be revoked or modified by the Administrator

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 37 CFR part 404, Licensing

of Government Owned Inventions. This

license will not be revoked in that field of

use or the geographical areas in which the

Recipient 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 the

Administrator to the extent the Recipient, 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, the Recipient will be provided a

written notice of the Administrator’s

intention to revoke or modify the license, and

the Recipient will be allowed 30 days (or

such other time as may be authorized by the

Administrator for good cause shown by the

Recipient) after the notice to show cause why

the license should not be revoked or

modified. The Recipient has the right to

appeal to the Administrator any decision

concerning the revocation or modification of

its license.

(e) Invention identification, disclosures,

and reports.

(1) The Recipient shall establish and

maintain active and effective procedures to

assure that reportable items are promptly

identified and disclosed to Recipient

personnel responsible for the administration

of this New Technology special condition

within six months of conception and/or first

actual reduction to practice, whichever

occurs first in the performance of work under

this grant. These procedures shall include the

maintenance of laboratory notebooks or

equivalent records and other records as are

reasonably necessary to document the

conception and/or the first actual reduction

to practice of the reportable items, and

records that show that the procedures for

identifying and disclosing reportable items

are followed. Upon request, the Recipient

shall furnish the Grant Officer a description

of such procedures for evaluation and for

determination as to their effectiveness.

(2) The Recipient will disclose each

reportable item to the Grant Officer within

two months after the inventor discloses it in

writing to Recipient personnel responsible

for the administration of this New

Technology special condition or, if earlier,

within six months after the Recipient

becomes aware that a reportable item has

been made, but in any event for subject

inventions before any on sale, public use, or

publication of such invention known to the

Recipient. The disclosure to the agency shall

be in the form of a written report and shall

identify the grant under which the reportable

item was made and the inventor(s) or

innovator(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,

62914 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

operation, and physical, chemical, biological,

or electrical characteristics of the reportable

item. The disclosure shall also identify any

publication, on sale, or public use of any

subject invention and whether a manuscript

describing such 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 agency, the Recipient will

promptly notify the agency of the acceptance

of any manuscript describing a subject

invention for publication or of any on sale or

public use planned by the Recipient for such

invention.

(3) The Recipient shall furnish the Grant

Officer the following:

(i) Interim reports every 12 months (or

such longer period as may be specified by the

Grant Officer) from the date of the grant,

listing reportable items during that period,

and certifying that all reportable items have

been disclosed (or that there are no such

inventions) and that the procedures required

by paragraph (e)(1) of this special condition

have been followed.

(ii) A final report, within 3 months after

completion of the grant work, listing all

reportable items or certifying that there were

no such reportable items, and listing all

subcontracts at any tier containing a patent

rights clause or certifying that there were no

such subcontracts.

(4) The Recipient agrees, upon written

request of the Grant Officer, to furnish

additional technical and other information

available to the Recipient as is necessary for

the preparation of a patent application on a

subject invention and for the prosecution of

the patent application, and to execute all

papers necessary to file patent applications

on subject inventions and to establish the

Government’s rights in the subject

inventions.

(5) The Recipient agrees, subject to FAR

27.302(j), that the Government may duplicate

and disclose subject invention disclosures

and all other reports and papers furnished or

required to be furnished pursuant to this

special condition.

(f) Examination of records relating to

inventions.

(1) The Grant Officer or any authorized

representative shall, until 3 years after final

payment under this grant, have the right to

examine any books (including laboratory

notebooks), records, and documents of the

Recipient relating to the conception or first

actual reduction to practice of inventions in

the same field of technology as the work

under this grant to determine whether—

(i) Any such inventions are subject

inventions;

(ii) The Recipient has established and

maintained the procedures required by

paragraph (e)(1) of this special condition; and

(iii) The Recipient and its inventors have

complied with the procedures.

(2) If the Grant Officer learns of an

unreported Recipient grantee invention that

the Grant Officer believes may be a subject

invention, the Recipient may be required to

disclose the invention to the agency for a

determination of ownership rights.

(3) Any examination of records under this

paragraph will be subject to appropriate

conditions to protect the confidentiality of

the information involved.

(g) Withholding of payment (this paragraph

does not apply to subcontracts).

(1) Any time before final payment under

this grant, the Grant Officer may, in the

Government’s interest, withhold payment

until a reserve not exceeding $50,000 or 5

percent of the amount of this grant,

whichever is less, shall have been set aside

if, in the Grant Officer’s opinion, the

Recipient fails to—

(i) Establish, maintain, and follow effective

procedures for identifying and disclosing

reportable items pursuant to paragraph (e)(1)

of this special condition;

(ii) Disclose any reportable items pursuant

to paragraph (e)(2) of this special condition;

(iii) Deliver acceptable interim reports

pursuant to paragraph (e)(3)(i) of this special

condition; or

(iv) Provide the information regarding

subcontracts pursuant to paragraph (h)(4) of

this special condition.

(2) Such reserve or balance shall be

withheld until the Grant Officer has

determined that the Recipient has rectified

whatever deficiencies exist and has delivered

all reports, disclosures, and other

information required by the grant.

(3) Final payment under the grant shall not

be made before the Recipient delivers to the

Grant Officer all disclosures of reportable

items required by paragraph (e)(2) of this

special condition, and an acceptable final

report pursuant to paragraph (e)(3)(ii) of this

special condition.

(4) The Grant Officer may decrease or

increase the sums withheld up to the

maximum authorized in paragraph (g)(1) of

this special condition. No amount shall be

withheld under this paragraph while the

amount specified by this paragraph is being

withheld under other provisions of the grant.

The withholding of any amount or the

subsequent payment thereof shall not be

construed as a waiver of any Government

rights.

(h) Subcontracts.

(1) Unless otherwise authorized or directed

by the Grant Officer, the Recipient shall—

(i) Include the clause at NASA FAR

Supplement (NFS) 1852.227–70, New

Technology, (suitably modified to identify

the parties) in any subcontract hereunder

(regardless of tier) with other than a small

business firm or nonprofit organization for

the performance of experimental,

developmental, or research work; and

(ii) Include the clause at FAR 52.227–11

(suitably modified to identify the parties) in

any subcontract hereunder (regardless of tier)

with a small business firm or nonprofit

organization for the performance of

experimental, developmental, or research

work.

(2) In the event of a refusal by a

prospective subcontractor to accept such a

clause the Recipient—

(i) Shall promptly submit a written notice

to the Grant Officer setting forth the

subcontractor’s reasons for such refusal and

other pertinent information that may

expedite disposition of the matter; and

(ii) Shall not proceed with such

subcontract without the written authorization

of the Grant Officer.

(3) In the case of subcontracts at any tier,

the agency, subcontractor, and Recipient

agree that the mutual obligations of the

parties created by this special condition

constitute a contract between the

subcontractor and NASA with respect to

those matters covered by this grant.

(4) The Recipient shall promptly notify the

Grant Officer in writing upon the award of

any subcontract at any tier containing a

patent rights clause by identifying the

subcontractor, the applicable patent rights

clause, the work to be performed under the

subcontract, and the dates of award and

estimated completion. Upon request of the

Grant Officer, the Recipient shall furnish a

copy of such subcontract, and, no more

frequently than annually, a listing of the

subcontracts that have been awarded.

(5) The subcontractor will retain all rights

provided for the Recipient in paragraph

(h)(1)(i) or (ii) of this special condition,

whichever is included in the subcontract,

and the Recipient will not, as part of the

consideration for awarding the subcontract,

obtain rights in the subcontractor’s subject

inventions.

(i) Preference for United States industry.

Unless provided otherwise, no Recipient that

receives title to any subject invention and no

assignee of any such Recipient shall grant to

any person the exclusive right to use or sell

any subject invention in the United States

unless such person agrees that any products

embodying the subject invention will be

manufactured substantially in the United

States. However, in individual cases, the

requirement may be waived by the

Administrator upon a showing by the

Recipient or 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.

§ 1260.58 Designation of new technology

representative and patent representative.

Designation of New Technology

Representative and Patent Representative

October 2000

(a) For purposes of administration of the

special condition of this grant entitled ‘‘New

Technology,’’ the following named

representatives are hereby designated by the

Grant Officer to administer such special

condition:

Title, Office Code, Address (including zip

code)

New Technology

Representative

Patent Representative

(b) Reports of reportable items, and

disclosure of subject inventions, interim

reports, final reports, utilization reports, and

other reports required by the special

condition, as well as any correspondence

with respect to such matters, should be

directed to the New Technology

Representative unless transmitted in

response to correspondence or request from

the Patent Representative. Inquires or

requests regarding disposition of rights,

election of rights, or related matters should

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62915

be directed to the Patent Representative. This

special condition shall be included in any

subcontract hereunder requiring a ‘‘New

Technology’’ provision or ‘‘Patent Rights—

Retention by the Contractor (Short Form)’’

clause, unless otherwise authorized or

directed by the Grant Officer. The respective

responsibilities and authorities of the abovenamed representatives are set forth in

1827.305–370 of the NASA FAR Supplement.

§ 1260.59 Choice of law.

Choice of Law

October 2000

The rights and obligations of the

parties to the grant (or cooperative

agreement) shall be ascertainable by

recourse to the laws of the United States

of America. However, it is understood

that the laws of the Recipient’s country

will generally apply to recipient

activities within that country.

§ 1260.59A Invention reporting and rights.

Invention Reporting and Rights

October 2000

(a) As used in this provision:

(1) The term ‘‘invention’’ means any

invention or discovery which is or may be

patentable or otherwise protectable under

Title 35 of the United States Code, 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) The term ‘‘made’’ when used in relation

to any invention means the conception or

first actual reduction to practice of such

invention.

(b) The Recipient shall report promptly to

the grant officer each invention made in the

performance of work under this grant. The

report of such invention shall—

(1) Identify the inventor(s) by full name;

and

(2) Include such full and complete

technical information concerning the

invention as is necessary to enable an

understanding of the nature and operation

thereof.

(c) Reporting shall be made on NASA Form

1679 Disclosure of Invention and New

Technology (Including Software).

(d) The Recipient hereby grants to the

Government of the United States of America,

as represented by the Administrator of the

National Aeronautics and Space

Administration, the full rights, title, and

interest in and to each such invention

throughout the world.

§ 1260.60 Public information.

Public Information

October 2000

Information regarding this grant (including

a copy of this award document) may be

released by the Recipient without restriction.

However, technical information relating to

work performed under this grant where there

was a NASA contribution should be released

by the Recipient only after consultation with

the NASA Technical Officer.

§ 1260.61 Allocation of risk/liability.

Allocation of Risk/Liability

October 2000

(a) With respect to activities undertaken

under this agreement, the Recipient agrees

not to make any claim against NASA or the

U.S. Government with respect to the injury

or death of its employees or its contractors

and subcontractor employees, or to the loss

of its property or that of its Contractors and

subcontractors, whether such injury, death,

damage or loss arises through negligence or

otherwise, except in the case of willful

misconduct.

(b) In addition, the Recipient agrees to

indemnify and hold the U.S. Government

and its Contractors and subcontractors

harmless from any third party claim,

judgment, or cost arising from the injury to

or death of any person, or for damage to or

loss of any property, arising as a result of its

possession or use of any U.S. Government

property.

§ 1260.62 Payment—to foreign

organizations.

Payment—To Foreign Organizations

(For grants or cooperative agreements with

foreign organizations, this clause will be

developed on a case-by-case basis.)

§ 1260.63 Customs clearance and visas.

Customs Clearance and Visas

(For grants or cooperative agreements with

foreign organizations, this clause will be

developed on a case-by-case basis.)

§ 1260.64 Taxes.

Taxes

(For grants or cooperative agreements with

foreign organizations, this clause will be

developed on a case-by-case basis.)

§ 1260.65 Exchange of technical data and

goods.

Exchange of Technical Data and Goods

(For grants or cooperative agreements with

foreign organizations, this clause will be

developed on a case-by-case basis.)

§ 1260.66 Listing of reportable equipment

and other property.

Listing of Reportable Equipment and Other

Property

October 2000

(a) Title to federally-owned property

provided to the Recipient remains vested in

the Federal Government, and shall be

managed in accordance with § 1260.133. The

following items of federally-owned property

are being provided to the recipient for use in

performance of the work under this grant or

cooperative agreement:

{List property or state ‘‘not applicable.’’}

(b) The following specific items of

equipment acquired by the Recipient have

been identified by NASA for transfer of title

to the Government when no longer required

for performance under this grant or

cooperative agreement. This equipment will

be managed in accordance with 1260.134,

and shall be transferred to NASA or NASA’s

designee in accordance with the procedures

set forth at 1260.134(g):

{List property or state ‘‘not applicable.’’}

§ 1260.67 Equipment and other property

under grants with commercial firms.

Equipment and Other Property Under

Grants With Commercial Firms

(a) This grant permits acquisition of special

purpose equipment required for the conduct

of research. Acquisition of special purpose

equipment costing in excess of $5,000 and

not included in the approved proposal

budget requires the prior approval of the

Grant Officer unless the item is merely a

different model of an item shown in the

approved proposal budget.

(b) Recipients may not purchase, as a direct

cost to the grant, items of general purpose

equipment, examples of which include but

are not limited to office equipment and

furnishings, air conditioning equipment,

reproduction and printing equipment, motor

vehicles, and automatic data processing

equipment. If the Recipient requests an

exception, the Recipient shall submit a

written request for Grant Officer approval,

prior to purchase by the Recipient, stating

why the Recipient cannot charge the general

purpose equipment to indirect costs.

(c) Under no circumstances shall grant

funds be used to acquire land or any interest

therein, to acquire or construct facilities (as

defined in 48 CFR (FAR) 45.301), or to

procure passenger carrying vehicles.

(d) The Government shall have title to

equipment and other personal property

acquired with Government funds. Such

property shall be disposed of pursuant to 48

CFR (FAR) 45.603.

(e) Title to Government furnished

equipment (including equipment, title to

which has been transferred to the

Government prior to completion of the work)

will remain with the Government.

(f) The Recipient shall establish and

maintain property management standards for

Government property and otherwise manage

such property as set forth in 48 CFR (FAR)

45.5 and 48 CFR (NFS) 1845.5.

(g) Recipients shall submit annually a

NASA Form 1018, NASA Property in the

Custody of Contractors, in accordance with

the instructions on the form, the provisions

of 48 CFR (NFS) 1845.71 and any

supplemental instructions that may be issued

by NASA for the current reporting period.

The original NF 1018 shall be submitted to

the center Deputy Chief Financial Officer

(Finance) with three copies sent concurrently

to the center Industrial Property Officer. The

annual reporting period shall be from

October 1 of each year through September 30

of the following year. The report shall be

submitted in time to be received by October

31. Negative reports (i.e. no reportable

property) are required. The information

contained in the reports is entered into the

NASA accounting system to reflect current

asset values for agency financial statement

purposes. Therefore, it is essential that

required reports be received no later than

October 31. A final report is required within

30 days after expiration of the agreement.

62916 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

(h) The requirements set forth in this

special condition supercedes grant provision

1260.27, Equipment and Other Property.

§ 1260.68 Invoices and payments under

grants with commercial firms.

Invoices and Payments Under Grants With

Commercial Firms

October 2000

(a) Invoices for payment of actual incurred

costs shall be submitted by the Recipient no

more frequently than on alllbasis.

(b) Invoices shall be submitted by the

Recipient to the following offices:

(1) The original invoice shall be sent

directly to the payment office designated on

the grant cover page.

(2) Copies of the invoice shall be sent to

the NASA Technical Officer and NASA Grant

Officer.

(c) All invoices shall reference the grant

number.

(d) The final invoice shall be marked

‘‘Final’’ and shall be submitted within 90

days of the expiration of the grant.

(e) The requirements set forth in this

special condition supercedes grant provision

1260.26, Financial Management.

§ 1260.69 Electronic funds transfer

payment methods.

Electronic Funds Transfer Payment Methods

October 2000

(a) Payments under this grant will be made

by the Government by electronic funds

transfer through the Treasury Fedline

Payment System (FEDLINE) or the

Automated Clearing House (ACH), at the

option of the Government. After award, but

no later than 14 days before an invoice is

submitted, the Recipient shall designate a

financial institution for receipt of electronic

funds transfer payments, and shall submit

this designation to the Grant Officer or other

Government official, as directed.

(b) For payment through FEDLINE, the

Recipient shall provide the following

information:

(1) Name, address, and telegraphic

abbreviation of the financial institution

receiving payment.

(2) The American Bankers Association 9-

digit identifying number for wire transfers of

the financing institution receiving payment if

the institution has access to the Federal

Reserve Communication System.

(3) Payee’s account number at the financial

institution where funds are to be transferred.

(4) If the financial institution does not have

access to the Federal Reserve

Communications System, name, address, and

telegraphic abbreviation of the correspondent

financial institution through which the

financial institution receiving payment

obtains wire transfer activity. Provide the

telegraphic abbreviation and American

Bankers Association identifying number for

the correspondent institution.

(c) For payment through ACH, the

Recipient shall provide the following

information:

(1) Routing transit number of the financial

institution receiving payment (same as

American Bankers Association identifying

number used for FEDLINE).

(2) Number of account to which funds are

to be deposited.

(3) Type of depositor account (‘‘C’’ for

checking, ‘‘S’’ for savings).

(4) If the Recipient is a new enrollee to the

ACH system, a ‘‘Payment Information Form,’’

SF 3881, must be completed before payment

can be processed.

(d) In the event the Recipient, during the

performance of this grant, elects to designate

a different financial institution for the receipt

of any payment made using electronic funds

transfer procedures, notification of such

change and the required information

specified above must be received by the

appropriate Government official 30 days

prior to the date such change is to become

effective.

(e) The documents furnishing the

information required in this clause must be

dated and contain the signature, title, and

telephone number of the Recipient official

authorized to provide it, as well as the

Recipient’s name and contract number.

(f) Failure to properly designate a financial

institution or to provide appropriate payee

bank account information may delay

payments of amounts otherwise properly

due.

(g) The requirements set forth in this

special condition supercedes grant provision

1260.26, Financial Management.

Post-Award Requirements

§ 1260.70 Delegation of administration.

(a) Property administration and

closeout of NASA grants and

cooperative agreements will be

delegated to the Office of Naval

Research (ONR). Exceptions to this

policy are:

(1) Training grants will not be

delegated.

(2) Grants of short duration (9 months

or less) or low dollar value ($50k or less)

will normally not be delegated.

(3) Grant officers may waive specific

administration requirements in

exceptional circumstances for

individual grants. Exceptions to

delegation must be justified and

approved in writing by the Grant

Officer, and made part of the file.

(4) Waiver of delegation of property

administration or closeout to be

instituted by a center as a standard

practice constitutes a deviation to this

handbook, and requires approval in

accordance with § 1260.7.

(b) Delegations will be made by use of

NF 1674 (Exhibit F to subpart A of this

part 1260). The NF 1674, the award

document, and the approved budget

will be sent to ONR in a single package

(electronically, when possible).

(c) Upon acceptance of a delegation,

ONR agrees to the following:

(1) On a monthly basis, ONR will

provide each center a Report of

Accepted Delegations listing each grant

or cooperative agreement accepted for

administration, with pertinent

information including the ONR point of

contacts name, phone number, and email address.

(2) On a monthly basis, ONR will

electronically send to each Center

Commercial Technology Office a listing

of New Technology Reports it has

received.

(3) On a quarterly basis, ONR will

provide the cognizant grant officers a

‘‘List of Delinquent Recipients’’ that

failed to provide timely interim or final

reports.

(4) Property administration should

always be delegated, even if it is not

anticipated that property will be

provided by the government or acquired

by the recipient. ONR shall follow DoD

property administration policies and

procedures, plus the following NASA

requirements:

(i) The recipient shall maintain

property records and manage

nonexpendable personal property in

accordance with 14 CFR 1260.134.

During Property Control System

Analyses (PCSA), ONR will check the

recipient’s understanding and test

compliance of property management

requirements, including the accuracy of

recipient property reports. ONR will

provide one copy of each PCSA Report

to the appropriate NASA center

industrial property officer.

(ii) ONR will investigate and notify

NASA as appropriate for any

unauthorized property acquisitions by

the recipient. See the provision at

§ 1260.27.

(iii) ONR will notify the cognizant

grant officer and industrial policy

officer when property is lost, damaged

or destroyed.

(iv) Under no circumstances will

Government property be disposed

without instructions from NASA.

(v) Prior to disposition, except when

returned to NASA or reutilized on other

NASA programs, ONR will ensure all

NASA identifications are removed or

obliterated from property, and hard

drives of computers are cleared of

sensitive or NASA owned/licensed

software/data.

§ 1260.71 Supplements and renewals.

(a) A NASA grant officer can

unilaterally make minor or

administrative changes to a grant; e.g.,

Reports Substitution (§ 1260.55) and

Withholding (§ 1260.56).

(b) To ensure timely completion and

closeout of grants, renewal proposals to

continue the same effort at the same

institution that are accepted for award

by NASA will be awarded as new grants

versus continuation of the existing

grant.

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62917

(1) When work under a grant is to be

continued through an extension, or

through a renewal of the work under a

new grant, the continuation effort

should be instituted concurrent with the

original expiration date. When possible,

the period of performance should be

continuous with the prior grant period

of performance. The extension or a

renewal of a grant (see § 1260.13(a))

beyond the original expiration date is a

unilateral decision by NASA based

upon availability of funds, continued

research relevance, and progress made

by the recipient.

(2) To insure uninterrupted programs,

the technical office should forward to

the grant office a completed award

package, including a funded

procurement request, technical

evaluation of the proposed budget, and

other support documentation, at least 29

days before the expiration of the funded

period.

(c) Requests by the recipient to have

a grant modified must be in writing to

the grant officer. Prior approvals and

changes are detailed in § 1260.125.

(d) A no-cost extension can be issued

by the recipient as detailed in paragraph

(b) of the provision at § 1260.23,

Extensions, and § 1260.125(e). NASA

reserves the right to disapprove the

extension request if the requirements set

forth at § 1260.125(e)(2) are not met,

including if the extension request is not

received ten days prior to the grant

expiration date.

(e) When two or more actions are

completed on a single supplement, the

supplement will reflect the effective

date of the earliest action.

§ 1260.72 Adherence to original budget

estimates.

(a) Although NASA assumes no

responsibility for budget overruns, the

recipient may spend grant funds

without strict adherence to individual

allocations within the proposed

budgets, except that recipients must

comply with prior approval

requirements for property and

subcontracts as provided in §§ 1260.27

and 1260.33.

(b) The revision of budgets and

program plans are covered in

§ 1260.125.

§ 1260.73 Transfers, novations, and

change of name agreements.

(a) When the principal investigator

changes organizational affiliation and

desires support for the research at a new

location, (i.e., for the grant to be

transferred), the grant officer should

first consult with the institution that

originally received the grant to ascertain

whether an acceptable replacement

principal investigator can be substituted

to complete the research effort. The final

decision on whether an acceptable

replacement is available, or that the

research effort should follow the

original principal investigator to the

new location, is at the discretion of the

NASA technical Officer. If the decision

is made to transfer the grant, the grant

at the original institution must be

terminated, and a new proposal must be

submitted to NASA via the appropriate

officials of the new institution.

Although such a proposal will be

reviewed in the normal manner, every

effort will be made to expedite a

decision. Regardless of the action taken

on the new proposal, final reports on

the original grant, describing the

scientific progress and expenditure to

date, will be required.

(b) Novation and change of name

agreements are administrative actions

requiring the involvement of the grant

officer. Novations are legal instruments

under which obligations of an

organization, (including the

performance of grants), are assumed by

a new organization arising out of a

transfer of assets, usually as a result of

a merger or acquisition by the new

organization. Change of name

agreements are legal instruments

executed by an organization and NASA

that recognizes the legal change of name

of the organization without disturbing

the original rights or obligations of the

parties. Procedures for completing

novation and change of name

agreements are set forth at FAR subpart

42.12. All novation agreements and

change of name agreements of the

recipient, prior to execution, shall be

reviewed by legal counsel for legal

sufficiency. It is recommended that the

cognizant ONR office be contacted to

determine responsibilities to complete

novation or change of name agreements.

§ 1260.74 Property use, disposition, and

vesting of title.

(a) Approval for acquisition of

property shall conform to the following

procedures:

(1) Providing existing government

equipment or property, or allowing

acquisition of property by a grant

recipient, should only be allowed in

situations where the recipient justifies

the need for the property and cannot

carry out the effort with existing

property already in the possession of the

recipient.

(2) In accordance with OMB Circulars

A–21 and A–122, prior approval of

property acquisitions is required for

special purpose equipment with a unit

cost over $5,000, general purpose

equipment with a unit cost over $5,000,

(unless a lower threshold has been

established by the recipient), or

coherent systems (as defined in

§ 1260.74(e)) with a value of over

$5,000. Grant awards under the Federal

Demonstration Partnership are exempt

from this requirement. The NASA grant

officer will retain authority for

approving the expenditure of grant

funds for the acquisition of such

equipment. Requests by grant recipients

for the acquisition of equipment shall be

supported by written documentation

setting forth the description, purpose,

and acquisition value of the equipment,

and include a written certification that

the equipment will be used exclusively

for research. (A change in the model

number of a prior approved piece of

equipment does not require resubmission for that item.) NASA grant

officers shall not approve the

expenditure of grant funds for the

acquisition of equipment unless the

recipient’s justification for the

equipment demonstrates that the

equipment will be used exclusively for

research activities.

(b) Vesting of title to property

acquired by the recipient shall conform

to the following procedures:

(1) For awards to educational

institutions and non-profit

organizations, special purpose and

general purpose equipment costing in

excess of $5,000 (unless a lower

threshold has been established by the

recipient) acquired by the recipient

under a grant or cooperative agreement

for the purpose of research shall be

titled to the recipient as ‘‘exempt’’

equipment as set forth at § 1260.133(b).

The recipient shall have no further

obligation or accountability to the

Federal Government for the use or

disposition of ‘‘exempt’’ property,

including reporting requirements.

Special purpose and general purpose

equipment costing in excess of $5,000

(unless a lower threshold has been

established by the recipient) acquired by

the recipient under a grant or

cooperative agreement for non-research

work shall be titled to the recipient in

accordance with § 1260.134.

(2) For awards to commercial

organizations, the following property

procedures will apply:

(i) Acquisition of special purpose

equipment costing in excess of $5,000

and not included in the approved

proposal budget requires the prior

approval of the grant officer unless the

item is merely a different model of an

item shown in the approved proposal

budget.

(ii) Recipients may not purchase, as a

direct cost to the grant, items of general

purpose equipment, examples of which

62918 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

include but are not limited to office

equipment and furnishings, air

conditioning equipment, reproduction

and printing equipment, motor vehicles,

and automatic data processing

equipment. If the recipient requests an

exception, the recipient shall submit a

written request for grant officer

approval, prior to purchase by the

recipient, stating why the recipient

cannot charge the general purpose

equipment to indirect costs.

(iii) Under no circumstances shall

grant funds be used to acquire land or

any interest therein, to acquire or

construct facilities (as defined in 48 CFR

(FAR) 45.301), or to procure passenger

carrying vehicles.

(iv) The Government shall have title

to equipment and other personal

property acquired with Government

funds. Such property shall be disposed

of pursuant to 48 CFR (FAR) 45.603.

(v) Title to Government furnished

equipment (including equipment, title

to which has been transferred to the

Government prior to completion of the

work) will remain with the Government.

(vi) The Recipient shall establish and

maintain property management

standards for Government property and

otherwise manage such property as set

forth in 48 CFR (FAR) 45.5 and 48 CFR

(NFS) 1845.5.

(vii) Recipients shall submit annually

a NASA Form 1018, NASA Property in

the Custody of Contractors, in

accordance with the instructions on the

form, the provisions of 48 CFR (NFS)

1845.71 and any supplemental

instructions that may be issued by

NASA for the current reporting period.

The original NF 1018 shall be submitted

to the center Deputy Chief Financial

Officer, Finance, with three copies sent

concurrently to the center industrial

property officer. The annual reporting

period shall be from October 1 of each

year through September 30 of the

following year. The report shall be

submitted in time to be received by

October 31. Negative reports (i.e. no

reportable property) are required. The

information contained in the reports is

entered into the NASA accounting

system to reflect current asset values for

agency financial statement purposes.

Therefore, it is essential that required

reports be received no later than

October 31. A final report is required

within 30 days after expiration of the

agreement.

(c) Equipment with a unit price of

$5,000 or less (unless a lower threshold

has been established by the recipient) is

properly classified as ‘‘supplies,’’ is not

subject to transfer to the Agency, and

will be titled to the recipient in

accordance with § 1260.135.

(d) Title to Federally-owned property

remains with the Government, and is

subject to the following additional

requirements:

(1) In accordance with Public Law 94–

519, NASA will not acquire property

from other agencies for use on NASA

grants.

(2) Government property provided to

a grant recipient for use under a grant

will be identified through inclusion of

the special condition at § 1260.66,

Listing of Reportable Equipment and

Other Property.

(3) When Federally-owned property is

reported excess by a recipient, the

administrative grant officer will report

the equipment to the center industrial

property officer, who will consult with

the technical officer concerning

property disposition.

(4) NASA policy encourages the

donation of existing, excess NASA

property to nonprofit organizations

whose primary purpose is the conduct

of scientific research.

(e) When two or more components are

fabricated into a single coherent system

in such a way that the components lose

their separate identities, and their

separation would render the system

useless for its original purpose, the

components will be considered as

integral parts of a single system. If such

a system includes recipient-owned

components, the property will be

considered to be exempt. The

requirement for agreement regarding

NASA’s retention of its option to take

title shall further apply where it is

expected that one or more recipientacquired components costing $5,000 or

less will be fabricated into a single

coherent system costing in excess of

$5,000. However, an item that is used

ancillary to a system, without loss of its

separate identity and usefulness, will be

considered as a separate item and not as

an integral component of the system.

(f) Property administration and plant

clearance for all grants and cooperative

agreements will be delegated to the

appropriate ONR office.

(g) NASA grant officers will provide

copies of property related grant

documentation to the center industrial

property officer and to the Office of

Naval Research (at time of award or

modification) when the NASA program

office elects to retain title to an existing

item of Government property, to furnish

the property to the recipient in lieu of

donation, or to take title to property

acquired by the recipient. When NASA

acquires title to items of recipient

acquired equipment or when NASA

transfers an item of Government

property to a recipient as Federally

owned property, the NASA grant officer

shall notify the cognizant NASA center

financial management officer, the

industrial property officer and Office of

Naval Research to ensure proper entries

in financial and property accounting

records.

§ 1260.75 Summary of report

requirements.

(a) Report responsibilities of the grant

officer are set forth as follows:

(1) The grant officer is responsible for

submitting the Individual Procurement

Action Report (NF 507) for all grant and

cooperative agreement actions.

(2) The Committee on Academic

Science and Engineering (CASE) Report

(NF 1356), for grants and cooperative

agreements awarded to educational

institutions, is submitted by the

program office with the basic award

procurement request and completed by

the grant officer. The grant officer

should initiate an amendment to the NF

1356 whenever the principal

investigator or the technical officer

changes.

(b) Intermediate report

responsibilities of the recipient are as

follows:

(1) The Federal Cash Transactions

Report (SF 272) shall be submitted by

the recipient, in accordance with

§ 1260.26(a), as a condition of receiving

advance payments. Instructions and

answers to payment questions will be

provided by the Financial Management

Office of the Center that issued the

grant. (see § 1260.152.)

(2) The annual Inventory Report of

Federally Owned Property in Custody of

the Recipient will be submitted by the

recipient as required by § 1260.27(e).

The listing shall include information

specified in § 1260.134(f) together with

beginning and ending dollar value totals

for the reporting period. Negative

reports (i.e., where no property has been

acquired or provided, or where all

acquired property has been titled to the

recipient as exempt) are not required.

Please note that any property acquired

by the recipient and not titled to the

recipient as exempt, must be reported,

even when titled to the recipient as nonexempt property in accordance with the

procedures set forth at § 1260.134.

(3) A Progress Report shall be

submitted in accordance with

§§ 1260.22 and 1260.151. Recipients are

not required to submit more than the

original and two copies. At the request

of the technical officer, technical reports

can be submitted as new findings are

made rather than on a predetermined

time schedule, by use of the special

condition at § 1260.55, entitled ‘‘Reports

Substitution.’’

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62919

(4) An Educational Activity Report is

required annually for education grants

in accordance with § 1260.22. The

report is due 60 days prior to the

anniversary date of the grant or

cooperative agreement.

(5) A Report of Joint NASA/Recipient

Inventions is required for all grants and

cooperative agreements, as applicable,

in accordance with § 1260.28.

(6) A Disclosure of Subject Invention

is required for all grants and cooperative

agreements, as applicable, in accordance

with § 1260.28. The reporting of the

invention shall be made within two

months after the inventor discloses it to

the recipient, and will be reported on

NASA Form 1679 Disclosure of

Invention and New Technology

(Including Software) in accordance with

the procedures set forth under

§ 1260.28.

(7) An Election of Title to a Subject

Invention is required for all grants and

cooperative agreements, as applicable,

in accordance with § 1260.28. The

notice is due within 1 year after

disclosure of the subject invention if a

statutory bar exists, otherwise within 2

years.

(8) A Listing of Subject Inventions is

required for all grants and cooperative

agreement, in accordance with

§ 1260.28. The listing is due annually.

(9) A Notification of Decision to

Forego Patent Protection is required for

all grants and cooperative agreements,

as applicable, in accordance with

§ 1260.28. The notification is due 30

days before the expiration of the

response period.

(10) A Utilization of Subject Invention

Report is required for all grants and

cooperative agreements, as applicable,

in accordance with § 1260.28. The

report is due annually.

(11) A Notice of Proposed Transfer of

Technology is required for all grants and

cooperative agreements, as applicable,

in accordance with § 1260.30. The

notice is required prior to transferring

technology to a foreign firm or

institution.

(12) An Annual NASA Form 1018,

NASA Property in the Custody of

Contractors, is required for all grants

and cooperative agreements with

commercial organizations. The reports

are due October 31st of each year.

Negative reports (i.e. no reportable

property) are required.

(c) Final report responsibilities of the

recipient are as follows:

(1) A Subject Inventions Final Report

is required for all grants and cooperative

agreements, as applicable, in accordance

with § 1260.28. The report is due within

90 days after the expiration of the grant

or cooperative agreement.

(2) A properly certified Final Federal

Cash Transactions Report, SF 272, is

required from the recipient for each

grant, in accordance with §§ 1260.26(a)

and 1260.152. The report is due within

90 days after the expiration of the grant

or cooperative agreement.

(3) A Summary of Research is

required for all research grants in

accordance with § 1260.22. Citation of

publications resulting from research, or

abstracts thereof, may serve as all or part

of the Summary of Research. The

Summary of Research shall also include

a complete list of all subject inventions

(or negative statement) required to be

disclosed that resulted from the work

(see the provision at § 1260.28).

(4) A Final Inventory Report of

Federally Owned Property, including

equipment where title was taken by the

Government, is required for all grants

and cooperative agreements, where

property or equipment has been

provided by the government or acquired

by the recipient, § 1260.27. The report is

due within 60 days after the expiration

of the grant or cooperative agreement.

Negative reports (i.e., where no property

has been acquired or provided) are

required.

(5) A Final Educational Activity

Report is required for all education

grants or cooperative agreements. The

report is due within 90 days after the

expiration of the grant or cooperative

agreement.

(6) A Faculty Advisor Survey is

required for all training grants. The

report is due from the student’s faculty

advisor within 60 days after the

expiration of the training grant.

(7) A Summary of Research is

required for all training grants. The

report is due from the student within 90

days after the expiration of the training

grant.

(8) An Administrative Report is

required for all training grants. The

report is due within 90 days after the

expiration of the training grant.

(9) A Student Evaluation Form is

required for all training grants. The form

is due from the student within 90 days

after the expiration of the training grant.

(10) A Final NASA Form 1018, NASA

Property in the Custody of Contractors,

is required for all grants and cooperative

agreements with commercial

organizations. The report is due within

30 days after the expiration of the grant

or cooperative agreement.

(d) To clarify report requirements to

grant and cooperative agreement

recipients, the grant officer will include

the ‘‘Required Publications and

Reports’’ form (Exhibit G to subpart A

of this part 1260) as part of the award

document.

§ 1260.76 Termination and enforcement.

(a) Suspension or termination of a

grant prior to the planned expiration

date must be reserved for exceptional

situations that cannot be handled any

other way (see § 1260.160).

(b) The Director, Program Operations

Division (Code HS), shall provide to the

General Services Administration

information concerning all NASA

debarments, suspensions,

determinations of ineligibility, and

voluntary exclusions of persons in

accordance with 14 CFR 1265.505.

(c) Remedies for Noncompliance are

delineated in § 1260.162.

(d) Failure of the recipient to provide

a required report can result in the

Agency and the public being denied

information about grant activities,

NASA officials having less information

for making decisions, grant closeout

being delayed, and confidence being

undermined as to whether the recipient

will meet the requirements under other

grants. Because NASA grants provide

for advance payments, a recipient could

be fully paid before final reports are

due. At this point, it is too late to

withhold payment on the existing grant.

(e) Consistent with §§ 1260.122(h) and

1260.162(a), NASA may suspend or

terminate advance payments from

recipients that fail to comply with

reporting requirements. To remedy

failure to furnish timely reports, special

condition at § 1260.56, Withholding,

should be used when awarding a new

grant or modifying an existing grant

with non-responsive organizations.

(1) Special condition at § 1260.56

allows the grant officer to instruct the

Financial Management Office to

suspend or terminate advance payments

under an institutions letter of credit

pending receipt of the satisfactorily

completed reports required in § 1260.75.

(2) The grant officer may waive the

withholding requirement when the

recipient has taken corrective action

that makes withholding unnecessary. To

release for payment the amount

withheld, grant officers shall send a

memorandum to their Financial

Management Office.

§ 1260.77 Closeout procedures.

Closeout is the process by which

NASA determines that all applicable

administrative actions and all required

work under the instrument have been

completed by both the recipient and

NASA and no further activity is

expected (see § 1260.171).

(a) Closeout will begin within 90 days

after the expiration date of the grant.

NASA’s goal for closeout to be

completed is within 180 days after the

expiration of the grant.

62920 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

(b) Those who are designated to

receive NASA reports (except for CASI,

which only acknowledges receipt) must

provide certification to the NASA grant

officer, and to ONR when delegated,

that the reports have been received and

satisfactorily completed. Electronic

certifications are acceptable. See

§§ 1260.75 and 1260.171(a). The

property certification should indicate

that disposal of any remaining

Government property has been made as

directed and that NASA has been

compensated for any residual inventory.

(c) When ONR has been delegated

closeout and has completed its actions,

the NASA grant officer is to receive

from ONR all of the following:

(1) Certification that all required

reports have been received and

approved. However, when a NASA

technical officer does not respond to a

third request from ONR to provide a

certification for a Summary of Research,

ONR may provide a ‘‘qualified

acceptance statement’’ in lieu of the

required certification, after providing

written notification to the NASA grant

officer.

(2) A DD Form 1593 Contract

Administration Completion Record (or

equivalent electronic notification),

without supporting or backup

documents, indicating property

administration is complete.

(3) An original, signed DD Form 1594

Contract Completion Statement.

(d) A grant is administratively

complete and ready for closeout when:

(1) Property disposition has been

completed.

(2) Certifications for all reports have

been received.

(3) A DD Form 1594 has been

received, when delegated.

(4) Payments have been made for

allowable reimbursable costs, and

refunds have been received for any

balance of unobligated cash advanced

that is not authorized to be retained for

use on other grants (see §§ 1260.171

through 1260.173).

(e) Grants will not be closed out if

litigation or an appeal is pending, or

when termination action has not been

completed.

(f) Records will be retained in

accordance with § 1260.153 and NPG

1441.1, Record Retention Schedules. As

set forth in the NPG, grant files are

generally retired to the Federal Records

Center 2 years after completion of the

grant or agreement, and destroyed when

6 years, 3 months old.

Appendix to Subpart A to Part 1260—

Listing of Exhibits

Exhibit A—Budget Summary

Exhibit B—Standard Grant and Cooperative

Agreement Cover Page

Exhibit C—Provisions

Exhibit D—Federal Demonstration

Partnership Terms and Conditions

Exhibit E—Special Conditions for

Cooperative Agreements between NASA

and the Commercial Space Centers

Exhibit F—NASA 1674 Letter of Delegation

for the Administration of Grants and

Cooperative Agreements

Exhibit G—Required Publications and

Reports

Note: Exhibits are available at NASA

Headquarters, Code HC, Washington, D.C.

20546.

Subpart B—Uniform Administrative

Requirements for Grants and

Cooperative Agreements With

Institutions of Higher Education,

Hospitals, and Other Non-Profit

Organizations

General

§ 1260.101 Purpose.

This subpart implements OMB

Circular No. A–110 and establishes

uniform administrative requirements for

NASA grants and agreements awarded

to institutions of higher education,

hospitals, and other non-profit

organizations. NASA shall not impose

additional or inconsistent requirements,

except as provided in §§ 1260.104 and

1260.114 or unless specifically required

by Federal statute or executive order.

Non-profit organizations that implement

Federal programs for the States are also

subject to State requirements.

§ 1260.102 Definitions.

Accrued expenditures means the

charges incurred by the recipient during

a given period requiring the provision of

funds for:

(1) Goods and other tangible property

received;

(2) Services performed by employees,

contractors, subcontractors, and other

payees; and

(3) Other amounts becoming owed

under programs for which no current

services or performance is required.

Accrued income means the sum of:

(1) Earnings during a given period

from services performed by the

recipient, and goods and other tangible

property delivered to purchasers; and

(2) Amounts becoming owed to the

recipient for which no current services

or performance is required by the

recipient.

Acquisition cost of equipment means

the net invoice price of the equipment,

including the cost of modifications,

attachments, accessories, or auxiliary

apparatus necessary to make the

property usable for the purpose for

which it was acquired. Other charges,

such as the cost of installation,

transportation, taxes, duty or protective

in-transit insurance, shall be included

or excluded from the unit acquisition

cost in accordance with the recipient’s

regular accounting practices.

Advance means a payment made by

Treasury check or other appropriate

payment mechanism to a recipient upon

its request either before outlays are

made by the recipient or through the use

of predetermined payment schedules.

Award means a grant or cooperative

agreement that provides support or

stimulation to accomplish a public

purpose. Awards include research

grants, training grants, facilities grants,

educational grants, and cooperative

agreements in the form of money or

property in lieu of money, by NASA to

an eligible recipient. The term does not

include: Technical assistance, which

provides services instead of money;

other assistance in the form of loans,

loan guarantees, interest subsidies, or

insurance; direct payments of any kind

to individuals; and, contracts which are

required to be entered into and

administered under procurement laws

and regulations.

Cash contributions means the

recipient’s cash outlay, including the

outlay of money contributed to the

recipient by third parties.

Closeout means the process by which

NASA determines that all applicable

administrative actions and all required

work of the award have been completed

by the recipient and NASA.

Contract means a procurement

contract under an award, and a

procurement subcontract under a

recipient’s contract.

Cost sharing or matching means that

portion of project or program costs not

borne by NASA.

Date of completion means the date on

which all work under an award is

completed or the date on the award

document, or any supplement or

amendment thereto, on which NASA

sponsorship ends.

Disallowed costs means those charges

to an award that NASA determines to be

unallowable, in accordance with the

applicable Federal cost principles or

other terms and conditions contained in

the award.

Equipment means tangible

nonexpendable personal property

including exempt property charged

directly to the award having a useful life

of more than one year and an

acquisition cost of $5,000 or more per

unit. However, consistent with recipient

policy, lower limits may be established.

Excess property means property under

the control of any Federal awarding

agency that, as determined by the head

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thereof, is no longer required for its

needs or the discharge of its

responsibilities.

Exempt property means tangible

personal property acquired in whole or

in part with Federal funds, where a

Federal awarding agency has statutory

authority to vest title in the recipient

without further obligation to the Federal

Government. An example of exempt

property authority is contained in the

Federal Grant and Cooperative

Agreement Act (31 U.S.C. 6306) for

property acquired under an award to

conduct basic or applied research by a

non-profit institution of higher

education or non-profit organization

whose principal purpose is conducting

scientific research.

Federal funds authorized means the

total amount of Federal funds obligated

by the Federal Government for use by

the recipient. This amount may include

any authorized carryover of unobligated

funds from prior funding periods when

permitted by agency regulations or

agency implementing instructions.

Federal share of real property,

equipment, or supplies means that

percentage of the property’s acquisition

costs and any improvement

expenditures paid with Federal funds.

Funding period means the period of

time when NASA funding is available

for obligation by the recipient.

Intangible property and debt

instruments means, but is not limited to,

trademarks, copyrights, patents and

patent applications and such property

as loans, notes and other debt

instruments, lease agreements, stock

and other instruments of property

ownership, whether considered tangible

or intangible.

NASA means the National

Aeronautics and Space Administration

(NASA), including its authorized

representatives.

Obligations mean the amounts of

orders placed, contracts and grants

awarded, services received and similar

transactions during a given period that

require payment by the recipient during

the same or a future period.

Outlays or expenditures means

charges made to the project or program.

They may be reported on a cash or

accrual basis. For reports prepared on a

cash basis, outlays are the sum of cash

disbursements for direct charges for

goods and services, the amount of

indirect expense charged, the value of

third party in-kind contributions

applied and the amount of cash

advances and payments made to

subcontractors. For reports prepared on

an accrual basis, outlays are the sum of

cash disbursements for direct charges

for goods and services, the amount of

indirect expense incurred, the value of

in-kind contributions applied, and the

net increase (or decrease) in the

amounts owed by the recipient for

goods and other property received, for

services performed by employees,

contractors, subcontractors and other

payees and other amounts becoming

owed under programs for which no

current services or performance are

required.

Personal property means property of

any kind except real property. It may be

tangible, having physical existence, or

intangible, having no physical

existence, such as copyrights, patents,

or securities.

Prior approval means written

approval by an authorized official

evidencing prior consent.

Program income means gross income

earned by the recipient that is directly

generated by a supported activity or

earned as a result of the award (see

exclusions in § 1260.124(c) and (f)).

Program income includes, but is not

limited to, income from fees for services

performed, the use or rental of real or

personal property acquired under

federally-funded projects, the sale of

commodities or items fabricated under

an award, license fees and royalties on

patents and copyrights, and interest on

loans made with award funds. Interest

earned on advances of NASA funds is

not program income. Except as

otherwise provided in the regulations in

this subpart or the terms and conditions

of the award, program income does not

include the receipt of principal on

loans, rebates, credits, discounts, etc., or

interest earned on any of them.

Project costs means all allowable

costs, as set forth in the applicable

Federal cost principles, incurred by a

recipient and the value of the

contributions made by third parties in

accomplishing the objectives of the

award during the project period.

Project period means the period

established in the award document

during which NASA sponsorship begins

and ends.

Property means, unless otherwise

stated, real property, equipment,

intellectual property and debt

instruments.

Real property means land, including

land improvements, structures and

appurtenances thereto, but excludes

movable machinery and equipment.

Recipient means an organization

receiving an award directly from NASA

to carry out a project or program. The

term includes public and private

institutions of higher education, public

and private hospitals, and other quasipublic and private non-profit

organizations such as, but not limited

to, community action agencies, research

institutes, educational associations, and

health centers. The term may include

commercial organizations, foreign or

international organizations (such as

agencies of the United Nations) which

are recipients, subcontractors, or

contractors or subcontractors of

recipients. The term does not include

government-owned contractor-operated

facilities or research centers providing

continued support for mission-oriented,

large-scale programs that are

government-owned or controlled, or are

designated as federally-funded research

and development centers.

Research and development means all

research activities, both basic and

applied, and all development activities

that are supported at universities,

colleges, and other nonprofit

institutions. ‘‘Research’’ is defined as a

systematic study directed toward fuller

scientific knowledge or understanding

of the subject studied. ‘‘Development’’ is

the systematic use of knowledge and

understanding gained from research

directed toward the production of useful

materials, devices, systems, or methods,

including design and development of

prototypes and processes. The term

‘‘research’’ also included activities

involving the training of individuals in

research techniques where such

activities utilize the same facilities as

other research and development

activities and where such activities are

not included in the instruction function.

Small awards means a grant or

cooperative agreement not exceeding

the small purchase threshold.

Subaward means an award of

financial assistance in the form of

money, or property in lieu of money,

made under an award by a recipient to

an eligible subrecipient or by a

subrecipient to a lower tier subrecipient.

The term includes financial assistance

when provided by any legal agreement,

even if the agreement is called a

contract, but does not include

procurement of goods and services nor

does it include any form of assistance

which is excluded from the definition of

‘‘award’’ of this section.

Subrecipient means the legal entity to

which a subaward is made and which

is accountable to the recipient for the

use of the funds provided. The term

may include foreign or international

organizations (such as agencies of the

United Nations).

Supplies means all personal property

excluding equipment, intellectual

property, and debt instruments as

defined in this section, and inventions

of a contractor conceived or first

actually reduced to practice in the

performance of work under a funding

62922 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

agreement (‘‘subject inventions’’), as

defined in 37 CFR part 401, ‘‘Rights to

Inventions Made by Nonprofit

Organizations and Small Business Firms

Under Government Grants, Contracts,

and Cooperative Agreements.’’

Suspension means an action by NASA

that temporarily withdraws NASA

sponsorship under an award, pending

corrective action by the recipient or

pending a decision to terminate the

award by NASA. Suspension of an

award is a separate action from

suspension under Federal agency

regulations implementing Executive

Orders 12549 and 12689, ‘‘Debarment

and Suspension.’’

Termination means the cancellation

of Federal sponsorship, in whole or in

part, under an agreement at any time

prior to the date of completion.

Third party in-kind contributions

means the value of non-cash

contributions provided by non-Federal

third parties. Third party in-kind

contributions may be in the form of real

property, equipment, supplies and other

expendable property, and the value of

goods and services directly benefiting

and specifically identifiable to the

project or program.

Unliquidated obligations, for financial

reports prepared on a cash basis, means

the amount of obligations incurred by

the recipient that have not been paid.

For reports prepared on an accrued

expenditure basis, they represent the

amount of obliga tions incurred by the

recipient for which an outlay has not

been recorded.

Unobligated balance means the

portion of the funds authorized by

NASA that has not been obligated by the

recipient and is determined by

deducting the cumulative obligations

from the cumulative funds authorized.

Unrecovered indirect cost means the

difference between the amount awarded

and the amount which could have been

awarded under the recipient’s approved

negotiated indirect cost rate.

Working capital advance means a

procedure whereby funds are advanced

to the recipient to cover its estimated

disbursement needs for a given initial

period.

§ 1260.103 Effect on other issuances.

For awards subject to this subpart, the

requirements of this subpart apply,

except to the extent that any

administrative requirements of codified

program regulations, program manuals,

handbooks and other nonregulatory

materials are required by statute, or are

authorized in accordance with the

deviations provision in § 1260.104.

§ 1260.104 Deviations.

The Office of Management and Budget

(OMB) may grant exceptions for classes

of grants or recipients subject to the

requirements of this subpart when

exceptions are not prohibited by statute.

However, in the interest of maximum

uniformity, exceptions from the

requirements of this subpart shall be

permitted only in unusual

circumstances. NASA may apply more

restrictive requirements to a class of

recipients when approved by OMB.

NASA may apply less restrictive

requirements when awarding small

awards, except for those requirements

which are statutory. Exceptions on a

case-by-case basis may also be made by

NASA. See § 1260.6(c).

§ 1260.105 Subawards.

Unless sections of this subpart

specifically exclude subrecipients from

coverage, the provisions of this subpart

shall be applied to subrecipients

performing work under awards if such

subrecipients are institutions of higher

education, hospitals or other non-profit

organizations. State and local

government subrecipients are subject to

the provisions of 14 CFR part 1273,

‘‘Uniform Administrative Requirements

for Grants and Cooperative Agreements

to State and Local Governments.’’

Pre-Award Requirements

§ 1260.110 Purpose.

Sections 1260.111 through 1260.117

prescribe forms and instructions and

other pre-award matters to be used in

applying for NASA awards.

§ 1260.111 Pre-award policies.

(a) Use of grants and cooperative

agreements, and contracts. In each

instance, NASA shall decide on the

appropriate award instrument (i.e. grant,

cooperative agreement, or contract). The

Federal Grant and Cooperative

Agreement Act (31 U.S.C. 6301–08)

governs the use of grants, cooperative

agreements and contracts. A grant or

cooperative agreement shall be used

only when the principal purpose of a

transaction is to accomplish a public

purpose of support or stimulation

authorized by Federal statute. The

statutory criterion for choosing between

grants and cooperative agreements is

that for the latter, ‘‘substantial

involvement is expected between the

executive agency and the State, local

government, or other recipient when

carrying out the activity contemplated

in the agreement.’’ Contracts shall be

used when the principal purpose is

acquisition of property or services for

the direct benefit or use of the Federal

Government.

(b) Public notice and priority setting.

NASA notifies the public of its intended

funding priorities for discretionary grant

programs through Broad Agency

Announcements, Cooperative

Agreement Notices, Agency-Wide

program announcements, and other

approved forms of announcements.

§ 1260.112 Forms for applying for Federal

assistance.

(a) NASA shall comply with the

applicable report clearance

requirements of 5 CFR part 1320,

‘‘Controlling Paperwork Burdens on the

Public,’’ with regard to all forms used by

the NASA in place of or as a

supplement to the Standard Form 424

(SF 424) series.

(b) Applicants shall use those forms

and instructions prescribed by NASA in

§ 1260.10.

1260.113 Debarment and suspension.

NASA and recipients shall comply

with the nonprocurement debarment

and suspension rule, 14 CFR part 1265,

‘‘Governmentwide Debarment and

Suspension (Nonprocurement) and

Governmentwide Requirements for

Drug-Free Workplace (Grants),’’

implementing Executive Orders 12549

and 12689, ‘‘Debarment and

Suspension.’’ This rule restricts

contracts with certain parties that are

debarred, suspended or otherwise

excluded from or ineligible for

participation in Federal assistance

programs or activities.

§ 1260.114 Special award conditions.

If an applicant or recipient has a

history of poor performance, is not

financially stable, has a management

system that does not meet the standards

prescribed in this subpart, has not

conformed to the terms and conditions

of a previous award, or is not otherwise

responsible, NASA may impose

additional requirements as needed.

Such applicant or recipient will be

notified in writing as to the nature of the

additional requirements, the reason why

the additional requirements are being

imposed, the nature of the corrective

action needed, the time allowed for

completing the corrective actions, and

the method for requesting

reconsideration of the additional

requirements imposed. Any special

conditions shall be promptly removed

once the conditions that prompted them

have been corrected.

§ 1260.115 Metric system of measurement.

The Metric Conversion Act, as

amended by the Omnibus Trade and

Competitiveness Act (15 U.S.C. 205)

declares that the metric system is the

preferred measurement system for U.S.

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62923

trade and commerce. The Act requires

each Federal agency to establish a date

or dates in consultation with the

Secretary of Commerce, when the metric

system of measurement will be used in

the agency’s procurements, grants, and

other business-related activities. Metric

implementation may take longer where

the use of the system is initially

impractical or likely to cause significant

inefficiencies in the accomplishment of

federally-funded activities. NASA

follows the provisions of Executive

Order 12770, ‘‘Metric Usage in Federal

Government Programs.’’ NASA’s policy

with respect to the metric measurement

system is stated in NASA Policy

Directive (NPD) 8010.2, Use of the

Metric System of Measurement in

NASA Programs.

§ 1260.116 Resource Conservation and

Recovery Act (RCRA).

Under the RCRA (Pub. L. 94–580

codified at 42 U.S.C. 6962), any State

agency or agency of a political

subdivision of a State which is using

appropriated Federal funds must

comply with section 6002 of the RCRA

(42 U.S.C. 6962). Section 6002 requires

that preference be given in procurement

programs to the purchase of specific

products containing recycled materials

identified in guidelines developed by

the Environmental Protection Agency

(EPA) (40 CFR parts 247 through 254).

Accordingly, State and local institutions

of higher education, hospitals, and nonprofit organizations that receive direct

Federal awards or other Federal funds

shall give preference in their

procurement programs funded with

Federal funds to the purchase of

recycled products pursuant to the EPA

guidelines.

§ 1260.117 Certifications and

representations.

Unless prohibited by statute or

codified regulation, NASA will allow

recipients to submit certain

certifications and representations

required by statute, executive order, or

regulation on an annual basis, if the

recipients have ongoing and continuing

relationships with the agency. Annual

certifications and representations shall

be signed by responsible officials with

the authority to ensure recipients’

compliance with the pertinent

requirements.

Post-Award Requirements

Financial and Program Management

§ 1260.120 Purpose of financial and

program management.

Sections 1260.121 through 1260.128

prescribe standards for financial

management systems, methods for

making payments and rules for:

satisfying cost sharing and matching

requirements, accounting for program

income, budget revision approvals,

making audits, determining allowability

of cost, and establishing fund

availability.

§ 1260.121 Standards for financial

management systems.

(a) Recipients shall relate financial

data to performance data and develop

unit cost information whenever

practical. For awards that support

research, it should be noted that it is

generally not appropriate to develop

unit cost information.

(b) Recipients’ financial management

systems shall provide for the following.

(1) Accurate, current and complete

disclosure of the financial results of

each federally-sponsored project or

program in accordance with the

reporting requirements set forth in

§ 1260.152. If NASA requires reporting

on an accrual basis from a recipient that

maintains its records on other than an

accrual basis, the recipient shall not be

required to establish an accrual

accounting system. These recipients

may develop such accrual data for its

reports on the basis of an analysis of the

documentation on hand.

(2) Records that identify adequately

the source and application of funds for

federally-sponsored activities. These

records shall contain information

pertaining to Federal awards,

authorizations, obligations, unobligated

balances, assets, outlays, income and

interest.

(3) Effective control over and

accountability for all funds, property

and other assets. Recipients shall

adequately safeguard all such assets and

assure they are used solely for

authorized purposes.

(4) Comparison of outlays with budget

amounts for each award. Whenever

appropriate, financial information

should be related to performance and

unit cost data.

(5) Written procedures to minimize

the time elapsing between the transfer of

funds to the recipient from the U.S.

Treasury and the issuance or

redemption of checks, warrants or

payments by other means for program

purposes by the recipient. To the extent

that the provisions of the Cash

Management Improvement Act (CMIA)

(Pub. L. 101–453) govern, payment

methods of State agencies,

instrumentalities, and fiscal agents shall

be consistent with CMIA Treasury-State

Agreements or the CMIA default

procedures codified at 31 CFR part 205,

‘‘Withdrawal of Cash from the Treasury

for Advances under Federal Grant and

Other Programs.’’

(6) Written procedures for

determining the reasonableness,

allocability and allowability of costs in

accordance with the provisions of the

applicable Federal cost principles and

the terms and conditions of the award.

(7) Accounting records including cost

accounting records that are supported

by source documentation.

(c) Where the Federal Government

guarantees or insures the repayment of

money borrowed by the recipient,

NASA, at its discretion, may require

adequate bonding and insurance if the

bonding and insurance requirements of

the recipient are not deemed adequate

to protect the interest of the Federal

Government.

(d) NASA may require adequate

fidelity bond coverage where the

recipient lacks sufficient coverage to

protect the Federal Government’s

interest.

(e) Where bonds are required in the

situations described in this section, the

bonds shall be obtained from companies

holding certificates of authority as

acceptable sureties, as prescribed in 31

CFR part 223, ‘‘Surety Companies Doing

Business with the United States.’’

§ 1260.122 Payment.

(a) Payment methods shall minimize

the time elapsing between the transfer of

funds from the United States Treasury

and the issuance or redemption of

checks, warrants, or payment by other

means by the recipients. Payment

methods of State agencies or

instrumentalities shall be consistent

with Treasury-State CMIA agreements

or default procedures codified at 31 CFR

part 205.

(b)(1) Recipients are to be paid in

advance, provided they maintain or

demonstrate the willingness to

maintain:

(i) Written procedures that minimize

the time elapsing between the transfer of

funds and disbursement by the

recipient; and

(ii) Financial management systems

that meet the standards for fund control

and accountability as established in

§ 1260.121.

(2) Cash advances to a recipient

organization shall be limited to the

minimum amounts needed and be timed

to be in accordance with the actual,

immediate cash requirements of the

recipient organization in carrying out

the purpose of the approved program or

project. The timing and amount of cash

advances shall be as close as is

administratively feasible to the actual

disbursements by the recipient

organization for direct program or

62924 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

project costs and the proportionate

share of any allowable indirect costs.

(c) Whenever possible, advances shall

be consolidated to cover anticipated

cash needs for all awards made by

NASA to the recipient.

(1) Advance payments will be made

by electronic funds transfer.

(2) Advance payment mechanisms are

subject to 31 CFR part 205.

(d) [Reserved. Not used by NASA.]

(e) Reimbursement is the preferred

method when the requirements in

paragraph (b) of this section cannot be

met. NASA may also use this method on

any construction agreement, or if the

major portion of the construction project

is accomplished through private market

financing or Federal loans, and the

Federal assistance constitutes a minor

portion of the project. When the

reimbursement method is used, NASA

shall make payment within 30 days after

receipt of the billing, unless the billing

is improper.

(f) If a recipient cannot meet the

criteria for advance payments and

NASA has determined that

reimbursement is not feasible because

the recipient lacks sufficient working

capital, NASA may provide cash on a

working capital advance basis. Under

this procedure, NASA shall advance

cash to the recipient to cover its

estimated disbursement needs for an

initial period generally geared to the

awardee’s disbursing cycle. Thereafter,

NASA shall reimburse the recipient for

its actual cash disbursements. The

working capital advance method of

payment shall not be used for recipients

unwilling or unable to provide timely

advances to their subcontractor to meet

the subcontractor’s actual cash

disbursements.

(g) To the extent available, recipients

shall disburse funds available from

repayments to an interest earned on a

revolving fund, program income,

rebates, refunds, contract settlements,

audit recoveries and interest earned on

such funds before requesting additional

cash payments.

(h) Unless otherwise required by

statute, NASA will not withhold

payments for proper charges made by

recipients at any time during the project

period unless the conditions in

paragraphs (h)(1) or (2) of this section

apply.

(1) A recipient has failed to comply

with the project objectives, the terms

and conditions of the award, or NASA

reporting requirements.

(2) The recipient is delinquent in a

debt to the United States as defined in

OMB Circular A–129, ‘‘Managing

Federal Credit Programs.’’ Under such

conditions, NASA may, upon

reasonable notice, inform the recipient

that payments shall not be made for

obligations incurred after a specified

date until the conditions are corrected

or the indebtedness to the Federal

Government is liquidated.

(i) Standards governing the use of

banks and other institutions as

depositories of funds advanced under

awards are as follows.

(1) Except for situations described in

paragraph (i)(2) of this section, NASA

shall not require separate depository

accounts for funds provided to a

recipient or establish any eligibility

requirements for depositories for funds

provided to a recipient. However,

recipients must be able to account for

the receipt, obligation and expenditure

of funds.

(2) Advances of Federal funds shall be

deposited and maintained in insured

accounts whenever possible.

(j) Consistent with the national goal of

expanding the opportunities for womenowned and minority-owned business

enterprises, recipients shall be

encouraged to use women-owned and

minority-owned banks (a bank which is

owned at least 50 percent by women or

minority group members).

(k) Recipients shall maintain

advances of Federal funds in interest

bearing accounts, unless the conditions

in paragraphs (k)(1), (2), or (3) of this

section apply.

(1) The recipient receives less than

$120,000 in Federal awards per year.

(2) The best reasonably available

interest bearing account would not be

expected to earn interest in excess of

$250 per year on Federal cash balances.

(3) The depository would require an

average or minimum balance so high

that it would not be feasible within the

expected Federal and non-Federal cash

resources.

(l) Interest earned on Federal

advances deposited in interest-bearing

accounts in excess of $250 per year shall

be remitted annually to Department of

Health and Human Services (DHHS),

Payment Management System,

Rockville, MD 20852. Interest amounts

up to $250 per year may be retained by

the recipient for administrative expense.

In accordance with 31 CFR part 206,

interest should be remitted

electronically through the Automated

Clearing House (ACT) to DHHS.

Recipients without this capability may

make the remittance by check. In either

case, the remittance should be payable

to DHHS and should indicate the

recipient’s Entity Identification Number

(EIN) and reason, i.e., ‘‘Interest earned.’’

(m) Except as noted elsewhere in this

subpart, only the following forms shall

be authorized for the recipients in

requesting advances and

reimbursements. Federal agencies shall

not require more than an original and

two copies of these forms.

(1) SF–270, Request for Advance or

Reimbursement. [Reserved. Not used by

NASA.]

(2) SF–271, Outlay Report and

Request for Reimbursement for

Construction Programs. The SF–271

may be used for requesting

reimbursement for NASA construction

programs.

§ 1260.123 Cost sharing or matching.

(a) All contributions, including cash

and third party in-kind, shall be

accepted as part of the recipient’s cost

sharing or matching when such

contributions meet all of the following

criteria.

(1) Are verifiable from the recipient’s

records.

(2) Are not included as contributions

for any other federally-assisted project

or program.

(3) Are necessary and reasonable for

proper and efficient accomplishment of

project or program objectives.

(4) Are allowable under the applicable

cost principles.

(5) Are not paid by the Federal

Government under another award,

except where authorized by Federal

statute to be used for cost sharing or

matching.

(6) Are provided for in the approved

budget when required by NASA.

(7) Conform to other provisions of this

subpart, as applicable.

(b) Unrecovered indirect costs may be

included as part of cost sharing or

matching only with the prior approval

of the cognizant NASA grant officer.

(c) Values for recipient contributions

of services and property shall be

established in accordance with the

applicable cost principles. If NASA

authorizes recipients to donate

buildings or land for construction/

facilities acquisition projects or longterm use, the value of the donated

property for cost sharing or matching

shall be the lesser of paragraph (c)(1) or

(2) of this section.

(1) The certified value of the

remaining life of the property recorded

in the recipient’s accounting records at

the time of donation.

(2) The current fair market value.

However, when there is sufficient

justification, NASA may approve the

use of the current fair market value of

the donated property, even if it exceeds

the certified value at the time of

donation to the project.

(d) Volunteer services furnished by

professional and technical personnel,

consultants, and other skilled and

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62925

unskilled labor may be counted as cost

sharing or matching if the service is an

integral and necessary part of an

approved project or program. Rates for

volunteer services shall be consistent

with those paid for similar work in the

recipient’s organization. In those

instances in which the required skills

are not found in the recipient

organization, rates shall be consistent

with those paid for similar work in the

labor market in which the recipient

competes for the kind of services

involved. In either case, paid fringe

benefits that are reasonable, allowable,

and allocable may be included in the

valuation.

(e) When an employer other than the

recipient furnishes the services of an

employee, these services shall be valued

at the employee’s regular rate of pay

(plus an amount of fringe benefits that

are reasonable, allowable, and allocable,

but exclusive of overhead costs),

provided these services are in the same

skill for which the employee is normally

paid.

(f) Donated supplies may include

such items as expendable equipment,

office supplies, laboratory supplies or

workshop and classroom supplies.

Value assessed to donated supplies

included in the cost sharing or matching

share shall be reasonable and shall not

exceed the fair market value of the

property at the time of the donation.

(g) The method used for determining

cost sharing or matching for donated

equipment, buildings and land for

which title passes to the recipient may

differ according to the purpose of the

award, if the conditions in paragraph

(g)(1) or (2) of this section apply.

(1) If the purpose of the award is to

assist the recipient in the acquisition of

equipment, buildings or land, the total

value of the donated property may be

claimed as cost sharing or matching.

(2) If the purpose of the award is to

support activities that require the use of

equipment, buildings or land, normally

only depreciation or use charges for

equipment and buildings may be made.

However, the full value of equipment or

other capital assets and fair rental

charges for land may be allowed,

provided that NASA has approved the

charges.

(h) The value of donated property

shall be determined in accordance with

the usual accounting policies of the

recipient, with the following

qualifications:

(1) The value of donated land and

buildings shall not exceed its fair

market value at the time of donation to

the recipient as established by an

independent appraiser (e.g., certified

real property appraiser or General

Services Administration representative)

and certified by a responsible official of

the recipient.

(2) The value of donated equipment

shall not exceed the fair market value of

equipment of the same age and

condition at the time of donation.

(3) The value of donated space shall

not exceed the fair rental value of

comparable space as established by an

independent appraisal of comparable

space and facilities in a privately-owned

building in the same locality.

(4) The value of loaned equipment

shall not exceed its fair rental value.

(5) The following requirements

pertain to the recipient’s supporting

records for in-kind contributions from

third parties.

(i) Volunteer services shall be

documented and, to the extent feasible,

supported by the same methods used by

the recipient for its own employees.

(ii) The basis for determining the

valuation for personal service, material,

equipment, buildings and land shall be

documented.

§ 1260.124 Program income.

(a) The standards set forth in this

section shall be used to account for

program income related to projects

financed in whole or in part with

Federal funds.

(b) Program income earned during the

project period shall be retained by the

recipient and added to funds committed

to the project by NASA and the

recipient, and used to further eligible

project or program objectives, unless

NASA indicates in the terms and

conditions of the award another

alternative to account for program

income or the recipient is subject to

special award conditions, as indicated

in § 1260.114.

(c) Unless program regulations or the

terms and conditions of the award

provide otherwise, recipients shall have

no obligation to the Federal Government

regarding program income earned after

the end of the project period.

(d) Unless program regulations or the

terms and conditions of the award

provide otherwise, costs incident to the

generation of program income may be

deducted from gross income to

determine program income, provided

these costs have not been charged to the

award.

(e) Proceeds from the sale of property

shall be handled in accordance with the

requirements of the Property Standards

(See §§ 1260.130 through 1260.137).

(f) Unless program regulations or the

terms and condition of the award

provide otherwise, recipients shall have

no obligation to the Federal Government

with respect to program income earned

from license fees and royalties for

copyrighted material, patents, patent

applications, trademarks, and

inventions produced under an award.

However, Patent and Trademark

Amendments (35 U.S.C. 18) apply to

inventions made under an experimental,

developmental, or research award.

§ 1260.125 Revision of budget and

program plans.

(a) The budget plan is the financial

expression of the project or program as

approved during the award process. It

may include either the Federal and nonFederal share, or only the Federal share,

depending upon requirements in the

regulations in this subpart. It shall be

related to performance for program

evaluation purposes whenever

appropriate.

(b) Recipients are required to report

deviations from budget and program

plans, and request prior approvals for

budget and program plan revisions, in

accordance with this section.

(c) For nonconstruction awards,

recipients shall request prior approvals

from NASA for the following program or

budget related reasons, except the item

in paragraph (c)(5) of this section, which

is waived by NASA.

(1) Change in the scope or the

objective of the project or program (even

if there is no associated budget revision

requiring prior written approval).

(2) Change in a key person specified

in the application or award document.

(3) The absence for more than three

months, or a 25 percent reduction in

time devoted to the project, by the

approved project director or principal

investigator.

(4) The need for additional Federal

funding.

(5) The transfer of amounts budgeted

for indirect costs to absorb increases in

direct costs, or vice versa.

Notice: NASA waives prior approval of

such revisions.

(6) The inclusion of costs that require

prior approval in accordance with OMB

Circular A–21, ‘‘Cost Principles for

Institutions of Higher Education’’; OMB

Circular A–122, ‘‘Cost Principles for

Non-Profit Organizations’’; 45 CFR part

74 appendix E, ‘‘Principles for

Determining Costs Applicable to

Research and Development under

Grants and Contracts with Hospitals’’; or

48 CFR part 31, ‘‘Contract Cost

Principles and Procedures,’’ as

applicable.

(7) The transfer of funds allotted for

training allowances (direct payment to

trainees) to other categories of expense.

(8) Unless described in the

application and funded in the approved

62926 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

awards, the subaward, transfer or

contracting out of any work under an

award. This provision does not apply to

the purchase of supplies, material,

equipment or general support services.

(d) No other prior approval

requirements for specific items will be

imposed unless a deviation has been

approved by OMB.

(e) NASA has determined to waive the

following cost-related and

administrative prior written approvals

otherwise required by OMB Circulars

A–21, A–110 and A–122 to allow

recipients to do the following:

(1) Incur pre-award costs 90 calendar

days prior to award or more than 90

calendar days with the prior approval of

NASA. All pre-award costs are incurred

at the recipient’s risk (i.e., NASA is

under no obligation to reimburse such

costs if for any reason the recipient does

not receive an award or if the award is

less than anticipated and inadequate to

cover such costs).

(2) Initiate a one-time extension of the

expiration date of the award of up to 12

months unless one or more of the

following conditions apply. For onetime extensions, the recipient must

notify NASA in writing with the

supporting reasons and revised

expiration date at least 10 days before

the expiration date specified in the

award. This one-time extension may not

be exercised merely for the purpose of

using unobligated balances.

(i) The terms and conditions of award

prohibit the extension.

(ii) The extension requires additional

Federal funds.

(iii) The extension involves any

change in the approved objectives or

scope of the project.

(3) Unless directed otherwise by the

grant officer, carry forward unobligated

balances to subsequent funding periods.

(f) Program regulations may restrict

the transfer of funds among direct cost

categories or programs, functions and

activities for awards in which NASA’s

share of the project exceeds $100,000

and the cumulative amount of such

transfers exceeds or is expected to

exceed 10 percent of the total budget as

last approved by NASA. NASA will

ensure that any such program regulation

requirements are announced in program

guidelines or are incorporated as special

conditions in award documents. No

program regulation shall permit a

transfer that would cause any Federal

appropriation or part thereof to be used

for purposes other than those consistent

with the original intent of the

appropriation.

(g) All other changes to

nonconstruction budgets, except for the

changes described in paragraph (j) of

this section, do not require prior

approval.

(h) For construction awards,

recipients shall request prior written

approval promptly from NASA for

budget revisions whenever the

conditions in paragraphs (h) (1), (2) or

(3) of this section apply.

(1) The revision results from changes

in the scope or the objective of the

project or program.

(2) The need arises for additional

Federal funds to complete the project.

(3) A revision is desired which

involves specific costs for which prior

written approval requirements may be

imposed consistent with applicable

OMB cost principles listed in

§ 1260.127.

(i) No other prior approval

requirements for specific items will be

imposed unless a deviation has been

approved by OMB.

(j) When NASA makes an award that

provides support for both construction

and nonconstruction work, NASA

requires the recipient to request prior

approval from NASA before making any

fund or budget transfers between the

two types of work supported.

(k) For both construction and

nonconstruction awards, NASA requires

recipients to notify NASA in writing

promptly whenever the amount of

Federal authorized funds is expected to

exceed the needs of the recipient for the

project period by more than $5,000 or

five percent of the Federal award,

whichever is greater. This notification

shall not be required if an application

for additional funding is submitted for

a continuation award.

(l) When requesting approval for

budget revisions, recipients shall use

the budget forms that were used in the

application unless NASA indicates a

letter of request suffices.

(m) Within 30 calendar days from the

date of receipt of the request for budget

revisions, NASA shall review the

request and notify the recipient whether

the budget revisions have been

approved. If the revision is still under

consideration at the end of 30 calendar

days, NASA shall inform the recipient

in writing of the date when the recipient

may expect the decision.

§ 1260.126 Non-Federal audits.

(a) Recipients and subrecipients that

are institutions of higher education or

other non-profit organizations

(including hospitals) shall be subject to

the audit requirements contained in the

Single Audit Act Amendments of 1966

(31 U.S.C. 7501–7507) and revised OMB

Circular A–133, ‘‘Audits of States, Local

Governments, and Other Non-Profit

Institutions.’’

(b) State and local governments shall

be subject to the audit requirements

contained in the Single Audit Act

Amendments of 1966 (31 U.S.C. 7501–

7507) and revised OMB Circular A–133,

‘‘Audits of States, Local Governments,

and Non-Profit Organizations.’’

(c) For-profit hospitals not covered by

the audit provisions of revised OMB

Circular A–133 shall be subject to the

audit requirements of NASA.

(d) Commercial organizations shall be

subject to the audit requirements of

NASA or the prime recipient as

incorporated into the award document.

§ 1260.127 Allowable costs.

For each kind of recipient, there is a

set of Federal principles for determining

allowable costs. Allowability of costs

shall be determined in accordance with

the cost principles applicable to the

entity incurring the costs. Thus,

allowability of costs incurred by State,

local or federally-recognized Indian

tribal governments is determined in

accordance with the provisions of OMB

Circular A–87, ‘‘Cost Principles for State

and Local Governments.’’ The

allowability of costs incurred by nonprofit organizations is determined in

accordance with the provisions of OMB

Circular A–122, ‘‘Cost Principles for

Non-Profit Organizations.’’ The

allowability of costs incurred by

institutions of higher education is

determined in accordance with the

provisions of OMB Circular A–21, ‘‘Cost

Principles for Educational Institutions.’’

The allowability of costs incurred by

hospitals is determined in accordance

with the provisions of appendix E of 45

CFR part 74, ‘‘Principles for

Determining Costs Applicable to

Research and Development Under

Grants and Contracts with Hospitals.’’

The allowability of costs incurred by

commercial organizations and those

non-profit organizations listed in

Attachment C to Circular A–122 is

determined in accordance with the

provisions of the Federal Acquisition

Regulation (FAR) at 48 CFR part 31.

§ 1260.128 Period of availability of funds.

Where a funding period is specified,

a recipient may charge to the grant only

allowable costs resulting from

obligations incurred during the funding

period and any pre-award costs

authorized by NASA.

Property Standards

§ 1260.130 Purpose of property standards.

Sections 1260.131 through 1260.137

set forth uniform standards governing

management and disposition of property

furnished by the Federal Government

whose cost was charged to a project

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62927

supported by a Federal award.

Recipients shall observe these standards

under awards and NASA will not

impose additional requirements, unless

specifically required by Federal statute.

The recipient may use its own property

management standards and procedures

provided it observes the provisions of

§§ 1260.131 through 1260.137.

§ 1260.131 Insurance coverage.

Recipients shall, at a minimum,

provide the equivalent insurance

coverage for real property and

equipment acquired with Federal funds

as provided for property owned by the

recipient. Federally-owned property

need not be insured unless required by

the terms and conditions of the award.

§ 1260.132 Real property.

Unless otherwise provided by statute,

the requirements concerning the use

and disposition of real property

acquired in whole or in part under

awards are as follows:

(a) Title to real property shall vest in

the recipient subject to the condition

that the recipient shall use the real

property for the authorized purpose of

the project as long as it is needed and

shall not encumber the property without

approval of NASA.

(b) The recipient shall obtain written

approval by NASA for the use of real

property in other federally-sponsored

projects when the recipient determines

that the property is no longer needed for

the purpose of the original project. Use

in other projects shall be limited to

those under federally-sponsored

projects (i.e., awards) or programs that

have purposes consistent with those

authorized for support by NASA.

(c) When the real property is no

longer needed as provided in

paragraphs (a) and (b) of this section,

the recipient shall request disposition

instructions from NASA or its successor

Federal awarding agency. NASA shall

observe one or more of the following

disposition instructions.

(1) The recipient may be permitted to

retain title without further obligation to

the Federal Government after it

compensates the Federal Government

for that percentage of the current fair

market value of the property attributable

to the Federal participation in the

project.

(2) The recipient may be directed to

sell the property under guidelines

provided by NASA and pay the Federal

Government for that percentage of the

current fair market value of the property

attributable to the Federal participation

in the project (after deducting actual

and reasonable selling and fix-up

expenses, if any, from the sales

proceeds). When the recipient is

authorized or required to sell the

property, proper sales procedures shall

be established that provide for

competition to the extent practicable

and result in the highest possible return.

(3) The recipient may be directed to

transfer title to the property to the

Federal Government or to an eligible

third party provided that, in such cases,

the recipient shall be entitled to

compensation for its attributable

percentage of the current fair market

value of the property.

§ 1260.133 Federally-owned and exempt

property.

(a) Federally-owned property.

(1) Title to federally-owned property

remains vested in the Federal

Government. Recipients shall submit

annually an inventory listing of

federally-owned property in their

custody to NASA. Upon completion of

the award or when the property is no

longer needed, the recipient shall report

the property to NASA for further

Federal agency utilization.

(2) If NASA has no further need for

the property, it shall be declared excess

and reported to the General Services

Administration, unless NASA has

statutory authority to dispose of the

property by alternative methods (e.g.,

the authority provided by the Federal

Technology Transfer Act (15 U.S.C.

3710 (I)) to donate research equipment

to educational and non-profit

organizations in accordance with

Executive Order 12821, ‘‘Improving

Mathematics and Science Education in

Support of the National Education

Goals.’’) Appropriate instructions shall

be issued to the recipient by NASA.

(b) Exempt property. Under the

authority of the Childs Act, 31 U.S.C.

6301 to 6308, NASA has determined to

vest title to property acquired with

Federal funds in the recipient without

further obligation to NASA, including

reporting requirements.

§ 1260.134 Equipment.

(a) For grants and cooperative

agreements for the purpose of research,

NASA’s policy is to vest title to property

acquired with Federal funds in the

recipient without further obligation to

NASA, including reporting

requirements, as set forth at

§ 1260.33(b). For grants and cooperative

agreements for non-research purposes,

and in the exceptional circumstance

where a deviation is requested for a

grant or cooperative agreement for

research to not vest title in the recipient

as exempt, equipment shall vest in the

recipient subject to conditions of this

section. These policies are not

applicable to grants and cooperative

agreements with commercial firms (see

§ 1260.74(b)(2) and § 1274.401.)

(b) The recipient shall not use

equipment acquired with Federal funds

to provide services to non-Federal

outside organizations for a fee that is

less than private companies charge for

equivalent services, unless specifically

authorized by Federal statute, for as

long as the Federal Government retains

an interest in the equipment.

(c) The recipient shall use the

equipment in the project or program for

which it was acquired as long as

needed, whether or not the project or

program continues to be supported by

Federal funds and shall not encumber

the property without approval of NASA.

When no longer needed for the original

project or program, the recipient shall

use the equipment in connection with

its other federally-sponsored activities,

in the following order of priority:

(1) Activities sponsored by NASA,

then

(2) Activities sponsored by other

Federal agencies.

(d) During the time that equipment is

used on the project or program for

which it was acquired, the recipient

shall make it available for use on other

projects or programs if such other use

will not interfere with the work on the

project or program for which the

equipment was originally acquired. First

preference for such other use shall be

given to other projects or programs

sponsored by NASA; second preference

shall be given to projects or programs

sponsored by other Federal agencies. If

the equipment is owned by the Federal

Government, use on other activities not

sponsored by the Federal Government

shall be permissible if authorized by

NASA. User charges shall be treated as

program income.

(e) When acquiring replacement

equipment, the recipient may use the

equipment to be replaced as trade-in or

sell the equipment and use the proceeds

to offset the costs of the replacement

equipment subject to the approval of

NASA.

(f) The recipient’s property

management standards for equipment

acquired with Federal funds and

federally-owned equipment shall

include all of the following:

(1) Equipment records shall be

maintained accurately and shall include

the following information.

(i) A description of the equipment.

(ii) Manufacturer’s serial number,

model number, Federal stock number,

national stock number, or other

identification number.

(iii) Source of the equipment,

including the award number.

62928 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

(iv) Whether title vests in the

recipient or the Federal Government.

(v) Acquisition date (or date received,

if the equipment was furnished by the

Federal Government) and cost.

(vi) Information from which one can

calculate the percentage of Federal

participation in the cost of the

equipment (not applicable to equipment

furnished by the Federal Government).

(vii) Location and condition of the

equipment and the date the information

was reported.

(viii) Unit acquisition cost.

(ix) Ultimate disposition data,

including date of disposal and sales

price or the method used to determine

current fair market value where a

recipient compensates NASA for its

share.

(2) Equipment owned by the Federal

Government shall be identified to

indicate Federal ownership.

(3) A physical inventory of equipment

shall be taken and the results reconciled

with the equipment records at least once

every two years. Any differences

between quantities determined by the

physical inspection and those shown in

the accounting records shall be

investigated to determine the causes of

the difference. The recipient shall, in

connection with the inventory, verify

the existence, current utilization, and

continued need for the equipment.

(4) A control system shall be in effect

to insure adequate safeguards to prevent

loss, damage, or theft of the equipment.

Any loss, damage, or theft of equipment

shall be investigated and fully

documented; if the equipment was

owned by the Federal Government, the

recipient shall promptly notify NASA.

(5) Adequate maintenance procedures

shall be implemented to keep the

equipment in good condition.

(6) Where the recipient is authorized

or required to sell the equipment,

proper sales procedures shall be

established which provide for

competition to the extent practicable

and result in the highest possible return.

(g) When the recipient no longer

needs the equipment, the equipment

may be used for other activities in

accordance with the following

standards. For equipment with a current

per unit fair market value of $5,000 or

more, the recipient may retain the

equipment for other uses provided that

compensation is made to the original

Federal awarding agency or its

successor. The amount of compensation

shall be computed by applying the

percentage of Federal participation in

the cost of the original project or

program to the current fair market value

of the equipment. If the recipient has no

need for the equipment, the recipient

shall request disposition instructions

from NASA. NASA shall determine

whether the equipment can be used to

meet NASA‘s requirements. If no

requirement exists within NASA, the

availability of the equipment shall be

reported to the General Services

Administration by NASA to determine

whether a requirement for the

equipment exists in other Federal

agencies. NASA shall issue instructions

to the recipient no later than 120

calendar days after the recipient’s

request and the following procedures

shall govern.

(1) If so instructed or if disposition

instructions are not issued within 120

calendar days after the recipient’s

request, the recipient shall sell the

equipment and reimburse NASA an

amount computed by applying to the

sales proceeds the percentage of Federal

participation in the cost of the original

project or program. However, the

recipient shall be permitted to deduct

and retain from the Federal share $500

or ten percent of the proceeds,

whichever is less, for the recipient’s

selling and handling expenses.

(2) If the recipient is instructed to

ship the equipment elsewhere, the

recipient shall be reimbursed by the

Federal Government by an amount

which is computed by applying the

percentage of the recipient’s

participation in the cost of the original

project or program to the current fair

market value of the equipment, plus any

reasonable shipping or interim storage

costs incurred.

(3) If the recipient is instructed to

otherwise dispose of the equipment, the

recipient shall be reimbursed by NASA

for such costs incurred in its

disposition.

(4) NASA may reserve the right to

transfer the title to the Federal

Government or to a third party named

by NASA when such third party is

otherwise eligible under existing

statutes. Such transfer shall be subject to

the following standards.

(i) The equipment shall be

appropriately identified in the award or

otherwise made known to the recipient

in writing.

(ii) NASA shall issue disposition

instructions within 120 calendar days

after receipt of a final inventory. The

final inventory shall list all equipment

acquired with grant funds and federallyowned equipment. If NASA fails to

issue disposition instructions within the

120 calendar day period, the recipient

shall apply the standards of this section,

as appropriate. When NASA exercises

its right to take title, the equipment

shall be subject to the provisions for

federally-owned equipment.

§ 1260.135 Supplies and other expendable

property.

(a) Title to supplies and other

expendable property shall vest in the

recipient upon acquisition. If there is a

residual inventory of unused supplies

exceeding $5,000 in total aggregate

value upon termination or completion

of the project or program and the

supplies are not needed for any other

federally-sponsored project or program,

the recipient shall retain the supplies

for use on non-Federal sponsored

activities or sell them, but shall, in

either case, compensate the Federal

Government for its share. The amount of

compensation shall be computed in the

same manner as for equipment.

(b) The recipient shall not use

supplies acquired with Federal funds to

provide services to non-Federal outside

organizations for a fee that is less than

private companies charge for equivalent

services, unless specifically authorized

by Federal statute as long as the Federal

Government retains an interest in the

supplies.

§ 1260.136 Intangible property.

(a) The recipient may assert copyright

in any work that is copyrightable and

was created, or for which copyright

ownership was purchased, under an

award. NASA is granted a royalty-free,

nonexclusive and irrevocable right to

reproduce, publish, prepare derivative

works or otherwise use the work for

Federal purposes, and to authorize

others to do so.

(b) Recipients are subject to

applicable regulations governing patents

and inventions, including governmentwide regulations issued by the

Department of Commerce at 37 CFR part

401, ‘‘Rights to Inventions Made by

Nonprofit Organizations and Small

Business Firms Under Government

Grants, Contracts and Cooperative

Agreements.’’

(c) NASA has the right to:

(1) Obtain, reproduce, publish, or

otherwise use the data first produced

under an award; and

(2) Authorize others to receive,

reproduce, publish, or otherwise use

such data for Federal purposes.

(d)(1) In addition, in response to a

Freedom of Information Act (FOIA)

request for research data relating to

published research findings produced

under an award that were used by the

Federal Government in developing an

agency action that has the force and

effect of law, NASA shall request, and

the recipient shall provide, within a

reasonable time, the research data so

that they can be made available to the

public through the procedures

established under the FOIA. If NASA

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62929

obtains the research data solely in

response a FOIA request, NASA may

charge the requester a reasonable fee

equaling the full incremental cost of

obtaining the research data. This fee

should reflect costs incurred by NASA,

the recipient, and applicable

subrecipients. This fee is in addition to

any fees the agency may assess under

the FOIA (5 U.S.C. 552(a)(4)(A)).

(2) The following definitions apply for

purposes of this paragraph (d):

(i) Research data is defined as the

recorded factual material commonly

accepted in the scientific community as

necessary to validate research findings,

but not any of the following:

Preliminary analyses, drafts of scientific

papers, plans for future research, peer

reviews, or communications with

colleagues. This ‘‘recorded’’ material

excludes physical objects (e.g.,

laboratory samples). Research data does

not include:

(A) Trade secrets, commercial

information, materials necessary to be

held confidential by a researcher until

they are published, or similar

information which is protected under

law; and

(B) Personnel and medical

information and similar information the

disclosure of which would constitute a

clearly unwarranted invasion of

personal privacy, such as information

that could be used to identify a

particular person in a research study.

(ii) Published is defined as either

when:

(A) Research findings are published in

a peer-reviewed scientific or technical

journal; or

(B) A Federal agency publicly and

officially cites the research findings in

support of an agency action that has the

force and effect of law.

(iii) Used by the Federal Government

in developing an agency action that has

the force and effect of law is defined as

when an agency publicly and officially

cites the research findings in support of

an agency action that has the force and

effect of law.

(e) Title to intangible property and

debt instruments acquired under an

award or subcontract vests upon

acquisition in the recipient. The

recipient shall use that property for the

originally-authorized purpose, and the

recipient shall not encumber the

property without approval of NASA.

When no longer needed for the

originally authorized purpose,

disposition of the intangible property

shall occur in accordance with the

provisions of § 1260.134(g).

(f) Due to the substantial involvement

on the part of NASA under a

cooperative agreement, intellectual

property may be produced by Federal

employees and NASA contractors

tasked to perform NASA assigned

activities. Title to intellectual property

created under the cooperative agreement

by NASA or its contractors will initially

vest with the creating party. Certain

rights may be exchanged with the

recipient.

§ 1260.137 Property trust relationship.

Real property, equipment, intangible

property and debt instruments that are

acquired or improved with Federal

funds shall be held in trust by the

recipient as trustee for the beneficiaries

of the project or program under which

the property was acquired or improved.

NASA may require recipients to record

liens or other appropriate notices of

record to indicate that personal or real

property has been acquired or improved

with Federal funds and that use and

disposition conditions apply to the

property.

Procurement Standards

§ 1260.140 Purpose of procurement

standards.

Sections 1260.141 through 1260.148

set forth standards for use by recipients

in establishing procedures for the

procurement of supplies and other

expendable property, equipment, real

property and other services with Federal

funds. These standards are furnished to

ensure that such materials and services

are obtained in an effective manner and

in compliance with the provisions of

applicable Federal statutes and

executive orders. No additional

procurement standards or requirements

shall be imposed by NASA upon

recipients, unless specifically required

by Federal statute or executive order or

approved in accordance with the

deviation procedures of § 1260.6.

§ 1260.141 Recipient responsibilities.

The standards contained in this

section do not relieve the recipient of

the contractual responsibilities arising

under its contract(s). The recipient is

the responsible authority, without

recourse to NASA, regarding the

settlement and satisfaction of all

contractual and administrative issues

arising out of procurements entered into

in support of an award or other

agreement. This includes disputes,

claims, protests of award, source

evaluation or other matters of a

contractual nature. Matters concerning

violation of statute are to be referred to

such Federal, State or local authority as

may have proper jurisdiction.

§ 1260.142 Codes of conduct.

The recipient shall maintain written

standards of conduct governing the

performance of its employees engaged

in the award and administration of

contracts. No employee, officer, or agent

shall participate in the selection, award,

or administration of a contract

supported by Federal funds if a real or

apparent conflict of interest would be

involved. Such a conflict would arise

when the employee, officer, or agent,

any member of his or her immediate

family, his or her partner, or an

organization which employs or is about

to employ any of the parties indicated

herein, has a financial or other interest

in the firm selected for an award. The

officers, employees, and agents of the

recipient shall neither solicit nor accept

gratuities, favors, or anything of

monetary value from contractors, or

parties to subagreements. However,

recipients may set standards for

situations in which the financial interest

is not substantial or the gift is an

unsolicited item of nominal value. The

standards of conduct shall provide for

disciplinary actions to be applied for

violations of such standards by officers,

employees, or agents of the recipient.

§ 1260.143 Competition.

All procurement transactions shall be

conducted in a manner to provide, to

the maximum extent practical, open and

free competition. The recipient shall be

alert to organizational conflicts of

interest as well as noncompetitive

practices among contractors that may

restrict or eliminate competition or

otherwise restrain trade. In order to

ensure objective contractor performance

and eliminate unfair competitive

advantage, contractors that develop or

draft specifications, requirements,

statements of work, invitations for bids

and/or requests for proposals shall be

excluded from competing for such

procurements. Awards shall be made to

the bidder or offeror whose bid or offer

is responsive to the solicitation and is

most advantageous to the recipient,

price, quality and other factors

considered. Solicitations shall clearly

set forth all requirements that the bidder

or offeror shall fulfill in order for the bid

or offer to be evaluated by the recipient.

Any and all bids or offers may be

rejected when it is in the recipient’s

interest to do so.

§ 1260.144 Procurement procedures.

(a) All recipients shall establish

written procurement procedures. These

procedures shall provide for, at a

minimum, that the conditions in

paragraphs (a)(1), (2) and (3) of this

section apply.

62930 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

(1) Recipients avoid purchasing

unnecessary items.

(2) Where appropriate, an analysis is

made of lease and purchase alternatives

to determine which would be the most

economical and practical procurement

for the Federal Government.

(3) Solicitations for goods and

services provide for all of the following:

(i) A clear and accurate description of

the technical requirements for the

material, product or service to be

procured. In competitive procurements,

such a description shall not contain

features which unduly restrict

competition.

(ii) Requirements which the bidder/

offeror must fulfill and all other factors

to be used in evaluating bids or

proposals.

(iii) A description, whenever

practicable, of technical requirements in

terms of functions to be performed or

performance required, including the

range of acceptable characteristics or

minimum acceptable standards.

(iv) The specific features of ‘‘brand

name or equal’’ descriptions that

bidders are required to meet when such

items are included in the solicitation.

(v) The acceptance, to the extent

practicable and economically feasible,

of products and services dimensioned in

the metric system of measurement.

(vi) Preference, to the extent

practicable and economically feasible,

for products and services that conserve

natural resources and protect the

environment and are energy efficient.

(b) Positive efforts shall be made by

recipients to utilize small businesses,

minority-owned firms, and women’s

business enterprises, whenever possible.

Recipients of NASA awards shall take

all of the following steps to further this

goal.

(1) Ensure that small businesses,

minority-owned firms, and women’s

business enterprises are used to the

fullest extent practicable.

(2) Make information on forthcoming

opportunities available and arrange time

frames for purchases and contracts to

encourage and facilitate participation by

small businesses, minority-owned firms,

and women’s business enterprises.

(3) Consider in the contract process

whether firms competing for larger

contracts intend to subcontract with

small businesses, minority-owned firms,

and women’s business enterprises.

(4) Encourage contracting with

consortiums of small businesses,

minority-owned firms and women’s

business enterprises when a contract is

too large for one of these firms to handle

individually.

(5) Use the services and assistance, as

appropriate, of such organizations as the

Small Business Administration and the

Department of Commerce’s Minority

Business Development Agency in the

solicitation and utilization of small

businesses, minority-owned firms and

women’s business enterprises.

(c) The type of procuring instruments

used (e.g., fixed price contracts, cost

reimbursable contracts, purchase orders,

and incentive contracts) shall be

determined by the recipient but shall be

appropriate for the particular

procurement and for promoting the best

interest of the program or project

involved. The ‘‘cost-plus-a-percentageof-cost’’ or ‘‘percentage of construction

cost’’ methods of contracting shall not

be used.

(d) Contracts shall be made only with

responsible contractors who possess the

potential ability to perform successfully

under the terms and conditions of the

proposed procurement. Consideration

shall be given to such matters as

contractor integrity, record of past

performance, financial and technical

resources or accessibility to other

necessary resources. In certain

circumstances, contracts with certain

parties are restricted by 14 CFR part

1265, the implementation of Executive

Orders 12549 and 12689, ‘‘Debarment

and Suspension.’’

(e) Recipients shall, on request, make

available for NASA, pre-award review

and procurement documents, such as

request for proposals or invitations for

bids, independent cost estimates, etc.,

when any of the following conditions

apply.

(1) A recipient’s procurement

procedures or operation fails to comply

with the procurement standards in

NASA’s implementation of this subpart.

(2) The procurement is expected to

exceed the small purchase threshold

and is to be awarded without

competition or only one bid or offer is

received in response to a solicitation.

(3) The procurement, which is

expected to exceed the small purchase

threshold, specifies a ‘‘brand name’’

product.

(4) The proposed award over the

small purchase threshold is to be

awarded to other than the apparent low

bidder under a sealed bid procurement.

(5) A proposed contract modification

changes the scope of a contract or

increases the contract amount by more

than the amount of the small purchase

threshold.

§ 1260.145 Cost and price analysis.

Some form of cost or price analysis

shall be made and documented in the

procurement files in connection with

every procurement action. Price analysis

may be accomplished in various ways,

including the comparison of price

quotations submitted, market prices and

similar indicia, together with discounts.

Cost analysis is the review and

evaluation of each element of cost to

determine reasonableness, allocability

and allowability.

§ 1260.146 Procurement records.

Procurement records and files for

purchases in excess of the small

purchase threshold shall include the

following at a minimum:

(a) Basis for contractor selection,

(b) Justification for lack of

competition when competitive bids or

offers are not obtained, and

(c) Basis for award cost or price.

§ 1260.147 Contract administration.

A system for contract administration

shall be maintained to ensure contractor

conformance with the terms, conditions

and specifications of the contract and to

ensure adequate and timely follow up of

all purchases. Recipients shall evaluate

contractor performance and document,

as appropriate, whether contractors

have met the terms, conditions and

specifications of the contract.

§ 1260.148 Contract provisions.

The recipient shall include, in

addition to provisions to define a sound

and complete agreement, the following

provisions in all contracts. The

following provisions shall also be

applied to subcontracts.

(a) Contracts in excess of the small

purchase threshold shall contain

contractual provisions or conditions

that allow for administrative,

contractual, or legal remedies in

instances in which a contractor violates

or breaches the contract terms, and

provide for such remedial actions as

may be appropriate.

(b) All contracts in excess of the small

purchase threshold shall contain

suitable provisions for termination by

the recipient, including the manner by

which termination shall be effected and

the basis for settlement. In addition,

such contracts shall describe conditions

under which the contract may be

terminated for default as well as

conditions where the contract may be

terminated because of circumstances

beyond the control of the contractor.

(c) Except as otherwise required by

statute, an award that requires the

contracting (or subcontracting) for

construction or facility improvements

shall provide for the recipient to follow

its own requirements relating to bid

guarantees, performance bonds, and

payment bonds unless the construction

contract or subcontract exceeds

$100,000. For those contracts or

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62931

subcontracts exceeding $100,000, NASA

may accept the bonding policy and

requirements of the recipient, provided

the NASA has made a determination

that the Federal Government’s interest is

adequately protected. If such a

determination has not been made, the

minimum requirements shall be as

follows.

(1) A bid guarantee from each bidder

equivalent to five percent of the bid

price. The ‘‘bid guarantee’’ shall consist

of a firm commitment such as a bid

bond, certified check, or other

negotiable instrument accompanying a

bid as assurance that the bidder shall,

upon acceptance of his bid, execute

such contractual documents as may be

required within the time specified.

(2) A performance bond on the part of

the contractor for 100 percent of the

contract price. A ‘‘performance bond’’ is

one executed in connection with a

contract to secure fulfillment of all the

contractor’s obligations under such

contract.

(3) A payment bond on the part of the

contractor for 100 percent of the

contract price. A ‘‘payment bond’’ is one

executed in connection with a contract

to assure payment as required by statute

of all persons supplying labor and

material in the execution of the work

provided for in the contract.

(4) Where bonds are required in the

situations described in this section, the

bonds shall be obtained from companies

holding certificates of authority as

acceptable sureties pursuant to 31 CFR

part 223, ‘‘Surety Companies Doing

Business with the United States.’’

(d) All negotiated contracts (except

those for less than the small purchase

threshold) awarded by recipients shall

include a provision to the effect that the

recipient, NASA, the Comptroller

General of the United States, or any of

their duly authorized representatives,

shall have access to any books,

documents, papers and records of the

contractor which are directly pertinent

to a specific program for the purpose of

making audits, examinations, excerpts

and transcriptions.

(e) All contracts, including small

purchases, awarded by recipients and

their contractors shall contain the

procurement provisions of appendix A

to this subpart, as applicable.

Reports and Records

§ 1260.150 Purpose of reports and

records.

Sections 1260.151 through 1260.153

set forth the procedures for monitoring

and reporting on the recipient’s

financial and program performance and

the necessary standard reporting forms.

They also set forth record retention

requirements.

§ 1260.151 Monitoring and reporting

program performance.

(a) Recipients are responsible for

managing and monitoring each project,

program, subcontract, function or

activity supported by the award.

Recipients shall monitor subcontracts to

ensure subcontractors have met the

audit requirements as delineated in

§ 1260.126.

(b) The terms and conditions of the

award shall prescribe the frequency

with which the performance reports

shall be submitted. Except as provided

in 1260.151(f), performance reports

shall not be required more frequently

than quarterly or, less frequently than

annually. Annual reports shall be due

90 calendar days after the grant year;

quarterly or semi-annual reports shall be

due 30 days after the reporting period.

NASA may require annual reports

before the anniversary dates of multiple

year awards in lieu of these

requirements. The final performance

reports are due 90 calendar days after

the expiration or termination of the

award.

(c) If inappropriate, a final technical

or performance report shall not be

required after completion of the project.

(d) When required, performance

reports shall generally contain, for each

award, brief information on each of the

following.

(1) A comparison of actual

accomplishments with the goals and

objectives established for the period, the

findings of the investigator, or both.

Whenever appropriate and the output of

programs or projects can be readily

quantified, such quantitative data

should be related to cost data for

computation of unit costs.

(2) Reasons why established goals

were not met, if appropriate.

(3) Other pertinent information

including, when appropriate, analysis

and explanation of cost overruns or high

unit costs.

(e) Recipients shall not be required to

submit more than the original and two

copies of performance reports.

(f) Recipients shall immediately notify

NASA of developments that have a

significant impact on the awardsupported activities. Also, notification

shall be given in the case of problems,

delays, or adverse conditions which

materially impair the ability to meet the

objectives of the award. This

notification shall include a statement of

the action taken or contemplated, and

any assistance needed to resolve the

situation.

(g) NASA may make site visits, as

needed.

(h) NASA shall comply with

clearance requirements of 5 CFR part

1320 when requesting performance data

from recipients.

§ 1260.152 Financial reporting.

(a) When funds are advanced to

recipients, each recipient is required to

submit the SF 272, Report of Federal

Cash Transactions, and, when

necessary, its continuation sheet, SF

272a. NASA uses this report to monitor

cash advanced to the recipient and

obtain disbursement information for

each agreement with the recipient.

(b) NASA requires forecasts of the

recipient’s cash requirements for each of

the four months following the quarter

being reported, in the ‘‘Remarks’’

section of the report. There will be a

phase-in term for NASA adoption of an

automated 272 system not requiring the

forecast estimates. It is anticipated that

this forecast requirement will be deleted

no later than October 1, 2001.

(c) Recipients are required to submit

the original of the report to the

Financial Management Office of the

NASA Center which issued the

agreement 15 working days following

the end of each Federal fiscal quarter.

Copies will be furnished to the

appropriate grant officer.

§ 1260.153 Retention and access

requirements for records.

(a) This section sets forth

requirements for record retention and

access to records for awards to

recipients. NASA shall not impose any

other record retention or access

requirements upon recipients.

(b) Financial records, supporting

documents, statistical records, and all

other records pertinent to an award

shall be retained for a period of three

years from the date of submission of the

final expenditure report or, for awards

that are renewed quarterly or annually,

from the date of the submission of the

quarterly or annual financial report, as

authorized by NASA. The only

exceptions are the following.

(1) If any litigation, claim, or audit is

started before the expiration of the

three-year period, the records shall be

retained until all litigation, claims or

audit findings involving the records

have been resolved and final action

taken.

(2) Records for real property and

equipment acquired with Federal funds

shall be retained for 3 years after final

disposition.

(3) When records are transferred to or

maintained by NASA, the 3-year

retention requirement is not applicable

to the recipient

62932 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

(4) Indirect cost rate proposals, cost

allocations plans, etc. as specified in

§ 1260.153(g).

(c) NASA authorizes that copies of

original records may be substituted for

the original records.

(d) NASA shall request transfer of

certain records to its custody from

recipients when it determines that the

records possess long term retention

value. However, in order to avoid

duplicate record keeping, NASA may

make arrangements for recipients to

retain any records that are continuously

needed for joint use.

(e) NASA, the Inspector General,

Comptroller General of the United

States, or any of their duly authorized

representatives, have the right of timely

and unrestricted access to any books,

documents, papers, or other records of

recipients that are pertinent to the

awards, in order to make audits,

examinations, excerpts, transcripts and

copies of such documents. This right

also includes timely and reasonable

access to a recipient’s personnel for the

purpose of interview and discussion

related to such documents. The rights of

access in this paragraph are not limited

to the required retention period, but

shall last as long as records are retained.

(f) Unless required by statute, NASA

shall place no restrictions on recipients

that limit public access to the records of

recipients that are pertinent to an

award, except when NASA can

demonstrate that such records shall be

kept confidential and would have been

exempted from disclosure pursuant to

the Freedom of Information Act (5

U.S.C. 552) if the records had belonged

to NASA.

(g) Indirect cost rate proposals, cost

allocations plans, etc. Paragraphs (g)(1)

and (g)(2) of this section apply to the

following types of documents, and their

supporting records: Indirect cost rate

computations or proposals, cost

allocation plans, and any similar

accounting computations of the rate at

which a particular group of costs is

chargeable (such as computer usage

chargeback rates or composite fringe

benefit rates).

(1) If submitted for negotiation. If the

recipient submits to NASA or the

subrecipient submits to the recipient the

proposal, plan, or other computation to

form the basis for negotiation of the rate,

then the 3-year retention period for its

supporting records starts on the date of

such submission.

(2) If not submitted for negotiation. If

the recipient is not required to submit

to NASA or the subrecipient is not

required to submit to the recipient the

proposal, plan, or other computation for

negotiation purposes, then the 3-year

retention period for the proposal, plan,

or other computation and its supporting

records starts at the end of the fiscal

year (or other accounting period)

covered by the proposal, plan, or other

computation.

Termination and Enforcement

§ 1260.160 Purpose of termination and

enforcement.

Sections 1260.61 and 1260.62 set

forth uniform suspension, termination

and enforcement procedures.

§ 1260.161 Termination.

(a) Awards may be terminated in

whole or in part only if the conditions

in paragraph (a)(1), (2) or (3) of this

section apply.

(1) By NASA, if a recipient materially

fails to comply with the terms and

conditions of an award.

(2) By NASA with the consent of the

recipient, in which case the two parties

shall agree upon the termination

conditions, including the effective date

and, in the case of partial termination,

the portion to be terminated.

(3) By the recipient upon sending to

NASA written notification setting forth

the reasons for such termination, the

effective date, and, in the case of partial

termination, the portion to be

terminated.

However, if NASA determines in the

case of partial termination that the

reduced or modified portion of the grant

will not accomplish the purposes for

which the grant was made, it may

terminate the grant in its entirety under

either paragraphs (a)(1) or (2) of this

section.

(b) If costs are allowed under an

award, the responsibilities of the

recipient referred to in § 1260.171(a),

including those for property

management as applicable, shall be

considered in the termination of the

award, and provision shall be made for

continuing responsibilities of the

recipient after termination, as

appropriate.

§ 1260.162 Enforcement.

(a) Remedies for noncompliance. If a

recipient materially fails to comply with

the terms and conditions of an award,

whether stated in a Federal statute,

regulation, assurance, application, or

notice of award, NASA may, in addition

to imposing any of the special

conditions outlined in § 1260.114, take

one or more of the following actions, as

appropriate in the circumstances.

(1) Temporarily withhold cash

payments pending correction of the

deficiency by the recipient or more

severe enforcement action by NASA.

(2) Disallow (that is, deny both use of

funds and any applicable matching

credit 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.

(5) Take other remedies that may be

legally available.

(b) Hearings and appeals. In taking an

enforcement action, NASA shall provide

the recipient an opportunity for hearing,

appeal, or other administrative

proceeding to which the recipient is

entitled under any statute or regulation

applicable to the action involved.

(c) Effects of suspension and

termination. Costs of a recipient

resulting from obligations incurred by

the recipient during a suspension or

after termination of an award are not

allowable unless NASA expressly

authorizes them in the notice of

suspension or termination or

subsequently. Other recipient costs

during suspension or after termination

which are necessary and not reasonably

avoidable are allowable if the conditions

in paragraph (c)(1) and (2) of this

section apply.

(1) The costs result from obligations

which were properly incurred by the

recipient before the effective date of

suspension or termination, are not in

anticipation of it, and in the case of a

termination, are noncancellable.

(2) The costs would be allowable if

the award were not suspended or

expired normally at the end of the

funding period in which the termination

takes effect.

(d) Relationship to debarment and

suspension. The enforcement remedies

identified in this section, including

suspension and termination, do not

preclude a recipient from being subject

to debarment and suspension under

Executive Orders 12549 and 12689 and

14 CFR part 1265 (see § 1260.113).

After the Award Requirements

§ 1260.170 Purpose.

Sections 1260.171 through 1260.173

contain closeout procedures and other

procedures for subsequent

disallowances and adjustments.

§ 1260.171 Closeout procedures.

(a) Recipients shall submit, within 90

calendar days after the date of

completion of the award, all financial,

performance, and other reports as

required by the terms and conditions of

the award. NASA may approve

extensions when requested by the

recipient.

(b) Unless NASA authorizes an

extension, a recipient shall liquidate all

obligations incurred under the award

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62933

not later than 90 calendar days after the

funding period or the date of

completion as specified in the terms and

conditions of the award or in agency

implementing instructions.

(c) NASA shall make prompt

payments to a recipient for allowable

reimbursable costs under the award

being closed out.

(d) The recipient shall promptly

refund any balances of unobligated cash

that NASA has advanced or paid and

that is not authorized to be retained by

the recipient for use in other projects.

OMB Circular A–129 governs

unreturned amounts that become

delinquent debts.

(e) When authorized by the terms and

conditions of the award, NASA shall

make a settlement for any upward or

downward adjustments to the Federal

share of costs after closeout reports are

received.

(f) The recipient shall account for any

real and personal property acquired

with Federal funds or received from the

Federal Government in accordance with

§§ 1260.131 through 1260.137.

(g) In the event a final audit has not

been performed prior to the closeout of

an award, NASA shall retain the right to

recover an appropriate amount after

fully considering the recommendations

on disallowed costs resulting from the

final audit.

§ 1260.172 Subsequent adjustments and

continuing responsibilities.

(a) The closeout of an award does not

affect any of the following.

(1) The right of NASA to disallow

costs and recover funds on the basis of

a later audit or other review.

(2) The obligation of the recipient to

return any funds due as a result of later

refunds, corrections, or other

transactions.

(3) Audit requirements in § 1260.126.

(4) Property management

requirements in §§ 1260.131 through

1260.137.

(5) Records retention as required in

§ 1260.153.

(b) After closeout of an award, a

relationship created under an award

may be modified or ended in whole or

in part with the consent of the NASA

and the recipient, provided the

responsibilities of the recipient referred

to in § 1260.173(a), including those for

property management as applicable, are

considered and provisions made for

continuing responsibilities of the

recipient, as appropriate.

§ 1260.173 Collection of amounts due.

(a) Any funds paid to a recipient in

excess of the amount to which the

recipient is finally determined to be

entitled under the terms and conditions

of the award constitute a debt to the

Federal Government. If not paid within

a reasonable period after the demand for

payment, NASA may reduce the debt by

the provisions of paragraph (a)(1), (2) or

(3) of this section

(1) Making an administrative offset

against other requests for

reimbursements.

(2) Withholding advance payments

otherwise due to the recipient.

(3) Taking other action permitted by

statute.

(b) Except as otherwise provided by

law, NASA shall charge interest on an

overdue debt in accordance with 4 CFR

chapter II, ‘‘Federal Claims Collection

Standards.’’

Appendix A to Subpart B of Part 1260—

Contract Provisions

All contracts awarded by a recipient,

including small purchases, shall contain the

following provisions as applicable:

1. Equal Employment Opportunity. All

contracts shall contain a provision requiring

compliance with Executive Order 11246,

‘‘Equal Employment Opportunity,’’ as

amended by Executive Order 11375,

‘‘Amending Executive Order 11246 Relating

to Equal Employment Opportunity,’’ and as

supplemented by regulations at 41 CFR part

60, ‘‘Office of Federal Contract Compliance

Programs, Equal Employment Opportunity,

Department of Labor.’’

2. Copeland ‘‘Anti-Kickback’’ Act (18

U.S.C. 874 and 40 U.S.C. 276c). All contracts

in excess of $2,000 for construction or repair

awarded by recipients shall include a

provision for compliance with the Copeland

‘‘Anti-Kickback’’ Act (18 U.S.C. 874), as

supplemented by Department of Labor

regulations (29 CFR part 3, ‘‘Contractors and

Subcontractors on Public Building or Public

Work Financed in Whole or in Part by Loans

or Grants from the United States’’). The Act

provides that each contractor shall be

prohibited from inducing, by any means, any

person employed in the construction,

completion, or repair of public work, to give

up any part of the compensation to which he

is otherwise entitled. The recipient shall

report all suspected or reported violations to

NASA.

3. Davis-Bacon Act, as amended (40 U.S.C.

276a to a–7). When required by Federal

program legislation, all construction

contracts awarded by the recipients of more

than $2,000 shall include a provision for

compliance with the Davis-Bacon Act (40

U.S.C. 276a to a–7) and as supplemented by

Department of Labor regulations (29 CFR part

5, ‘‘Labor Standards Provisions Applicable to

Contracts Governing Federally Financed and

Assisted Construction’’). Under this Act,

contractors shall be required to pay wages to

laborers and mechanics at a rate not less than

the minimum wages specified in a wage

determination made by the Secretary of

Labor. In addition, contractors shall be

required to pay wages not less than once a

week. The recipient shall place a copy of the

current prevailing wage determination issued

by the Department of Labor in each

solicitation and the award of a contract shall

be conditioned upon the acceptance of the

wage determination. The recipient shall

report all suspected or reported violations to

the NASA.

4. Contract Work Hours and Safety

Standards Act (40 U.S.C. 327–333). Where

applicable, all contracts awarded by

recipients in excess of $2,000 for

construction contracts and in excess of

$2,500 for other contracts that involve the

employment of mechanics or laborers shall

include a provision for compliance with

sections 102 and 107 of the Contract Work

Hours and Safety Standards Act (40 U.S.C.

327–333), as supplemented by Department of

Labor regulations (29 CFR part 5). Under

subsection 102 of the Act, each contractor

shall be required to compute the wages of

every mechanic and laborer on the basis of

a standard work week of 40 hours. Work in

excess of the standard work week is

permissible provided that the worker is

compensated at a rate of not less than 11⁄2

times the basic rate of pay for all hours

worked in excess of 40 hours in the work

week. Section 107 of the Act is applicable to

construction work and provides that no

laborer or mechanic shall be required to work

in surroundings or under working conditions

which are unsanitary, hazardous or

dangerous. These requirements do not apply

to the purchases of supplies or materials or

articles ordinarily available on the open

market, or contracts for transportation or

transmission of intelligence.

5. Rights to Inventions Made Under a

Contract or Agreement. Contracts or

agreements for the performance of

experimental, developmental, or research

work shall provide for the rights of the

Federal Government and the recipient in any

resulting invention in accordance with 37

CFR part 401, ‘‘Rights to Inventions Made by

Nonprofit Organizations and Small Business

Firms Under Government Grants, Contracts

and Cooperative Agreements,’’ and any

implementing regulations issued by the

awarding agency.

6. Clean Air Act (42 U.S.C. 7401 et seq.)

and the Federal Water Pollution Control Act

(33 U.S.C. 1251 et seq.), as amended.

Contracts of amounts in excess of $100,000

shall contain a provision that requires the

recipient to agree to comply with all

applicable standards, orders or regulations

issued pursuant to the Clean Air Act (42

U.S.C. 7401 et seq.) and the Federal Water

Pollution Control Act as amended (33 U.S.C.

1251 et seq.). Violations shall be reported to

NASA and the Regional Office of the

Environmental Protection Agency (EPA).

7. Byrd Anti-Lobbying Amendment (31

U.S.C. 1352). Contractors who apply or bid

for an award of $100,000 or more shall file

the required certification. Each tier certifies

to the tier above that it will not and has not

used Federal appropriated funds to pay any

person or organization for influencing or

attempting to influence an officer or

employee of any agency, a member of

Congress, officer or employee of Congress, or

an employee of a member of Congress in

connection with obtaining any Federal

contract, grant or any other award covered by

62934 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

31 U.S.C. 1352. Each tier shall also disclose

any lobbying with non-Federal funds that

takes place in connection with obtaining any

Federal award. Such disclosures are

forwarded from tier to tier up to the

recipient.

8. Debarment and Suspension (Executive

Orders 12549 and 12689). No contract shall

be made to parties listed on the General

Services Administration’s List of Parties

Excluded from Federal Procurement or

Nonprocurement Programs in accordance

with Executive Orders 12549 and 12689,

‘‘Debarment and Suspension.’’ This list

contains the names of parties debarred,

suspended, or otherwise excluded by

agencies, and contractors declared ineligible

under statutory or regulatory authority other

than Executive Order 12549. Contractors

with awards that exceed the small purchase

threshold shall provide the required

certification regarding its exclusion status

and that of its principal employees.

2. Part 1274 is revised to read as

follows:

PART 1274—COOPERATIVE

AGREEMENTS WITH COMMERCIAL

FIRMS

Subpart A—General

Sec.

1274.101 Purpose.

1274.102 Definitions.

1274.103 Effect on other issuances.

1274.104 Deviations.

1274.105 Approval of Cooperative

Agreement Notices (CANs) and

cooperative agreements.

Subpart B—Pre-Award Requirements

1274.201 Purpose.

1274.202 Solicitations and proposals.

1274.203 Intellectual property.

1274.204 Evaluation and selection.

1274.205 Award procedures.

1274.206 Document format and numbering.

1274.207 Distribution of cooperative

agreements.

Subpart C—Administration

1274.301 Delegation of administration.

1274.302 Transfers, novations, and change

of name agreements.

Subpart D—Government Property

1274.401 Government property.

Subpart E—Procurement Standards

1274.501 Subcontracts.

Subpart F—Reports and Records

1274.601 Retention and access

requirements for records.

Subpart G—Suspension or Termination

1274.701 Suspension or termination.

Subpart H—After-the-Award Requirements

1274.801 Purpose.

1274.802 Closeout procedures.

1274.803 Subsequent adjustments and

continuing responsibilities.

Subpart I—Provisions and Special

Conditions

1274.901 Other provisions and special

conditions.

1274.902 Purpose.

1274.903 Responsibilities.

1274.904 Resource sharing requirements.

1274.905 Rights in data.

1274.906 Designation of new technology

representative and patent representative.

1274.907 Disputes.

1274.908 Milestone payments.

1274.909 Term of this agreement.

1274.910 Authority.

1274.911 Patent rights.

1274.912 Patent rights—retention by the

Recipient (large business).

1274.913 Patent rights—retention by the

Recipient (small business).

1274.914 Requests for waiver of rights—

large business.

1274.915 Restrictions on sale or transfer of

technology to foreign firms or

institutions.

1274.916 Liability and risk of loss.

1274.917 Additional funds.

1274.918 Incremental funding.

1274.919 Cost principles and accounting

standards.

1274.920 Responsibilities of the NASA

Technical Officer.

1274.921 Publications and reports: Nonproprietary research results.

1274.922 Suspension or termination.

1274.923 Equipment and other property.

1274.924 Civil rights.

1274.925 Subcontracts.

1274.926 Clean Air-Water Pollution Control

Acts.

1274.927 Debarment and suspension and

Drug-Free Workplace.

1274.928 Foreign national employee

investigative requirements.

1274.929 Restrictions on lobbying.

1274.930 Travel and transportation.

1274.931 Electronic funds transfer payment

methods.

1274.932 Retention and examination of

records.

1274.933 Summary of recipient reporting

responsibilities.

1274.934 Safety.

Appendix to Part 1274—Listing of Exhibits

Exhibit A to Part 1274—Contract Provisions

Exhibit B to Part 1274—Reports

Authority: 31 U.S.C. 6301 to 6208; 42

U.S.C. 2451 et seq.

Subpart A—General

§ 1274.101 Purpose.

(a) This part establishes uniform

administrative requirements for NASA

cooperative agreements awarded to

commercial firms. Cooperative

agreements are ordinarily entered into

with commercial firms to—

(1) Support research and

development;

(2) Provide technology transfer from

the Government to the recipient; or

(3) Develop a capability among U.S.

firms to potentially enhance U.S.

competitiveness.

(b) An award may not be made to a

foreign government. Award to foreign

firms is not precluded. The approval of

the Associate Administrator for

Procurement is required to exclude

foreign firms from submitting proposals.

§ 1274.102 Definitions.

Administrator. The Administrator or

Deputy Administrator of NASA.

Associate Administrator for

Procurement. The head of the Office of

Procurement, NASA Headquarters

(Code H).

Cash contributions. The recipient’s

cash outlay, including the outlay of

money contributed to the recipient by

third parties.

Closeout. The process by which

NASA determines that all applicable

administrative actions and all required

work of the award have been completed

by the recipient and NASA.

Commercial item. The definition in

FAR 2.101 is applicable.

Cooperative agreement. As defined by

31 U.S.C. 6305, cooperative agreements

are financial assistance instruments

used to stimulate or support activities

for authorized purposes and in which

the Government participates

substantially in the performance of the

effort. This part covers only cooperative

agreements with commercial firms.

Cooperative agreements with

universities and non-profit

organizations are covered by 14 CFR

part 1260.

Cost sharing or matching. That

portion of project or program costs not

borne by the Federal Government except

that the recipient’s contribution may be

reimbursable under other Government

awards as allowable IR&D costs

pursuant to 48 CFR (NFS) 1831.205–18.

Date of completion. The date on

which all work under an award is

completed or the date on the award

document, or any supplement or

amendment thereto, on which NASA

sponsorship ends.

Days. Calendar days, unless otherwise

indicated.

Government furnished equipment.

Equipment in the possession of, or

acquired directly by, the Government

and subsequently delivered, or

otherwise made available, to a recipient

and equipment procured by the

recipient with Government funds under

a cooperative agreement.

Grant Officer. A Government

employee who has been delegated the

authority to negotiate, award, or

administer grants or cooperative

agreements. A Contracting Officer may

serve as a Grant Officer if authorized by

installation procurement regulations.

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62935

Incremental funding. A method of

funding a cooperative agreement where

the funds initially allotted to the

cooperative agreement are less than the

award amount. Additional funding is

added as described in § 1274.918.

Recipient. An organization receiving

financial assistance under a cooperative

agreement to carry out a project or

program. A recipient may be an

individual firm, a consortium, a

partnership, etc.

Resource contribution. The total value

of resources provided by either party to

the cooperative agreement including

both cash and non-cash contributions.

Support contractor. A NASA

contractor performing part or all of the

NASA responsibilities under a

cooperative agreement.

Suspension. An action by NASA or

the recipient that temporarily

discontinues efforts under an award,

pending corrective action or pending a

decision to terminate the award.

Suspension of an award is a separate

action from suspension under Federal

agency regulations implementing

Executive Orders 12549 and 12689,

‘‘Debarment and Suspension.’’

Technical officer. The official of the

cognizant NASA office who is

responsible for monitoring the technical

aspects of the work under a cooperative

agreement. A Contracting Officer’s

Technical Representative may serve as a

Technical Officer.

Termination. The cancellation of a

cooperative agreement in whole or in

part, by either party at any time prior to

the date of completion.

§ 1274.103 Effect on other issuances.

For awards subject to this subpart, the

requirements of this subpart apply,

except to the extent that any

administrative requirements of codified

program regulations, program manuals,

handbooks and other nonregulatory

materials are required by statute, or are

authorized in accordance with the

deviations provision in 1274.104.

§ 1274.104 Deviations.

(a) The Associate Administrator for

Procurement may grant exceptions for

classes of or individual cooperative

agreements from the requirements of

this part when exceptions are not

prohibited by statute.

(b) A deviation is required for any of

the following:

(1) When a prescribed provision set

forth in this part for use verbatim is

modified or omitted.

(2) When a provision is set forth in

this part, but not prescribed for use

verbatim, and the installation

substitutes a provision which is

inconsistent with the intent, principle,

and substance of the prescribed

provision.

(3) When a NASA form or other form

is prescribed by this part, and that form

is altered or another form is used in its

place.

(4) When limitations, imposed by this

part upon the use of a provision, form,

procedure, or any other action, are not

adhered to.

(c) Requests for authority to deviate

from this part will be forwarded to

Headquarters, Program Operations

Division (Code HS). Such requests,

signed by the Procurement Officer, shall

contain as a minimum:

(1) A full description of the deviation

and identification of the regulatory

requirement from which a deviation is

sought.

(2) Detailed rationale for the request,

including any pertinent background

information.

(3) The name of the recipient and

identification of the cooperative

agreement affected, including the dollar

value.

(4) A statement as to whether the

deviation has been requested

previously, and, if so, circumstances of

the previous request(s).

(5) A copy of legal counsel’s

concurrence or comments.

§ 1274.105 Approval of Cooperative

Agreement Notices (CANs) and cooperative

agreements.

(a) As soon as possible after the initial

decision is made by a Headquarters

program office or Center procurement

personnel to use the CAN process, the

cognizant program office or

procurement office shall notify the

Associate Administrator for

Procurement (Code HS) of the intent to

use a CAN in all cases where the total

Government funds to be awarded in

response to CAN proposals is expected

to equal or exceed $10 million. All such

notifications, as described in this

section, shall be concurred in by the

Procurement Officer. This requirement

also applies in those cases where an

unsolicited proposal is received and a

decision is made to award a cooperative

agreement in which the recipient (or

one or more members of a ‘‘team’’ of

recipients) is a commercial firm and the

total Government funds are expected to

equal or exceed $10 million.

(b) The required notification is to be

accomplished by sending an electronic

mail (e-mail) message to the following

address at NASA Headquarters:

can@hq.nasa.gov. The notification must

include the following information, as a

minimum:

(1) Identification of the cognizant

center and program office,

(2) Description of the proposed

program for which proposals are to be

solicited,

(3) Rationale for decision to use a

CAN rather than other types of

solicitations,

(4) The amount of Government

funding to be available for awards,

(5) Estimate of the number of

cooperative agreements to be awarded

as a result of the CAN,

(6) The percentage of cost-sharing to

be required,

(7) Tentative schedule for release of

CAN and award of cooperative

agreements,

(8) If the term of the cooperative

agreement is anticipated to exceed 3

years and/or if the Government cash

contribution is expected to exceed

$20M, address anticipated changes, if

any, to the provisions (see 1274.202(f)),

and

(9) If the cooperative agreement is for

programs/projects that provide

aerospace products or capabilities, (i.e.,

provide space and aeronautics, flight

and ground systems, technologies and

operations), a statement that the

requirements of NASA Policy Directive

(NPD) 7120.4 and NASA Policy

Guidance (NPG) 7120.5 have been met.

This affirmative statement will include

a specific reference to the signed

Program Commitment Agreement.

(c) Code HS will respond by e-mail

message to the sender, with a copy of

the message to the Procurement Officer

and the Office of Small and

Disadvantaged Business Utilization,

within 5 working days of receipt of this

initial notification. The response will

address the following:

(1) Whether Code HS agrees or

disagrees with the appropriateness for

using a CAN for the effort described,

(2) Whether Code HS will require

review and approval of the CAN before

its issuance,

(3) Whether Code HS will require

review and approval of the selected

offeror’s cost sharing arrangement (e.g.,

cost sharing percentage; type of

contribution (cash, labor, etc.)), and

(4) Whether Code HS will require

review and approval of the resulting

cooperative agreement(s).

(d) If a response from Code HS is not

received within 5 working days of

notification, the program office or center

may proceed with release of the CAN

and award of the cooperative

agreements as described.

Subpart B—Pre-Award Requirements

§ 1274.201 Purpose.

Sections 1274.202 through 1274.207

prescribe forms and instructions and

address other pre-award matters.

62936 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

§ 1274.202 Solicitations and proposals.

(a) Competition. Consistent with 31

U.S.C. 6301(3), NASA uses competitive

procedures to award cooperative

agreements whenever possible. An

award will normally be made as a result

of a Cooperative Agreement Notice

(CAN) which envisions a cooperative

agreement as the award instrument. A

Commerce Business Daily synopsis or a

synopsis on the NASA Acquisition

Internet Service will be used to

publicize the CAN.

(b) Unsolicited proposals. (1) An

award may be made as a result of an

unsolicited proposal. The unsolicited

proposal must evidence a unique and

innovative idea or approach which is

not the subject of a current or

anticipated solicitation. When a

cooperative agreement is awarded as a

result of an unsolicited proposal, a

Commerce Business Daily synopsis and

a synopsis on the NASA Acquisition

Internet Service will be used to provide

an opportunity for other firms/consortia

to express an interest in the agreement

unless the exception in 48 CFR (FAR)

5.202(a)(8) applies. Respondents should

be given a minimum of thirty days to

respond. If interest is expressed, a

decision must be made to proceed with

the award or to issue a solicitation for

competitive proposals.

(2) Prior to an award made as the

result of an unsolicited proposal, the

award must be approved by the

Procurement Officer if NASA’s total

resource contribution is below $5

million. Center Director approval is

required if NASA’s total resource

contribution is $5 million or more. For

Headquarters cooperative agreements,

approval by the Associate Administrator

for Procurement is required if NASA’s

total resource contribution is $5 million

or more.

(c) Cost and payment matters. (1) The

expenditure of Government funds by the

recipient and the allowability of costs

recognized as a resource contribution by

the recipient shall be governed by the

FAR cost principles, 48 CFR part 31. If

the recipient is a consortium which

includes non-commercial entities as

members, cost allowability for those

members will be determined as follows:

(i) Allowability of costs incurred by

State, local or federally-recognized

Indian tribal governments is determined

in accordance with the provisions of

OMB Circular A–87, ‘‘Cost Principles

for State and Local Governments.’’

(ii) The allowability of costs incurred

by non-profit organizations is

determined in accordance with the

provisions of OMB Circular A–122,

‘‘Cost Principles for Non-Profit

Organizations.’’

(iii) The allowability of costs incurred

by institutions of higher education is

determined in accordance with the

provisions of OMB Circular A–21, ‘‘Cost

Principles for Educational Institutions.’’

(iv) The allowability of costs incurred

by hospitals is determined in

accordance with the provisions of

Appendix E of 45 CFR part 74,

‘‘Principles for Determining Costs

Applicable to Research and

Development Under Grants and

Contracts with Hospitals.’’ Recipient’s

method for accounting for the

expenditure of funds must be consistent

with Generally Accepted Accounting

Principles.

(2) A substantial resource

contribution on the part of the recipient

is required. The recipient is expected to

contribute at least 50 percent of the total

resources required to accomplish the

cooperative agreement. Recipient

contributions may be either cash or noncash or both. In those cases in which a

contribution of less than 50 percent is

anticipated from the recipient, approval

of the Associate Administrator for

Procurement (Code HS) is required prior

to award. The request for approval

should address the evaluation factor in

the solicitation and how the proposal

accomplishes those objectives to such a

degree that a share ratio of less than 50

percent is warranted.

(3) Cooperative agreements are funded

by NASA in a fixed amount. Payments

in fixed amounts will be made by NASA

in accordance with ‘‘Milestone Billings’’

which are discussed in paragraph (c)(4)

of this section. If the recipient

completes the final milestone, final

payment is made, and NASA will have

completed its financial responsibilities

under the agreement. However, if the

cooperative agreement is terminated

prior to achievement of all milestones,

NASA’s funding will be limited to

milestone payments already made plus

NASA’s share of costs required by the

recipient to meet commitments which

had in the judgment of NASA become

firm prior to the effective date of

termination and are otherwise

appropriate. In no event shall these

additional costs or payment exceed the

amount of the next payable milestone

billing amount.

(4) Milestone billings is the method of

payment to the recipient under

cooperative agreements. Performance

based milestones are used as the basis

of establishing a set of verifiable

milestones for payment purposes. Each

milestone payment shall be established

so that the Government payment is at

the same share ratio as the cooperative

agreement share ratio. If the recipient is

a consortium, the Articles of

Collaboration is required to contain an

extensive list of performance based

milestones that the consortium has

agreed to. Generally, payments should

not be made more than once monthly;

ideally, payments will be made about

every 60 to 90 days but in all cases

should be made on the basis of

verifiable, significant events as opposed

to the passage of time. The last payment

milestone should be large enough to

ensure that the recipient completes its

responsibilities under the cooperative

agreement (or funds should be reserved

for payment until after completion of

the cooperative agreement). The

Government technical officer must

verify completion of each milestone to

the Grant Officer as part of the payment

process.

(5) Cooperative agreements may be

incrementally funded subject to the

following:

(i) The total value of the NASA cash

contribution is $50,000 or more.

(ii) The period of performance

overlaps the succeeding fiscal year.

(iii) The funds are not available to

fully fund the cooperative agreement at

the time of award.

(6) Cost sharing requirements on

cooperative agreements with

commercial firms are based on section

23 of OMB Circular A–110. Only cash

or certain non-cash resources are

acceptable sources for the recipient

contribution to a cooperative agreement.

Acceptable non-cash resources include

such items as purchased equipment,

equipment, labor, office space, etc. The

actual or imputed value of intellectual

property such as patent rights, data

rights, trade secrets, etc., are not

acceptable as sources for the recipient

contribution. The Government’s cost

share should fully reflect the total cost

of the cash and non-cash contributions.

With respect to the non-cash

contribution, a fully burdened cost

estimate of personnel, facilities, and

other expenses should be utilized. It is

recognized that this will be an estimate

in some cases, but the cost principles in

section 9091–5 of the NASA Financial

Management Manual should be adhered

to.

(7) Recipients shall not be paid a

profit under cooperative agreements.

Profit may be paid by the recipient to

subcontractors, if the subcontractor is

not part of the offering team and the

subcontract is an arms-length

relationship.

(8) The recipient’s resource share of

the cooperative agreement may be

allocated as part of its IR&D program.

(9) The CAN must provide a

description of the non-cash Government

contribution (personnel, equipment,

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62937

facilities, etc.) as part of the

Government’s contribution to the

cooperative agreement in addition to

funding. The offeror may propose that

additional non-cash Government

resources be provided under two

conditions. First, the offeror is

responsible for verifying the availability

of the resources and their suitability for

their intended purpose and, second,

those resources are part of the

Government contribution (which must

be matched by the recipient) and paid

for directly by the awarding

organization.

(d) Consortia as recipients. (1) The

use of consortia as recipients for

cooperative agreements is encouraged.

Consortia will tend to bring to a

cooperative agreement a broader range

of capabilities and resources. A

consortium is a group of organizations

that enter into an agreement to

collaborate for the purposes of the

cooperative agreement with NASA. The

agreement to collaborate can take the

form of a legal entity such as a

partnership or joint venture but it is not

necessary that such an entity be created.

A consortium may be made up of firms

which normally compete for

commercial or Government business or

may be made up of firms which perform

complementary functions in a given

industry. The inclusion of non-profit or

educational institutions, small

businesses, or small disadvantaged

businesses in the consortium could be

particularly valuable in ensuring that

the results of the consortium’s activities

are disseminated.

(2) Key to the success of the

cooperative agreement with a

consortium is the consortium’s Articles

of Collaboration, which is a definitive

description of the roles and

responsibilities of the consortium’s

members. It should also address to the

extent appropriate: Commitments of

financial, personnel, facilities and other

resources, a detailed milestone chart of

consortium activities, accounting

requirements, subcontracting

procedures, disputes, term of the

agreement, insurance and liability

issues, internal and external reporting

requirements, management structure of

the consortium, obligations of

organizations withdrawing from the

consortia, allocation of data and patent

rights among the consortia members,

agreements, if any, to share existing

technology and data, the firm which is

responsible for the completion of the

consortium’s responsibilities under the

cooperative agreement and has the

authority to commit the consortium and

receive payments from NASA, employee

policy issues, etc.

(3) An outline of the Articles of

Collaboration should be required as part

of the proposal and evaluated during the

source selection process.

(e) Metric system of measurement.

The Metric Conversion Act, as amended

by the Omnibus Trade and

Competitiveness Act (15 U.S.C. 205)

declares that the metric system is the

preferred measurement system for U.S.

trade and commerce. NASA’s policy

with respect to the metric measurement

system is stated in NPD 8010.2, Use of

the Metric System of Measurement in

NASA Programs.

(f) Term of agreement. The provisions

set forth in § 1274.901 are generally

considered appropriate for agreements

not exceeding 3 years and/or a

Government cash contribution not

exceeding $20M. For cooperative

agreements expected to be longer than 3

years and/or involve a Government cash

contribution exceeding $20M,

consideration should be given to

provisions which place additional

restrictions on the recipient in terms of

validating performance and accounting

for funds expended.

§ 1274.203 Intellectual property.

(a) A cooperative agreement covers

the disposition of rights to intellectual

property between NASA and the

recipient. If the recipient is a

consortium or partnership, rights

flowing between multiple organizations

in a consortium must be negotiated

separately and formally documented,

preferably in the Articles of

Collaboration.

(b) Patent rights clauses are required

by statute and regulation. The clauses

exist for recipients of the agreement

whether they are:

(1) Other than small business or

nonprofit organizations (generally

referred to as large businesses) or

(2) Small businesses or nonprofit

organizations.

(c) There are five situations in which

inventions may arise under a

cooperative agreement: recipient

inventions, subcontractor inventions,

NASA inventions, NASA support

contractor inventions, and joint

inventions with recipient.

(d)(1) Recipient inventions.

(i) A recipient, if a large business, is

subject to Section 305 of the National

Aeronautics and Space Act of 1958 (42

U.S.C. 2457) relating to property rights

in inventions. The term ‘‘invention’’

includes any invention, discovery,

improvement, or innovation. Title to an

invention made under a cooperative

agreement by a large business recipient

initially vests with NASA. The recipient

may request a waiver under the NASA

Patent Waiver Regulations to obtain title

to inventions made under the

agreement. Such a request may be made

in advance of the agreement (or 30 days

thereafter) for all inventions made under

the agreement. Alternatively, requests

may be made on a case by case basis any

time an individual invention is made.

Such waivers are liberally and

expeditiously granted after review by

NASA’s Invention and Contribution

Board and approval by NASA’s General

Counsel. When a waiver is granted, any

inventions made in the performance of

work under the agreement are subject to

certain reporting, election and filing

requirements, a royalty-free license to

the Government, march-in rights, and

certain other reservations.

(ii) A recipient, if a small business or

nonprofit organization, may elect to

retain title to its inventions. The term

‘‘nonprofit organization’’ is defined in

35 U.S.C. 201(i) and includes

universities and other institutions of

higher education or an organization of

the type described in section 501(c)(3)

of the Internal Revenue Code (26

U.S.C.). The Government obtains an

irrevocable, nonexclusive, royalty-free

license.

(2) Subcontractor inventions.

(i) Large business. If a recipient enters

a subcontract (or similar arrangement)

with a large business organization for

experimental, developmental, research,

design or engineering work in support

of the agreement to be done in the

United States, its possessions, or Puerto

Rico, section 305 of the Space Act

applies. The clause applicable to large

business organizations is to be used

(suitably modified to identify the

parties) in any subcontract. The

subcontractor may request a waiver

under the NASA Patent Waiver

Regulations to obtain rights to

inventions made under the subcontract

just as a large business recipient can

(see paragraph (d)(1)(i) of this section).

It is strongly recommended that a

prospective large business subcontractor

contact the NASA installation Patent

Counsel or Intellectual Property Counsel

to assure that the right procedures are

followed. Just like the recipient, any

inventions made in the performance of

work under the agreement are subject to

certain reporting, election and filing

requirements, a royalty-free license to

the Government, march-in rights, and

certain other reservations.

(ii) Non-profit organization or small

business. In the event the recipient

enters into a subcontract (or similar

arrangement) with a domestic nonprofit

organization or a small business firm for

experimental, developmental, or

research work to be performed under

62938 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

the agreement, the requirements of 35

U.S.C. 200 et seq. regarding ‘‘Patent

Rights in Inventions Made With Federal

Assistance,’’ apply. The subcontractor

has the first option to elect title to any

inventions made in the performance of

work under the agreement, subject to

specific reporting, election and filing

requirements, a royalty-free license to

the Government, march-in rights, and

certain other reservations that are

specifically set forth.

(iii) Work outside the United States. If

the recipient subcontracts for work to be

done outside the United States, its

possessions or Puerto Rico, the NASA

installation Patent Counsel or

Intellectual Property Counsel should be

contacted for the proper patent rights

clause to use and the procedures to

follow.

(iv) Notwithstanding paragraphs

(d)(2)(i), (ii) and (iii), and in recognition

of the recipient’s substantial

contribution, the recipient is authorized,

subject to rights of NASA set forth

elsewhere in the agreement, to:

(A) Acquire by negotiation and

mutual agreement rights to a

subcontractor’s subject inventions as the

recipient may deem necessary, or

(B) If unable to reach agreement

pursuant to paragraph (d)(2)(iv)(A) of

this section, request that NASA invoke

exceptional circumstances as necessary

pursuant to 37 CFR 401.3(a)(2) if the

prospective subcontractor is a small

business firm or nonprofit organization,

or for all other organizations, request

that such rights for the recipient be

included as an additional reservation in

a waiver granted pursuant to 14 CFR

1245.1. The exercise of this exception

does not change the flow down of the

applicable patent rights clause to

subcontractors. Applicable laws and

regulations require that title to

inventions made under a subcontract

must initially reside in either the

subcontractor or NASA, not the

recipient. This exception does not

change that. The exception does

authorize the recipient to negotiate and

reach mutual agreement with the

subcontractor for the grant-back of

rights. Such grant-back could be an

option for an exclusive license or an

assignment, depending on the

circumstances.

(3) NASA inventions. NASA will use

reasonable efforts to report inventions

made by its employees as a consequence

of, or which bear a direct relation to, the

performance of specified NASA

activities under an agreement. Upon

timely request, NASA will use its best

efforts to grant recipient first option to

acquire either an exclusive or partiallyexclusive, revocable, royalty-bearing

license, on terms to be negotiated, for

any patent applications and patents

covering such inventions. This

exclusive or partially-exclusive license

to the recipient will be subject to the

retention of rights by or on behalf of the

Government for Government purposes.

(4) NASA support contractor

inventions. It is preferred that NASA

support contractors be excluded from

performing any of NASA’s

responsibilities under the agreement

since the rights obtained by a NASA

support contractor could work against

the rights needed by the recipient. In the

event NASA support contractors are

tasked to work under the agreement and

inventions are made by support

contractor employees, the support

contractor will normally retain title to

its employee inventions in accordance

with 35 U.S.C. 202, 14 CFR part 1245,

and Executive Order 12591. In the event

the recipient decides not to pursue right

to title in any such invention and NASA

obtains title to such inventions, upon

timely request, NASA will use its best

efforts to grant recipient first option to

acquire either an exclusive or partially

exclusive, revocable, royalty-bearing

license, upon terms to be negotiated, for

any patent applications and patents

covering such inventions. This

exclusive or partially-exclusive license

to the recipient will be subject to the

retention of rights by or on behalf of the

Government for Government purposes.

(5) Joint inventions. (i) NASA and the

recipient agree to use reasonable efforts

to identify and report to each other any

inventions made jointly between NASA

employees (or employees of NASA

support contractors) and employees of

recipient. For large businesses, the

Associate General Counsel (Intellectual

Property) may agree that the United

States will refrain, for a specified

period, from exercising its undivided

interest in a manner inconsistent with

recipient’s commercial interest. For

small business firms and nonprofit

organizations, the Associate General

Counsel (Intellectual Property) may

agree to assign or transfer whatever

rights NASA may acquire in a subject

invention from its employee to the

recipient as authorized by 35 U.S.C.

202(e). The grant officer negotiating the

agreement with small business firms

and nonprofit organizations can agree,

up front, that NASA will assign

whatever rights it may acquire in a

subject invention from its employee to

the small business firm or nonprofit

organization. Requests under this

paragraph shall be made through the

Center Patent Counsel.

(ii) NASA support contractors may be

joint inventors. If a NASA support

contractor employee is a joint inventor

with a NASA employee, the same

provisions apply as those for NASA

Support Contractor Inventions. The

NASA support contractor will retain or

obtain nonexclusive licenses to those

inventions in which NASA obtains title.

If a NASA support contractor employee

is a joint inventor with a recipient

employee, the NASA support contractor

and recipient will become joint owners

of those inventions in which they have

elected to retain title or requested and

have been granted waiver of title. Where

the NASA support contractor has not

elected to retain title or has not been

granted waiver of title, NASA will

jointly own the invention with the

recipient.

(e) Licenses to Recipient(s). (1) Any

exclusive or partially exclusive

commercial licenses are to be royaltybearing consistent with Governmentwide policy in licensing its inventions.

It also provides an opportunity for

royalty-sharing with the employeeinventor, consistent with Governmentwide policy under the Federal

Technology Transfer Act.

(2) Upon application in compliance

with 37 CFR part 404—Licensing of

Government Owned Inventions, all

recipients shall be granted a revocable,

nonexclusive, royalty-free license in

each patent application filed in any

country on a subject invention and any

resulting patent in which the

Government obtains title. Because

cooperative agreements are cost sharing

cooperative arrangements with a

purpose of benefiting the public by

improving the competitiveness of the

recipient and the Government receives

an irrevocable, nonexclusive, royaltyfree license in each recipient subject

invention, it is only equitable that the

recipient receive, at a minimum, a

revocable, nonexclusive, royalty-free

license in NASA inventions and NASA

contractor inventions where NASA has

acquired title.

(3) Once a recipient has exercised its

option to apply for an exclusive or

partially exclusive license, a notice,

identifying the invention and the

recipient, is published in the Federal

Register, providing the public

opportunity for filing written objections

for 60 days.

(f) Preference for United States

manufacture. Despite any other

provision, the recipient agrees that any

products embodying subject inventions

or produced through the use of subject

inventions shall be manufactured

substantially in the United States. The

intent of this provision is to support

manufacturing jobs in the United States

regardless of the status of the recipient

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62939

as a domestic or foreign controlled

company. However, in individual cases,

the requirement to manufacture

substantially in the United States, may

be waived by the Associate

Administrator for Procurement (Code

HS) upon a showing by the recipient

that under the circumstances domestic

manufacture is not commercially

feasible.

(g) Space Act Agreements. Invention

and patent rights in cooperative

agreements must comply with statutory

and regulatory provisions. Where

circumstances permit, a Space Act

agreement is available as an alternative

instrument which can be more flexible

in the area of invention and patent

rights.

(h) Data rights. Data rights provisions

can and should be tailored to best

achieve the needs and objectives of the

respective parties concerned.

(1) The data rights clause at

§ 1274.905 assumes a substantially

equal cost sharing relationship where

collaborative research, experimental,

developmental, engineering,

demonstration, or design activities are

to be carried out, such that it is likely

that ‘‘proprietary’’ information will be

developed and/or exchanged under the

agreement. If cost sharing is unequal or

no extensive research, experimental,

developmental, engineering,

demonstration, or design activities are

likely, a different set of clauses may be

appropriate.

(2) The primary question that must be

answered when developing data clauses

is what does each party need or intend

to do with the data developed under the

agreement. Accordingly, the data rights

clauses may be tailored to fit the

circumstances. Where conflicting goals

of the parties result in incompatible data

provisions, grant officers for the

Government must recognize that private

companies entering into cooperative

agreements bring resources to that

relationship and must be allowed to

reap an appropriate benefit for the

expenditure of those resources.

However, since serving a public purpose

is a major objective of a cooperative

agreement, care must be exercised to

ensure the recipient is not established as

a long term sole source supplier of an

item or service and is not in a position

to take unfair advantage of the results of

the cooperative agreement. Therefore, a

reasonable time period (depending on

the technology, two to five years after

production of the data) may be

established after which the data first

produced by the recipient in the

performance of the agreement will be

made public.

(3) Data can be generated from

different sources and can have various

restrictions placed on its dissemination.

Recipient data furnished to NASA can

exist prior to, or be produced outside of,

the agreement or be produced under the

agreement. NASA can also produce data

in carrying out its responsibilities under

the agreement. Each of these areas need

to be covered.

(4) For data, including software, first

produced by the recipient under the

agreement, the recipient may assert

copyright. Data exchanged with a notice

showing that the data is protected by

copyright must include appropriate

licenses in order for NASA to use the

data as needed.

(5) Recognizing that the dissemination

of the results of NASA’s activities is a

primary objective of a cooperative

agreement, the parties should

specifically delineate what results will

be published and under what

conditions. This should be set forth in

the clause of the cooperative agreement

entitled ‘‘Publication and Reports.’’ Any

such agreement on the publication of

results should be stated to take

precedence over any other clause in the

cooperative agreement.

(6) In accordance with section 303(b)

of the Space Act, any data first

produced by NASA under the

agreement which embodies trade secrets

or financial information that would be

privileged or confidential if it had been

obtained from a private participant, will

be marked with an appropriate legend

and maintained in confidence for an

agreed to period of up to five years (the

maximum allowed by law). This does

not apply to data other than that for

which there has been agreement

regarding publication or distribution.

The period of time during which data

first produced by NASA is maintained

in confidence should be consistent with

the period of time determined in

accordance with paragraph (h)(2) of this

section, before which data first

produced by the recipient will be made

public. Also, NASA itself may use the

marked data (under suitable protective

conditions) for agreed-to purposes.

§ 1274.204 Evaluation and selection.

(a) Evaluation factor. A single

technical evaluation factor is typically

used for CANs. That evaluation factor

should be one of the following:

Providing research and development or

technology transfer, enhancing U.S.

competitiveness, or developing a

capability among U.S. firms. Award to

foreign firms is not precluded if the

evaluation factor is satisfied. Subfactors

could include such things as fostering

U.S. leadership, potential to advance

technologies anticipated to enhance

U.S. competitiveness, timeliness of

proposed accomplishments, private

sector commitment to

commercialization, identification of

specific potential commercial markets,

appropriateness of business risk,

potential for broad impact on the U.S.

technology and knowledge base, level of

commitment (contribution of private

resources to the project),

appropriateness of team member

participation and relationships, (this

subfactor should include consideration

of the participation of an appropriate

mix of small business, small

disadvantaged business, and womenowned small business concerns, as well

as non-profits and educational

institutions, including historically black

colleges and universities and minority

institutions) appropriateness of

management planning, relevant

experience, qualifications and depth of

management and technical staff, quality

and appropriateness of resources

committed to the project, performance

bench marks, technical approach,

business approach/resource sharing,

past performance, the articles of

collaboration, etc.

(b) Technical evaluation. (1)

Competitive technical proposal

information shall be protected in

accordance with 48 CFR (FAR) 15.207,

Handling Proposals and Information.

Unsolicited proposals shall be protected

in accordance with 48 CFR (FAR)

15.608, Prohibitions, and 48 CFR (FAR)

15.609, Limited Use of Data.

(i) Selecting officials and grant/

contracting officers are responsible for

protecting sensitive information on the

award of a grant or cooperative

agreement and for determining who is

authorized to receive such information.

Sensitive information includes:

information contained in proposals;

information prepared for NASA’s

evaluation of proposals; the rankings of

proposals for an award; reports and

evaluations of source selection panels,

boards, or advisory councils; and other

information deemed sensitive by the

selecting official or by the grant/

contracting officer.

(ii) No sensitive information shall be

disclosed unless the selecting official or

the grant/contracting officer has

approved disclosure based upon an

unequivocal ‘‘need-to-know’’ and the

individual receiving the information has

signed a Non-Disclosure Certificate

(Exhibit E to subpart A of 14 CFR part

1260). All attendees at formal source

selection presentations and briefings

shall be required to sign an Attendance

Roster. The attendance rosters and

certificates shall be maintained in

62940 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

official files for a minimum of six

months after award.

(iii) The improper disclosure of

sensitive information could result in

criminal prosecution or an adverse

action.

(2) The technical officer will evaluate

proposals in accordance with the

criteria in the CAN. Proposals selected

for award will be supported by

documentation as described in

paragraph (c)(1) of this section. When

evaluation results in a proposal not

being selected, the proposer will be

notified in accordance with the CAN.

(3) The technical evaluation of

proposals may include peer reviews.

Since the business sense of a

cooperative agreement proposal is

critical to its success, NASA should

reserve the right to utilize appropriate

outside evaluators to assist in the

evaluation of such proposal elements as

the business base projections, the

market for proposed products, and/or

the impact of anticipated product price

reductions. The use of outside

evaluators shall be approved in

accordance with 48 CFR (NFS)

1815.207–70(b). A cover sheet with the

following legend shall be affixed to data

provided to outside evaluators:

Government Notice for Handling Proposals

This proposal shall be used and disclosed

for evaluation purposes only, and a copy of

this Government notice shall be applied to

any reproduction or abstract thereof. Any

authorized restrictive notices which the

submitter places on this proposal shall also

be strictly complied with.

(4) Evaluation of unsolicited

proposals must consider whether: the

subject of the proposal is available to

NASA from another source without

restriction; the proposal closely

resembles a pending competitive

acquisition; and the research proposed

demonstrates an innovative and unique

method, approach, or concept.

Organizations submitting unaccepted

proposals will be notified in writing.

(c) Documentation requirements. For

proposals selected for award, the

technical officer will prepare and

furnish to the grant officer the following

documentation:

(1) For a competitively selected

proposal, a signed selection statement

and technical evaluation based on the

evaluation criteria stated in the

solicitation.

(2) For an unsolicited proposal, a

justification for acceptance of an

unsolicited proposal (JAUP) prepared by

the cognizant technical office. The JAUP

shall be submitted for the approval of

the grant officer after review and

concurrence at a level above the

technical officer. The evaluator shall

consider the following factors, in

addition to any others appropriate for

the particular proposal:

(i) Unique and innovative methods,

approaches or concepts demonstrated

by the proposal.

(ii) Overall scientific or technical

merits of the proposal.

(iii) The offeror’s capabilities, related

experience, facilities, techniques, or

unique combinations of these which are

integral factors for achieving the

proposal objectives.

(iv) The qualifications, capabilities,

and experience of the proposed key

personnel who are critical in achieving

the proposal objectives.

(v) Current, open solicitations under

which the unsolicited proposal could be

evaluated.

(d) Cost evaluation. (1) The grant

officer and technical team will

determine whether the overall proposed

cost of the project is reasonable and that

the recipient’s contribution is valid,

verifiable, and available. Commitments

should be obtained and verified to the

extent practical from the offeror or

members of the consortia that the

proposed contributions can and will be

made as specified in the proposal or

statement of work.

(i) If the recipient’s verified share on

a cooperative agreement equals or

exceeds 50 percent of the total cost of

the agreement and the total value of the

agreement is less than $5 million, the

cost evaluation of the offeror’s proposal

should focus on the overall

reasonableness and timing of the

proposer’s contribution. Cost or pricing

data should not be required and

information other than cost or pricing

data (defined in 48 CFR (FAR) 15.403–

3) should not normally be required.

(ii) If the recipient’s share is projected

to be less than 50 percent or the total

value of the agreement is more than $5

million, a more in-depth analysis of the

proposed costs should be undertaken.

Only information other than cost or

pricing data should be required. An

analysis consistent with 48 CFR (FAR)

15.404–1 through 15.404–2 should be

performed.

(2) As part of the evaluation of the

cost proposal, the source of the

recipient’s contribution should be

determined. Each of the cost elements

contributed by the recipient and their

amounts should be identified. If the

contribution will consist at least in part

of IR&D, the extent to which the IR&D

may be recoverable from Government

awards should be established. This will

involve using the estimated Government

participation rate of the recipient’s

General and Administrative indirect

cost base for the period of the

cooperative agreement. An analysis

consistent with 48 CFR (FAR) 15.404–1

and 15.404–2 should be performed.

(e) Consortium. If the cooperative

agreement is to be awarded to a

consortium, a completed, formally

executed Articles of Collaboration is

required prior to award.

(f) Printing, binding, and duplicating.

Proposals for effort which involve

printing, binding, and duplicating in

excess of 25,000 pages are subject to the

regulations of the Congressional Joint

Committee on Printing. The technical

office will refer such proposals to the

Installation Central Printing

Management Officer (ICPMO) to ensure

compliance with NPD 1490.1. The grant

officer will be advised in writing of the

results of the ICPMO review.

§ 1274.205 Award procedures.

(a) General. Multiple year cooperative

agreements are encouraged, but

normally they should not extend

beyond two years.

(b) Award above proposed amount.

Awards of cooperative agreements in

response to competitive solicitations

will not result in providing more NASA

funds or resources than was anticipated

in the recipient’s proposal. If additional

funds or resources are deemed

necessary, they will be provided by the

recipient and the Government cost share

percentage will be adjusted downward.

(c) Changes to cooperative

agreements. Cost growth or in-scope

changes shall not increase the amount of

NASA’s contribution. Additional costs

which arise during the performance of

the cooperative agreement are the

responsibility of the recipient. Funding

for work required beyond the scope of

the cooperative agreement must be

sought through the submission of a

proposal which will be treated as an

unsolicited proposal.

(d) Bilateral award. All cooperative

agreements awarded under this part will

be awarded on a bilateral basis.

(e) Certifications and representations.

(1) Unless prohibited by statute or

codified regulation, recipients will be

encouraged to submit certifications and

representations required by statute,

executive order, or regulation on an

annual basis, if the recipients have

ongoing and continuing relationships

with the agency. Annual certifications

and representations shall be signed by

responsible officials with the authority

to ensure recipients’ compliance with

the pertinent requirements.

(2) Civil rights requirements—

nondiscrimination in certain Federallyfunded programs. Recipients must

furnish assurances of compliance with

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62941

civil rights statutes specified in 14 CFR

parts 1250 through 1252. Such

assurances are not required for each

cooperative agreement, if they have

previously been furnished and remain

current and accurate. Certifications to

NASA are normally made on NASA

Form 1206, which may be obtained from

the grant officer. Upon acceptance, the

grant officer will forward assurances to

the NASA Office of Equal Opportunity

Programs for recording and retention

purposes.

(3) NASA cooperative agreements are

subject to the provisions of 14 CFR Part

1265, Government-wide Debarment and

Suspension (Nonprocurement) and

Government-wide requirements for

Drug-Free Workplace (Grants), unless

excepted by 1265.110 and 1265.610.

(4) A Lobbying Certification in

accordance with 14 CFR part 1271 will

be obtained prior to award.

(f) Indemnification under Public Law

85–804 is not authorized for cooperative

agreements.

(g) Notice of significant action. The

standard operating procedures for the

Office of Public Affairs will be followed

when notifying Congress and releasing

information to the news media about

awards. Grant/Contracting Officers must

approve any exceptions to this policy.

§ 1274.206 Document format and

numbering.

(a) Grant officers are authorized to use

the format set forth in Exhibit B to

subpart A of 14 CFR part 1260, with

minimum modification, as the standard

cooperative agreement cover page for

the award of all cooperative agreements.

(b) Cooperative agreement numbering

prior to Integrated Financial

Management Project (IFMP)

implementation shall conform to 48

CFR (NFS) 1804.7102–3, except that a

NCC prefix will be used in lieu of the

NAS prefix.

(c) There will be a phase-in term for

Center implementation of the IFMP. For

Centers using IFMP Performance

Purchasing, the following cooperative

agreement numbering system shall be

used for new awards (awards made

prior to conversation to IFMP will retain

previously assigned numbers):

(1) Document Type for cooperative

agreements. Cooperative agreements

will use the prefix CO.

(2) Agency Identifier. The Agency

identifier NAS shall follow the

document number.

(3) Center Smart Codes. The Center

identifier shall follow the document

type:

Installation Smart

Code

Ames Research Center ..................... A

Dryden Flight Research Center ........ D

Glen Research Center ...................... C

Goddard Space Flight Center ........... G

Headquarters ..................................... H

Johnson Space Center ...................... J

Kennedy Space Center ..................... K

Langley Research Center ................. L

Marshall Space Flight Center ............ M

NASA Management Office-JPL ......... P

Stennis Space Center ....................... S

(4) Fiscal Year. The fiscal year shall

be represented as two digits.

(5) Procurement Code. Cooperative

Agreements will be identified using ‘‘A’’

as the procurement code.

(6) Serial Numbers. Installations shall

number cooperative agreements with

commercial firms serially by fiscal year,

within the same number series used for

grants and cooperative agreements with

non-profit organizations. The serial

number shall be six digits commencing

with ‘‘000001’’ and continuing in

succession.

§ 1274.207 Distribution of cooperative

agreements.

Copies of cooperative agreements and

modifications will be provided to:

payment office, technical officer,

administrative grant officer when

delegation has been made, NASA Center

for Aerospace Information (CASI), Attn:

Document Processing Section, 7121

Standard Drive, Hanover, MD 21076,

and any other appropriate recipient.

Copies of the statement of work,

contained in the recipient’s proposal

and accepted by NASA, will be

provided to the administrative grant

officer and CASI. The cooperative

agreement file will contain a record of

the addresses for distributing

agreements and supplements.

Subpart C—Administration

§ 1274.301 Delegation of administration.

Normally, cooperative agreements

will be administered by the awarding

activity. NASA Form 1678, NASA

Technical Officer Delegation for

Cooperative Agreements with

Commercial Firms, will be used to

delegate responsibilities to the NASA

Technical Officer.

§ 1274.302 Transfers, novations, and

change of name agreements.

(a) Transfer of cooperative

agreements. Novation is the only means

by which a cooperative agreement may

be transferred from one recipient to

another.

(b) Novation and change of name. All

novation agreements and change of

name agreements of the recipient, prior

to execution, shall be reviewed by

NASA legal counsel for legal sufficiency

prior to approval.

Subpart D—Government Property

§ 1274.401 Government property.

The accomplishment of a cooperative

agreement may require the purchase of

equipment for a wide range of purposes.

If this equipment is purchased with

Government funds, i.e., as part of the

Government contribution to the

cooperative agreement, it becomes

Government property and must be

disposed of in accordance with 48 CFR

(FAR) part 45 at the conclusion of the

cooperative agreement. In some cases,

this may meet the needs of the parties.

If, however, the recipient may need the

equipment to continue commercial

efforts following the cooperative

agreement, it should be purchased by

the recipient and included as a non-cash

contribution of the recipient. In this

way, it is not procured, not even in part,

with Government funds and the

Government acquires no ownership

interest. Procurement by the recipient

may be before or during the

performance of the cooperative

agreement.

Subpart E—Procurement Standards

§ 1274.501 Subcontracts.

Recipients (individual firms or

consortia) are not authorized to issue

grants or cooperative agreements to

subrecipients. All contracts, including

small purchases, awarded by recipients

and their contractors shall contain the

procurement provisions of appendix A

to this part, as applicable and may be

subject to approval requirements cited

in § 1274.925.

Subpart F—Reports and Records

§ 1274.601 Retention and access

requirements for records.

(a) This subpart sets forth

requirements for record retention and

access to records for awards to

recipients.

(b) Financial records, supporting

documents, statistical records, and all

other records pertinent to an award

shall be retained for a period of three

years from the date of submission of the

final invoice. The only exceptions are

the following:

(1) If any litigation, claim, or audit is

started before the expiration of the 3-

year period, the records shall be

retained until all litigation, claims or

audit findings involving the records

have been resolved and final action

taken.

62942 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

(2) Records for real property and

equipment acquired with Federal funds

shall be retained for 3 years after final

disposition.

(3) When records are transferred to or

maintained by NASA, the 3-year

retention requirement is not applicable

to the recipient.

(4) Indirect cost rate proposals, cost

allocations plans, etc. as specified in

paragraph (g) of this section.

(c) Copies of original records may be

substituted for the original records if

authorized by NASA.

(d) NASA shall request transfer of

certain records to its custody from

recipients when it determines that the

records possess long term retention

value. However, in order to avoid

duplicate record keeping, NASA may

make arrangements for recipients to

retain any records that are continuously

needed for joint use.

(e) NASA, the Inspector General,

Comptroller General of the United

States, or any of their duly authorized

representatives, have the right of timely

and unrestricted access to any books,

documents, papers, or other records of

recipients that are pertinent to the

awards, in order to make audits,

examinations, excerpts, transcripts and

copies of such documents. This right

also includes timely and reasonable

access to a recipient’s personnel for the

purpose of interview and discussion

related to such documents. The rights of

access in this paragraph are not limited

to the required retention period, but

shall last as long as records are retained.

(f) Unless required by statute, NASA

shall not place restrictions on recipients

that limit public access to the records of

recipients that are pertinent to an

award, except when NASA can

demonstrate that such records shall be

kept confidential and would have been

exempted from disclosure pursuant to

the Freedom of Information Act (5

U.S.C. 552) if the records had belonged

to NASA.

(g) This paragraph applies to the

following types of documents, and their

supporting records: indirect cost rate

computations or proposals, cost

allocation plans, and any similar

accounting computations of the rate at

which a particular group of costs is

chargeable (such as computer usage

chargeback rates or composite fringe

benefit rates).

(1) If submitted for negotiation. If the

recipient submits to NASA or the

subrecipient submits to the recipient the

proposal, plan, or other computation to

form the basis for negotiation of the rate,

then the 3-year retention period for its

supporting records starts on the date of

such submission.

(2) If not submitted for negotiation. If

the recipient is not required to submit

to NASA or the subrecipient is not

required to submit to the recipient the

proposal, plan, or other computation for

negotiation purposes, then the 3-year

retention period for the proposal, plan,

or other computation and its supporting

records starts at the end of the fiscal

year (or other accounting period)

covered by the proposal, plan, or other

computation.

Subpart G—Suspension and

Termination

§ 1274.701 Suspension or termination.

A cooperative agreement provides

both NASA and the recipient the ability

to terminate the agreement if it is in

their best interests to do so. For

example, NASA may terminate the

agreement if the recipient is not making

anticipated technical progress, if the

recipient materially fails to comply with

the terms of the agreement, if the

recipient materially changes the

objective of the agreement, or if

appropriated funds are not available to

support the program. Similarly, the

recipient may terminate the agreement

if, for example, technical progress is not

being made, if the firms are shifting

their technical emphasis, or if other

technological advances have made the

effort obsolete. NASA or the recipient

may also suspend the cooperative

agreement for a short period of time if

an assessment needs to be made as to

whether the agreement should be

terminated.

Subpart H—After-the-Award

Requirements

§ 1274.801 Purpose.

Sections 1274.802 and 1274.803

contain closeout procedures and other

procedures for subsequent

disallowances and adjustments.

§ 1274.802 Closeout procedures.

(a) Recipients shall submit, within 90

calendar days after the date of

completion of the cooperative

agreement, all financial, performance,

and other reports as required by the

terms and conditions of the award.

Extensions may be approved when

requested by the recipient.

(b) The recipient shall account for any

real and personal property acquired

with Federal funds or received from the

Federal Government in accordance with

subpart D of this part.

§ 1274.803 Subsequent adjustments and

continuing responsibilities.

The closeout of an award does not

affect any of the following:

(a) Audit requirements in § 1274.932.

(b) Property management

requirements in subpart D of this part.

(c) Records retention as required in

§ 1274.601.

Subpart I—Provisions and Special

Conditions

§ 1274.901 Other provisions and special

conditions.

The provisions set forth in this

subpart are to be incorporated in and

made a part of all cooperative

agreements. The provisions at

§§ 1274.902 through 1274.909 and the

provision at § 1274.933 are to be

incorporated in full text substantially as

stated in this subpart. The provisions at

§§ 1274.910 through 1274.932 and

§ 1274.934 will be incorporated by

reference in an enclosure to each

cooperative agreement. For inclusion of

provisions in subcontracts, see subpart

E, Procurement Standards, of this Part.

§ 1274.902 Purpose.

Purpose

October 2000

The purpose of this cooperative agreement

is to conduct a shared resource project that

will lead to llll. This cooperative

agreement will advance the technology

developments and research which have been

performed on llll. The specific

objective is to llll. This work will

culminate in llll.

[End of provision]

§ 1274.903 Responsibilities.

Responsibilities

October 2000

(a) This cooperative agreement will include

substantial NASA participation during

performance of the effort. NASA and the

Recipient agree to the following

Responsibilities, a statement of cooperative

interactions to occur during the performance

of this effort. NASA and the Recipient shall

exert all reasonable efforts to fulfill the

responsibilities stated below.

(b) NASA Responsibilities. The following

NASA responsibilities are hereby set forth

with anticipated start and ending dates, as

appropriate:

Responsibility Start End

(c) Recipient Responsibilities. The

Recipient shall be responsible for particular

aspects of project performance as set forth in

the technical proposal dated llll,

attached hereto (or Statement of Work dated

llll, attached hereto.). The following

responsibilities are hereby set forth with

anticipated start and ending dates, as

appropriate:

Responsibility Start End

(d) Since NASA contractors may obtain

certain intellectual property rights arising

from work for NASA in support of this

agreement, NASA will inform Recipient

whenever NASA intends to use NASA

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62943

contractors to perform technical engineering

services in support of this agreement.

[End of provision]

§ 1274.904 Resource sharing

requirements.

Resource Sharing Requirements

October 2000

(a) NASA and the Recipient will share in

providing the resources necessary to perform

the agreement. NASA funding and non-cash

contributions (personnel, equipment,

facilities, etc.) and the dollar value of the

Recipient’s cash and/or non-cash

contribution will be on a ll (NASA)– ll

(Recipient) basis. Criteria and procedures for

the allowability and allocability of cash and

non-cash contributions shall be governed by

Section 23, ‘‘Cost Sharing or Matching,’’ of

OMB Circular A–110. The ‘‘applicable

federal cost principles’’ cited in OMB

Circular A–110 shall be determined in

accordance with 1274.919.

(b) The Recipient’s share shall not be

charged to the Government under this

agreement or under any other contract, grant,

or cooperative agreement, except to the

extent that the Recipient’s contribution may

be allowable IR&D costs pursuant to 48 CFR

(NFS) 1831.205–18.

[End of provision]

§ 1274.905 Rights in data.

(As noted in § 1274.203(h)(1), the following

provision assumes a substantially equal cost

sharing relationship where collaborative

research, experimental, developmental,

engineering, demonstration, or design

activities are to be carried out, such that it

is likely that ‘‘proprietary’’ information will

be developed and/or exchanged under the

agreement. If cost sharing is unequal or no

extensive research, experimental,

developmental, engineering, demonstration,

or design activities are likely, a different set

of provisions may be appropriate.

The grant officer is expected to complete

and/or select the appropriate bracketed

language under the provision for those

paragraphs dealing with data first produced

under the cooperative agreement. In addition,

the grant officer may, in consultation with

the Center’s Patent or Intellectual Property

Counsel, tailor the provision to fit the

particular circumstances of the program and/

or the recipient’s need to protect specific

proprietary information.)

Rights in Data

October 2000

(a) Definitions.

‘‘Data,’’ means recorded information,

regardless of form, the media on which it

may be recorded, or the method of recording.

The term includes, but is not limited to, data

of a scientific or technical nature, computer

software and documentation thereof, and

data comprising commercial and financial

information.

(b) Data Categories.

(1) General: Data exchanged between

NASA and Recipient under this cooperative

agreement will be exchanged without

restriction as to its disclosure, use or

duplication except as otherwise provided

below in this provision.

(2) Background Data: In the event it is

necessary for Recipient to furnish NASA

with Data which existed prior to, or

produced outside of, this cooperative

agreement, and such Data embodies trade

secrets or comprises commercial or financial

information which is privileged or

confidential, and such Data is so identified

with a suitable notice or legend, the Data will

be maintained in confidence and disclosed

and used by NASA and its contractors (under

suitable protective conditions) only for the

purpose of carrying out NASA’s

responsibilities under this cooperative

agreement. Upon completion of activities

under this agreement, such Data will be

disposed of as requested by Recipient.

(3) Data first produced by Recipient: In the

event Data first produced by Recipient in

carrying out Recipient’s responsibilities

under this cooperative agreement is

furnished to NASA, and Recipient considers

such Data to embody trade secrets or to

comprise commercial or financial

information which is privileged or

confidential, and such Data is so identified

with a suitable notice or legend, the Data will

be maintained in confidence for a period of

(insert ‘‘two’’ to ‘‘five’’) years after

development of the data and be disclosed

and used by (’’NASA’’ or ‘‘the Government,’’

as appropriate) and its contractors (under

suitable protective conditions) only for

(insert appropriate purpose; for example:

experimental; evaluation; research;

development, etc.) by or on behalf of

(’’NASA’’ or ‘‘the Government’’ as

appropriate) during that period. In order that

(’’NASA’’ or the ‘‘Government’’, as

appropriate) and its contractors may exercise

the right to use such Data for the purposes

designated above, NASA, upon request to the

Recipient, shall have the right to review and

request delivery of Data first produced by

Recipient. Delivery shall be made within a

time period specified by NASA.

(4) Data first produced by NASA: As to

Data first produced by NASA in carrying out

NASA’s responsibilities under this

cooperative agreement and which Data

would embody trade secrets or would

comprise commercial or financial

information that is privileged or confidential

if it had been obtained from the Recipient,

will be marked with an appropriate legend

and maintained in confidence for an agreed

to period of up to ( ) years (INSERT A

PERIOD UP TO 5 YEARS) after development

of the information, with the express

understanding that during the aforesaid

period such Data may be disclosed and used

(under suitable protective conditions) by or

on behalf of the Government for Government

purposes only, and thereafter for any purpose

whatsoever without restriction on disclosure

and use. Recipient agrees not to disclose such

Data to any third party without NASA’s

written approval until the aforementioned

restricted period expires.

(5) Copyright. 

(i) In the event Data is exchanged with a

notice indicating the Data is protected under

copyright as a published copyrighted work,

or are deposited for registration as a

published work in the U.S. Copyright Office,

the following paid-up licenses shall apply:

(A) If it is indicated on the Data that the

Data existed prior to, or was produced

outside of, this agreement, the receiving party

and others acting on its behalf, may

reproduce, distribute, and prepare derivative

works for the purpose of carrying out the

receiving party’s responsibilities under this

cooperative agreement; and

(B) If the furnished Data does not contain

the indication of paragraph (b)(5)(i)(A) of this

section, it will be assumed that the Data was

first produced under this agreement, and the

receiving party and others acting on its

behalf, shall be granted a paid up,

nonexclusive, irrevocable, world-wide

license for all such Data to reproduce,

distribute copies to the public, prepare

derivative works, distribute copies to the

public, and perform publicly and display

publicly, by or on behalf of the receiving

party. For Data that is computer software, the

right to distribute shall be limited to

potential users in the United States.

(ii) When claim is made to copyright, the

Recipient shall affix the applicable copyright

notice of 17 U.S.C. 401 or 402 and

acknowledgment of Government sponsorship

to the data when and if the data are delivered

to the Government.

(6) Oral and visual information. If

information which the Recipient considers to

embody trade secrets or to comprise

commercial or financial information which is

privileged or confidential is disclosed orally

or visually to NASA, such information must

be reduced to tangible, recorded form (i.e.,

converted into Data as defined herein),

identified and marked with a suitable notice

or legend, and furnished to NASA within 10

days after such oral or visual disclosure, or

NASA shall have no duty to limit or restrict,

and shall not incur any liability for, any

disclosure and use of such information.

(7) Disclaimer of liability. Notwithstanding

the above, NASA shall not be restricted in,

nor incur any liability for, the disclosure and

use of:

(i) Data not identified with a suitable

notice or legend as set in paragraph (b)(2) of

this section; nor

(ii) Information contained in any Data for

which disclosure and use is restricted under

paragraphs (b)(2) or (3) of this section, if such

information is or becomes generally known

without breach of the above, is known to or

is generated by NASA independently of

carrying out responsibilities under this

agreement, is rightfully received from a third

party without restriction, or is included in

data which Participant has, or is required to

furnish to the U.S. Government without

restriction on disclosure and use.

(c) Marking of data. Any Data delivered

under this cooperative agreement, by NASA

or the Recipient, shall be marked with a

suitable notice or legend indicating the data

was generated under this cooperative

agreement.

(d) Lower tier agreements. The Recipient

shall include this provision, suitably

modified to identify the parties, in all

subcontracts or lower tier agreements,

regardless of tier, for experimental,

developmental, or research work.

62944 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

[End of provision]

§ 1274.906 Designation of new technology

representative and patent representative.

Designation of New Technology

Representative and Patent Representative

October 2000

(a) For purposes of administration of the

clause of this cooperative agreement entitled

‘‘PATENT RIGHTS—RETENTION BY THE

CONTRACTOR (LARGE BUSINESS)’’ or

‘‘PATENT RIGHTS—RETENTION BY THE

CONTRACTOR (SMALL BUSINESS)’’ the

following named representatives are hereby

designated by the Grant Officer to administer

such clause:

Title Office Code Address

lllllllllllllllllllll

New Technology

Representative

Patent

Representative

(b) Reports of reportable items, and

disclosure of subject inventions, interim

reports, final reports, utilization reports, and

other reports required by the clause, as well

as any correspondence with respect to such

matters, should be directed to the New

Technology Representative unless

transmitted in response to correspondence or

request from the Patent Representative.

Inquiries or requests regarding disposition of

rights, election of rights, or related matters

should be directed to the Patent

Representative. This clause shall be included

in any subcontract hereunder requiring

‘‘PATENT RIGHTS—RETENTION BY THE

CONTRACTOR (LARGE BUSINESS)’’ clause

or ‘‘PATENT RIGHTS—RETENTION BY THE

CONTRACTOR (SMALL BUSINESS)’’ clause,

unless otherwise authorized or directed by

the Grant Officer. The respective

responsibilities and authorities of the abovenamed representatives are set forth in 48 CFR

(NFS) 1827.305–70.

[End of provision]

§ 1274.907 Disputes.

Disputes

October 2000

(a) In the event that a disagreement arises,

representatives of the parties shall enter into

discussions in good faith and in a timely and

cooperative manner to seek resolution. If

these discussions do not result in a

satisfactory solution, the aggrieved party may

seek a decision from the Dispute Resolution

Official under paragraph (b) of this provision.

This request must be presented no more than

(3) three months after the events giving rise

to the disagreement have occurred.

(b) The aggrieved party may submit a

written request for a decision to

thelllll[Suggest this be the Center

Ombudsman], who is designated as the

Dispute Resolution Official. The written

request shall include a statement of the

relevant facts, a discussion of the unresolved

issues, and a specification of the clarification,

relief, or remedy sought. A copy of this

written request and all accompanying

materials must be provided to the other party

at the same time. The other party shall

submit a written position on the matters in

dispute within thirty (30) calendar days after

receiving this notification that a decision has

been requested. The Dispute Resolution

Official shall conduct a review of the matters

in dispute and render a decision in writing

within thirty (30) calendar days of receipt of

such written position.

[End of provision]

§ 1274.908 Milestone payments.

Milestone Payments

October 2000

(a) By submission of the first invoice, the

Recipient is certifying that it has an

established accounting system which

complies with generally accepted accounting

principles, with the requirements of this

agreement, and that appropriate

arrangements have been made for receiving,

distributing, and accounting for Federal

funds received under this agreement.

(b) Payments will be made upon the

following milestones: (The schedule for

payments may be based upon the Recipient’s

completion of specific tasks, submission of

specified reports, or whatever is appropriate.)

Date Payment Milestone Amount

(c) Upon submission by the Recipient of

invoices in accordance with the provisions of

the agreement and upon certification by

NASA of completion of the payable

milestone, the grant officer shall authorize

payment.

(d) A payment milestone may be

successfully completed in advance of the

date appearing in paragraph (b) of this

section. However, payment shall not be made

prior to that date without the written consent

of the Grant Officer.

(e) The Recipient is not entitled to partial

payment for partial completion of a payment

milestone.

(f) Unless approved by the Grant Officer,

all preceding payment milestones must be

completed before payment can be made for

the next payment milestone.

(g) Invoices hereunder shall be submitted

in the original and five copies to the Grant

Officer for certification.

[End of provision]

§ 1274.909 Term of this agreement.

Term of This Agreement

October 2000

The agreement commences on the effective

date indicated on the attached cover sheet

and continues until the expiration date

indicated on the attached cover sheet unless

terminated by either party. If all resources are

expended prior to the expiration date of the

agreement, the parties have no obligation to

continue performance and may elect to cease

at that point. The parties may extend the

expiration date if additional time is required

to complete the milestones at no increase in

Government resources. Provisions of this

agreement, which, by their express terms or

by necessary implication, apply for periods

of time other than that specified as the

agreement term, shall be given effect,

notwithstanding expiration of the term of the

agreement.

[End of provision]

§ 1274.910 Authority.

Authority

October 2000

This is a cooperative agreement as defined

in 31 U.S.C. 6305 (the Chiles Act) and is

entered into pursuant to the authority of 42

U.S.C. 2451, et seq. (the Space Act).

[End of provision]

§ 1274.911 Patent rights.

Patent Rights (July 2000)

(a) Definitions.

(1) ‘‘Administrator’’ means the

Administrator or Deputy Administrator of

NASA.

(2) ‘‘Invention’’ means any invention or

discovery which is or may be patentable or

otherwise protectable under Title 35 of the

United States Code.

(3) ‘‘Made’’ when used in relation to any

invention means the conception or first

actual reduction to practice such invention.

(4) ‘‘Nonprofit organization’’ means a

domestic 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 domestic nonprofit

scientific or educational organization

qualified under a State nonprofit

organization statute.

(5) ‘‘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 being utilized and that its

benefits are, to the extent permitted by law

or Government regulations, available to the

public on reasonable terms.

(6) ‘‘Recipient’’ means:

(i) The signatory Recipient party or parties

or;

(ii) The Consortium, where a Consortium

has been formed for carrying out Recipient

responsibilities under this agreement.

(7) ‘‘Small Business Firm’’ means a

domestic small business concern as defined

at 15 U.S.C. 632 and implementing

regulations (see 13 CFR 121.401 et seq.) of

the Administrator of the Small Business

Administration.

(8) ‘‘Subject Invention’’ means any

invention of a Recipient and/or Government

employee conceived or first actually reduced

to practice in the performance of work under

this Agreement.

(b) Allocation of Principal Rights.

(1) Recipient Inventions. For other than

Small Business Firm or Nonprofit

organization Recipients, the ‘‘PATENT

RIGHTS—RETENTION BY RECIPIENT

(LARGE BUSINESS)’’ provision applies. For

Small Business Firm and Nonprofit

organization Recipients, the ‘‘PATENT

RIGHTS—RETENTION BY RECIPIENT

(SMALL BUSINESS)’’ provision applies.

(2) NASA Inventions. NASA will use

reasonable efforts to report inventions made

by NASA employees as a consequence of, or

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62945

which bear a direct relation to, the

performance of specified NASA activities

under this cooperative agreement and, upon

timely request, NASA will use its best efforts

to grant the Recipient or designated

Consortium Member (if applicable) the first

option to acquire either an exclusive or

partially exclusive, revocable, royalty-bearing

license, on terms to be subsequently

negotiated, for any patent applications and

patents covering such inventions, and subject

to the license reserved in paragraph (b)(5)(i)

of this section. Upon application in

compliance with 37 CFR part 404—Licensing

of Government Owned Inventions, the

Recipient or each Consortium Member (if

applicable), shall be granted a revocable,

nonexclusive, royalty-free license in each

patent application filed in any country on a

subject invention and any resulting patent in

which the Government acquires title. Each

nonexclusive license may extend to

subsidiaries and affiliates, if any, within the

corporate structure of the licensee and

includes the right to grant sublicenses of the

same scope to the extent the licensee was

legally obligated to do so at the time the

cooperative agreement was signed.

(3) NASA Contractor Inventions. In the

event NASA contractors are tasked to

perform work in support of specified NASA

activities under this cooperative agreement

and inventions are made by contractor

employees, the Recipient will normally

retain title to its employee inventions in

accordance with 35 U.S.C. 202, 14 CFR part

1245, and Executive Order 12591. In the

event the Recipient decides not to pursue

right to title in any such invention and NASA

obtains title to such inventions, NASA will

use reasonable efforts to report such

inventions and, upon timely request, NASA

will use its best efforts to grant the Recipient

or designated Consortium Member (if

applicable) the first option to acquire either

an exclusive or partially exclusive, revocable,

royalty-bearing license, upon terms to be

subsequently negotiated, for any patent

applications and patents covering such

inventions, and subject to the license

reserved in paragraph (b)(5)(ii) of this

section. Upon application in compliance

with 37 CFR part 404 — Licensing of

Government Owned Inventions, the

Recipient or each Consortium Member (if

applicable), shall be granted a revocable,

nonexclusive, royalty-free license in each

patent application filed in any country on a

subject invention and any resulting patent in

which the Government acquires title. Each

nonexclusive license may extend to

subsidiaries and affiliates, if any, within the

corporate structure of the licensee and

includes the right to grant sublicenses of the

same scope to the extent the licensee was

legally obligated to do so at the time the

cooperative agreement was signed.

(4) Joint NASA and Recipient Inventions.

NASA and Recipient agree to use reasonable

efforts to identify and report to each other

any inventions made jointly between NASA

employees (or employees of NASA

Contractors) and employees of Recipient.

(i) For other than small business firms and

nonprofit organizations the Administrator

may agree that the United States will refrain

from exercising its undivided interest in a

manner inconsistent with Recipient’s

commercial interest and to cooperate with

Recipient in obtaining patent protection on

its undivided interest on any waived

inventions subject, however, to the condition

that Recipient makes its best efforts to bring

the invention to the point of practical

application at the earliest practicable time. In

the event that the Administrator determines

that such efforts are not undertaken, the

Administrator may void NASA’s agreement

to refrain from exercising its undivided

interest and grant licenses for the practice of

the invention so as to further its

development. In the event that the

Administrator decides to void NASA’s

agreement to refrain from exercising its

undivided interest and grant licenses for this

reason, notice shall be given to the

Inventions and Contributions Board as to

why such action should not be taken. Either

alternative will be subject to the applicable

license or licenses reserved in paragraph

(b)(5) of this section.

(ii) For small business firms and nonprofit

organization, NASA may assign or transfer

whatever rights it may acquire in a subject

invention from its employee to the Recipient

as authorized by 35 U.S.C. 202(e).

(5) Minimum rights reserved by the

Government. Any license or assignment

granted Recipient pursuant to paragraphs

(b)(2), (3), or (4) of this section will be subject

to the reservation of the following licenses:

(i) As to inventions made solely or jointly

by NASA employees, the irrevocable, royaltyfree right of the Government of the United

States to practice and have practiced the

invention by or on behalf of the United

States; and

(ii) As to inventions made solely by, or

jointly with, employees of NASA

Contractors, the rights in the Government of

the United States as set forth in paragraph

(b)(5)(i) of this section, as well as the

revocable, nonexclusive, royalty-free license

in the contractor as set forth in 14 CFR

1245.108.

(6) Preference for United States

manufacture. The Recipient agrees that any

products embodying subject inventions or

produced through the use of subject

inventions shall be manufactured

substantially in the United States. However,

in individual cases, the requirement to

manufacture substantially in the United

States may be waived by the Associate

Administrator for Procurement (Code HS)

with the concurrence of the Associate

General Counsel for Intellectual Property

upon a showing by the Recipient that under

the circumstances domestic manufacture is

not commercially feasible.

(7) Work performed by the Recipient under

this cooperative agreement is considered

undertaken to carry out a public purpose of

support and/or stimulation rather than for

acquiring property or services for the direct

benefit or use of the Government.

Accordingly, such work by the Recipient is

not considered ‘‘by or for the United States’’

and the Government assumes no liability for

infringement by the Recipient under 28

U.S.C. 1498.

[End of provision]

§ 1274.912 Patent rights—retention by the

Recipient (large business).

Patent Rights—Retention by the Recipient

(Large Business)

October 2000

(a) Definitions.

(1) Administrator, as used in this clause,

means the Administrator of the National

Aeronautics and Space Administration

(NASA) or duly authorized representative.

(2) Invention, as used in this clause, means

any invention or discovery which is or may

be patentable or otherwise protectable under

Title 35 of the United States Code.

(3) Made, as used in relation to any

invention, means the conception or first

actual reduction to practice such invention.

(4) Nonprofit organization, as used in this

clause, means a domestic 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

domestic nonprofit scientific or educational

organization qualified under a State

nonprofit organization statute.

(5) Practical application, as used in this

clause, 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

case of a machine or system; and, in each

case, under such conditions as to establish

that the invention is being utilized and that

its benefits are, to the extent permitted by

law or Government regulations, available to

the public on reasonable terms.

(6) Reportable item, as used in this clause,

means any invention, discovery,

improvement, or innovation of the Recipient,

whether or not the same is or may be

patentable or otherwise protectable under

Title 35 of the United States Code, conceived

or first actually reduced to practice in the

performance of any work under this contract

or in the performance of any work that is

reimbursable under any clause in this

contract providing for reimbursement of costs

incurred prior to the effective date of this

contract.

(7) ‘‘Small business firm,’’ as used in this

clause, means a domestic small business

concern as defined at 15 U.S.C. 632 and

implementing regulations (see 13 CFR

121.401 et seq.) of the Administrator of the

Small Business Administration.

(8) ‘‘Subject invention,’’ as used in this

clause, means any reportable item which is

or may be patentable or otherwise protectable

under Title 35 of the United States Code, or

any novel variety of plant that is or may be

protectable under the Plant Variety

Protection Act (7 U.S.C. 2321, et seq.).

(b) Allocation of principal rights.

(1) Presumption of title.

(i) Any reportable item that the

Administrator considers to be a subject

invention shall be presumed to have been

made in the manner specified in paragraph

(1) or (2) of section 305(a) of the National

Aeronautics and Space Act of 1958 (42 U.S.C.

2457(a)) (hereinafter called ‘‘the Act’’), and

the above presumption shall be conclusive

unless at the time of reporting the reportable

62946 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

item the Recipient submits to the Grant

Officer a written statement, containing

supporting details, demonstrating that the

reportable item was not made in the manner

specified in paragraph (1) or (2) of section

305(a) of the Act.

(ii) Regardless of whether title to a given

subject invention would otherwise be subject

to an advance waiver or is the subject of a

petition for waiver, the Recipient may

nevertheless file the statement described in

paragraph (b)(1)(i) of this section. The

Administrator will review the information

furnished by the Recipient in any such

statement and any other available

information relating to the circumstances

surrounding the making of the subject

invention and will notify the Recipient

whether the Administrator has determined

that the subject invention was made in the

manner specified in paragraph (1) or (2) of

Section 305(a) of the Act.

(2) Property rights in subject inventions.

Each subject invention for which the

presumption of paragraph (b)(1)(i) of this

section is conclusive or for which there has

been a determination that it was made in the

manner specified in paragraph (1) or (2) of

section 305(a) of the Act shall be the

exclusive property of the United States as

represented by NASA unless the

Administrator waives all or any part of the

rights of the United States, as provided in

paragraph (b)(3) of this section.

(3) Waiver of rights.

(i) Section 305(f) of the Act provides for the

promulgation of regulations by which the

Administrator may waive the rights of the

United States with respect to any invention

or class of inventions made or that may be

made under conditions specified in

paragraph (1) or (2) of section 305(a) of the

Act. The promulgated NASA Patent Waiver

Regulations, 14 CFR part 1245, subpart 1,

have adopted the Presidential memorandum

on Government Patent Policy of February 18,

1983, as a guide in acting on petitions

(requests) for such waiver of rights.

(ii) As provided in 14 CFR part 1245,

subpart 1, Recipients may petition, either

prior to execution of the Agreement or within

30 days after execution of the Agreement, for

advance waiver of rights to any or all of the

inventions that may be made under an

Agreement. If such a petition is not

submitted, or if after submission it is denied,

the Recipient (or an employee inventor of the

Recipient may petition for waiver of rights to

an identified subject invention within eight

months of first disclosure of invention in

accordance with paragraph (e)(2) of this

section or within such longer period as may

be authorized in accordance with 14 CFR

1245.105. Further procedures are provided in

the REQUESTS FOR WAIVER OF RIGHTS—

LARGE BUSINESS provision.

(c) Minimum rights reserved by the

Government.

(1) With respect to each Recipient subject

invention for which a waiver of rights is

applicable in accordance with 14 CFR part

1245, subpart 1, the Government reserves —

(i) An irrevocable, royalty-free license for

the practice of such invention throughout the

world by or on behalf of the United States or

any foreign government in accordance with

any treaty or agreement with the United

States; and

(ii) Such other rights as stated in 14 CFR

1245.107.

(2) Nothing contained in this paragraph

shall be considered to grant to the

Government any rights with respect to any

invention other than a subject invention.

(d) Minimum rights to the Recipient.

(1) The Recipient is hereby granted a

revocable, nonexclusive, royalty-free license

in each patent application filed in any

country on a Recipient subject invention and

any resulting patent in which the

Government acquires title, unless the

Recipient fails to disclose the subject

invention within the times specified in

paragraph (e)(2) of this section. The

Recipient’s license extends to its domestic

subsidiaries and affiliates, if any, within the

corporate structure of which the Recipient is

a party and includes the right to grant

sublicenses of the same scope to the extent

the Recipient was legally obligated to do so

at the time the contract was awarded. The

license is transferable only with the approval

of the Administrator except when transferred

to the successor of that part of the Recipient’s

business to which the invention pertains.

(2) The Recipient’s domestic license may

be revoked or modified by the Administrator

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 14 CFR part 1245, subpart

2, Licensing of NASA Inventions. This

license will not be revoked in that field of

use or the geographical areas in which the

Recipient 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 the

Administrator to the extent the Recipient, 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, the Recipient will be provided a

written notice of the Administrator’s

intention to revoke or modify the license, and

the Recipient will be allowed 30 days (or

such other time as may be authorized by the

Administrator for good cause shown by the

Recipient) after the notice to show cause why

the license should not be revoked or

modified. The Recipient has the right to

appeal, in accordance with 14 CFR 1245.211,

any decision concerning the revocation or

modification of its license.

(e) Invention identification, disclosures,

and reports.

(1) The Recipient shall establish and

maintain active and effective procedures to

assure that reportable items are promptly

identified and disclosed to Recipient

personnel responsible for the administration

of this clause within six months of

conception and/or first actual reduction to

practice, whichever occurs first in the

performance of work under this contract.

These procedures shall include the

maintenance of laboratory notebooks or

equivalent records and other records as are

reasonably necessary to document the

conception and/or the first actual reduction

to practice of the reportable items, and

records that show that the procedures for

identifying and disclosing reportable items

are followed. Upon request, the Recipient

shall furnish the Grant Officer a description

of such procedures for evaluation and for

determination as to their effectiveness.

(2) The Recipient will disclose each

reportable item to the Grant Officer within

two months after the inventor discloses it in

writing to Recipient personnel responsible

for the administration of this clause or, if

earlier, within six months after the Recipient

becomes aware that a reportable item has

been made, but in any event for subject

inventions before any on sale, public use, or

publication of such invention known to the

Recipient. The disclosure to the agency shall

be in the form of a written report and shall

identify the Agreement under which the

reportable item was made and the inventor(s)

or innovator(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 physical, chemical, biological,

or electrical characteristics of the reportable

item. The disclosure shall also identify any

publication, on sale, or public use of any

subject invention and whether a manuscript

describing such 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 agency, the Recipient will

promptly notify the agency of the acceptance

of any manuscript describing a subject

invention for publication or of any on sale or

public use planned by the Recipient for such

invention.

(3) The Recipient shall furnish the Grant

Officer the following:

(i) Interim reports every 12 months (or

such longer period as may be specified by the

Grant Officer) from the date of the

Agreement, listing reportable items during

that period, and certifying that all reportable

items have been disclosed (or that there are

no such inventions) and that the procedures

required by paragraph (e)(1) of this section

have been followed.

(ii) A final report, within three months

after completion of the work, listing all

reportable items or certifying that there were

no such reportable items, and listing all

subcontracts at any tier containing a patent

rights clause or certifying that there were no

such subcontracts.

(4) The Recipient agrees, upon written

request of the Grant Officer, to furnish

additional technical and other information

available to the Recipient as is necessary for

the preparation of a patent application on a

subject invention and for the prosecution of

the patent application, and to execute all

papers necessary to file patent applications

on subject inventions and to establish the

Government’s rights in the subject

inventions.

(5) The Recipient agrees, subject to 48 CFR

(FAR) 27.302(j), that the Government may

duplicate and disclose subject invention

disclosures and all other reports and papers

furnished or required to be furnished

pursuant to this clause.

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62947

(f) Examination of records relating to

inventions.

(1) The Grant Officer or any authorized

representative shall, pursuant to the

Retention and Examination of Records

provision of this cooperative agreement, have

the right to examine any books (including

laboratory notebooks), records, and

documents of the Recipient relating to the

conception or first actual reduction to

practice of inventions in the same field of

technology as the work under this contract to

determine whether:

(i) Any such inventions are subject

inventions;

(ii) The Recipient has established and

maintained the procedures required by

paragraph (e)(1) of this section; and

(iii) The Recipient and its inventors have

complied with the procedures.

(2) If the Grant Officer learns of an

unreported Recipient invention that the

Grant Officer believes may be a subject

inventions, the Recipient may be required to

disclose the invention to the agency for a

determination of ownership rights.

(3) Any examination of records under this

paragraph will be subject to appropriate

conditions to protect the confidentiality of

the information involved.

(g) Subcontracts.

(1) Unless otherwise authorized or directed

by the Grant Officer, the Recipient shall—

(i) Include this Clause Patent Rights—

Retention by the Recipient—(Large Business)

(suitably modified to identify the parties) in

any subcontract hereunder (regardless of tier)

with other than a small business firm or

nonprofit organization for the performance of

experimental, developmental, or research

work; and

(ii) Include the clause Patent Right—

Retention by the Recipient—(Small Business)

(suitably modified to identify the parties) in

any subcontract hereunder (regardless of tier)

with a small business firm or nonprofit

organization for the performance of

experimental, developmental, or research

work.

(2) In the event of a refusal by a

prospective subcontractor to accept such a

clause the Recipient—

(i) Shall promptly submit a written notice

to the Grant Officer setting forth the

subcontractor’s reasons for such refusal and

other pertinent information that may

expedite disposition of the matter; and

(ii) Shall not proceed with such

subcontract without the written authorization

of the Grant Officer.

(3) The Recipient shall promptly notify the

Grant Officer in writing upon the award of

any subcontract at any tier containing a

patent rights clause by identifying the

subcontractor, the applicable patent rights

clause, the work to be performed under the

subcontract, and the dates of award and

estimated completion. Upon request of the

Grant Officer, the Recipient shall furnish a

copy of such subcontract, and, no more

frequently than annually, a listing of the

subcontracts that have been awarded.

(4) The subcontractor will retain all rights

provided for the Recipient in the clause of

paragraph (g)(1)(i) or (1)(ii) of this section,

whichever is included in the subcontract,

and the Recipient will not, as part of the

consideration for awarding the subcontract,

obtain rights in the subcontractor’s subject

inventions.

(5) Notwithstanding paragraph (g)(4) of this

section, and in recognition of the Contractor’s

substantial contribution of funds, facilities

and/or equipment to the work performed

under this cooperative agreement, the

Recipient is authorized, subject to the rights

of NASA set forth elsewhere in this clause,

to:

(i) Acquire by negotiation and mutual

agreement rights to a subcontractor’s subject

inventions as the Recipient may deem

necessary to obtaining and maintaining of

such private support; and

(ii) Request, in the event of inability to

reach agreement pursuant to paragraph

(g)(5)(i) of this section, that NASA invoke

exceptional circumstances as necessary

pursuant to 37 CFR 401.3(a)(2) if the

prospective subcontractor is a small business

firm or organization, or for all other

organizations, request that such rights for the

Recipient be included as an additional

reservation in a waiver granted pursuant to

14 CFR part 1245, subpart 1. Any such

requests to NASA should be prepared in

consideration of the following guidance and

submitted to the Contracting Officer.

(A) Exceptional circumstances: A request

that NASA make an ‘‘exceptional

circumstances’’ determination pursuant to 37

CFR 401.3(a)(2) must state the scope of rights

sought by the Recipient pursuant to such

determination; identify the proposed

subcontractor and the work to be performed

under the subcontract; and state the need for

the determination.

(B) Waiver petition: The subcontractor

should be advised that unless it requests a

waiver of title pursuant to the NASA Patent

Waiver Regulations (14 CFR part 1245,

subpart 1), NASA will acquire title to the

subject invention (42 U.S.C. 2457, as

amended, sec. 305). If a waiver is not

requested or granted, the Recipient may

request a license from NASA (see licensing

of NASA inventions, 14 CFR part 1245,

subpart 2). A subcontractor requesting a

waiver must follow the procedures set forth

in the attached clause REQUESTS FOR

WAIVER OF RIGHTS—LARGE BUSINESS.

(h) Preference for United States

manufacture. The Recipient agrees that any

products embodying subject inventions or

produced through the use of subject

inventions shall be manufactured

substantially in the United States. However,

in individual cases, the requirement to

manufacture substantially in the United

States may be waived by the Associate

Administrator for Procurement (Code HS)

with the concurrence of the Associate

General Counsel for Intellectual Property

upon a showing by the Recipient that under

the circumstances domestic manufacture is

not commercially feasible.

(i) March-in rights. The Recipient agrees

that, with respect to any subject invention in

which it has acquired title, NASA has the

right in accordance with the procedures in 37

CFR 401.6 and any supplemental regulations

of the agency to require the Recipient, 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 subcontractor,

assignee, or exclusive licensee refuses such a

request NASA has the right to grant such a

license itself if the Federal agency determines

that—

(1) Such action is necessary because the

Recipient 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 Recipient,

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 Recipient,

assignee, or licensees; or

(4) Such action is necessary because the

agreement required by paragraph (i) of this

clause 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.

[End of provision]

§ 1274.913 Patent rights—retention by the

Recipient (small business).

Patent Rights—Retention by the Recipient

(Small Business)

October 2000

(a) Definitions.

(1) ‘‘Invention,’’ as used in this clause,

means any invention or discovery which is

or may be patentable or otherwise protectable

under title 35 of the U.S.C.

(2) Made, as used in this clause, when used

in relation to any invention means the

conception or first actual reduction to

practice such invention.

(3) Nonprofit organization, as used in this

clause, 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.

(4) Practical application, as used in this

clause, means to manufacture, in the case of

a composition of 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 being utilized and that

its benefits are, to the extent permitted by

law or Government regulations, available to

the public on reasonable terms.

(5) Small business firm, as used in this

clause, means a small business concern as

defined at Section 2 of Public Law 85–536

(15 U.S.C. 632) and implementing regulations

(see 13 CFR 121.401 et seq.) of the

Administrator of the Small Business

Administration.

(6) Subject invention, as used in this

clause, means any invention of the

62948 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

subcontractor conceived or first actually

reduced to practice in the performance of

work under this Agreement.

(b) Allocation of principal rights. The

Recipient 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

Recipient 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.

(c) Invention disclosure, election of title,

and filing of patent application by Recipient.

(1) The Recipient will disclose each subject

invention to NASA within two months after

the inventor discloses it in writing to

Recipient personnel responsible for patent

matters. The disclosure to the agency shall be

in the form of a written report and shall

identify the contract 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 agency, the

Recipient will promptly notify the agency of

the acceptance of any manuscript describing

the invention for publication or of any sale

or public use planned by the Recipient.

(2) The Recipient will elect in writing

whether or not to retain title to any such

invention by notifying NASA within two

years of disclosure to the Federal agency.

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 the agency to a date that is no

more than 60 days prior to the end of the

statutory period.

(3) The Recipient 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 Recipient will file patent

applications in additional countries or

international patent offices within either 10

months of the corresponding initial patent

application of 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 Secrecy Order.

(4) Requests for extension of the time for

disclosure election, and filing under

paragraphs (c)(1), (2), and (3) of this section

may, at the discretion of the agency, be

granted.

(d) Conditions when the Government may

obtain title. The Recipient will convey to

NASA, upon written request, title to any

subject invention—

(1) If the Recipient fails to disclose or elect

title to the subject invention within the times

specified in paragraph (c) of this section, or

elects not to retain title; provided, that the

agency may only request title within 60 days

after learning of the failure of the Recipient

to disclose or elect within the specified

times.

(2) In those countries in which the

Recipient fails to file patent applications

within the times specified in paragraph (c) of

this section; provided, however, that if the

Recipient has filed a patent application in a

country after the times specified in paragraph

(c) of this section, but prior to its receipt of

the written request of the Federal agency, the

Recipient shall continue to retain title in that

country.

(3) In any country in which the Recipient

decides not to continue the prosecution of

any application for, to pay the maintenance

fees on, or defend in reexamination or

opposition proceeding on, a patent on a

subject invention.

(e) Minimum rights to Recipient and

protection of the Recipient right to file.

(1) The Recipient will retain a

nonexclusive, royalty-free license throughout

the world in each subject invention to which

the Government obtains title, except if the

Recipient fails to disclose the invention

within the times specified in paragraph (c) of

this section. The Recipient’s license extends

to its domestic subsidiary and affiliates, if

any, within the corporate structure of which

the Recipient is a party and includes the right

to grant sublicenses of the same scope to the

extent the Recipient was legally obligated to

do so at the time the agreement was awarded.

The license is transferable only with the

approval of NASA, except when transferred

to the successor of that part of the Recipient’s

business to which the invention pertains.

(2) The Contractor’s domestic license may

be revoked or modified by NASA to the

extent necessary to achieve expeditious

practical application of subject invention

pursuant to an application for an exclusive

license submitted in accordance with

applicable provisions at 37 CFR part 404 and

agency licensing regulations (if any). This

license will not be revoked in that field of

use or the geographical areas in which the

subcontractor has achieved practical

application and continues to make the

benefits of the invention reasonable

accessible to the public. The license in any

foreign country may be revoked or modified

at the discretion of NASA to the extent the

subcontractor, its licensees, or the domestic

subsidiaries or affiliates have failed to

achieve practical application in that foreign

country.

(3) Before revocation or modification of the

license, NASA will furnish the Recipient a

written notice of its intention to revoke or

modify the license, and the Recipient will be

allowed 30 days (or such other time as may

be authorized by NASA for good cause

shown by the Recipient) after the notice to

show cause why the license should not be

revoked or modified. The Recipient has the

right to appeal, in accordance with

applicable regulations in 37 CFR part 404,

concerning the licensing of Governmentowned inventions, any decision concerning

the revocation or modification of the license.

(f) Recipient action to protect the

Government’s interest.

(1) The Recipient agrees to execute or to

have executed and promptly deliver to NASA

all instruments necessary to:

(i) Establish or confirm the rights the

Government has throughout the world in

those subject inventions to which the

Subcontractor elects to retain title, and,

(ii) Convey title to the Federal agency

when requested under paragraph (d) of this

section and to enable the Government to

obtain patent protection throughout the

world in that subject invention.

(2) The Recipient agrees to require, by

written agreement, its employees, other than

clerical and nontechnical employees, to

disclose promptly in writing to personnel

identified as responsible for the

administration of patent matters and in a

format suggested by the Recipient each

subject invention made under contract in

order that the Recipient can comply with the

disclosure provisions of paragraph (c) of this

section, and to execute all papers necessary

to file patent applications on subject

inventions and to establish the Government’s

rights in the subject inventions. This

disclosure format should require, as a

minimum, the information required by

paragraph (c)(1) of this section. The Recipient

shall instruct such employees, through

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 U.S. or foreign statutory bars.

(3) The Recipient will notify NASA of any

decisions not to continue the prosecution of

a patent application, pay maintenance fees,

or defend in a reexamination or opposition

proceeding on a patent, in any country, not

less than 30 days before the expiration of the

response period required by the relevant

patent office.

(4) The Recipient agrees to include, within

the specification of any United States patent

application and any patent issuing thereon

covering a subject invention the following

statement, ‘‘This invention was made with

Government support under (identify the

agreement) awarded by NASA. The

Government has certain rights in the

invention.’’

(5) The Recipient shall provide the Grant

Officer the following:

(i) A listing every 12 months (or such

longer period as the Grant Officer may

specify) from the date of the Agreement, of

all subject inventions required to be

disclosed during the period.

(ii) A final report prior to closeout of the

Agreement listing all subject inventions or

certifying that there were none.

(iii) Upon request, the filing date, serial

number, and title, a copy of the patent

application, and patent number and issue

date for any subject invention in any country

in which the Recipient has applied for

patents.

(iv) An irrevocable power to inspect and

make copies of the patent application file, by

the Government, when a Federal Government

employee is a co-inventor.

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62949

(g) Subcontracts.

(1) Unless otherwise authorized or directed

by the Grant Officer, the Recipient shall—

(i) Include this clause (Patent Rights—

Retention by the Recipient (Small Business)),

suitably modified to identify the parties, in

all subcontracts, regardless of tier, for

experimental, developmental, or research

work to be performed by a small business

firm or domestic nonprofit organization; and

(ii) Include in all other subcontracts,

regardless of tier, for experimental,

developmental, or research work the patent

rights clause (Patent Rights—Retention by the

Recipient (Large Business)).

(2) In the event of a refusal by a

prospective subcontractor to accept such a

clause the Recipient—

(i) Shall promptly submit a written notice

to the Grant Officer setting forth the

subcontractor’s reasons for such refusal and

other pertinent information that may

expedite disposition of the matter; and

(ii) Shall not proceed with such

subcontract without the written authorization

of the Grant Officer.

(3) The Recipient shall promptly notify the

Grant Officer in writing upon the award of

any subcontract at any tier containing a

patent rights clause by identifying the

subcontractor, the applicable patent rights

clause, the work to be performed under the

subcontract, and the dates of award and

estimated completion. Upon request of the

Grant Officer, the Recipient shall furnish a

copy of such subcontract, and, no more

frequently than annually, a listing of the

subcontracts that have been awarded.

(4) The subcontractor will retain all rights

provided for the Recipient in the clause

under paragraph (g)(1)(i) or (ii) of this

section, whichever is included in the

subcontract, and the Recipient will not, as

part of the consideration for awarding the

subcontract, obtain rights in the

subcontractor’s subject inventions.

(5) Notwithstanding paragraph (g)(4) of this

section, and in recognition of the Contractor’s

substantial contribution of funds, facilities

and/or equipment to the work performed

under this cooperative agreement, the

Recipient is authorized, subject to the rights

of NASA set forth elsewhere in this clause,

to—

(i) Acquire by negotiation and mutual

agreement rights to a subcontractor’s subject

inventions as the Recipient may deem

necessary to obtaining and maintaining of

such private support; and

(ii) Request, in the event of inability to

reach agreement pursuant to paragraph

(g)(5)(i) of this section that NASA invoke

exceptional circumstances as necessary

pursuant to 37 CFR 401.3(a)(2) if the

prospective subcontractor is a small business

firm or organization, or for all other

organizations, request that such rights for the

Recipient be included as an additional

reservation in a waiver granted pursuant to

14 CFR part 1245, subpart 1. Any such

requests to NASA should be prepared in

consideration of the following guidance and

submitted to the Contracting Officer.

(A) Exceptional circumstances: A request

that NASA make an ‘‘exceptional

circumstances’’ determination pursuant to 37

CFR 401.3(a)(2) must state the scope of rights

sought by the Recipient pursuant to such

determination; identify the proposed

subcontractor and the work to be performed

under the subcontract; and state the need for

the determination.

(B) Waiver petition: The subcontractor

should be advised that unless it requests a

waiver of title pursuant to the NASA Patent

Waiver Regulations (14 CFR part 1245,

subpart 1), NASA will acquire title to the

subject invention (42 U.S.C. 2457, as

amended, sec. 305). If a waiver is not

requested or granted, the Recipient may

request a license from NASA (see licensing

of NASA inventions, 14 CFR part 1245,

subpart 2). A subcontractor requesting a

waiver must follow the procedures set forth

in the REQUESTS FOR WAIVER OF

RIGHTS—LARGE BUSINESS provision.

(h) Reporting on utilization of subject

inventions. The Recipient 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

Recipient 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 Recipient, and such other

data and information as the agency may

reasonably specify. The Recipient also agrees

to provide additional reports as may be

requested by the agency in connection with

any march-in proceeding under-taken by the

agency in accordance with paragraph (i) of

this section. As required by 35 U.S.C.

202(c)(5), the agency agrees it will not

disclose such information to persons outside

the Government without permission of the

Recipient.

(i) Preference for United States

manufacture. The Recipient agrees that any

products embodying subject inventions or

produced through the use of subject

inventions shall be manufactured

substantially in the United States. However,

in individual cases, the requirement to

manufacture substantially in the United

States may be waived by the Associate

Administrator for Procurement (Code HS)

with the concurrence of the Associate

General Counsel for Intellectual Property

upon a showing by the Recipient that under

the circumstances domestic manufacture is

not commercially feasible.

(j) March-in rights. The Recipient agrees

that, with respect to any subject invention in

which it has acquired title, NASA has the

right in accordance with the procedures in 37

CFR 401.6 and any supplemental regulations

of the agency to require the Recipient, 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 subcontractor,

assignee, or exclusive licensee refuses such a

request NASA has the right to grant such a

license itself if the Federal agency determines

that—

(1) Such action is necessary because the

Recipient 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 Recipient,

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 Recipient,

assignee, or licensees; or

(4) Such action is necessary because the

agreement required by paragraph (i) of this

section 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 Agreements with

nonprofit organizations. If the Recipient 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 NASA, except where such

assignment is made to an organization which

has one of its primary functions the

management of inventions; provided, that

such assignee will be subject to the same

provisions as the Recipient;

(2) The Recipient will share royalties

collected on a subject invention with the

inventor, including Federal employee coinventors (when NASA 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 Recipient 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 Recipient 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 Recipient 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 Recipient. However,

the Recipient agrees that the Secretary of

Commerce may review the Contractor’s

licensing program and decisions regarding

small business applicants, and the Recipient

will negotiate changes to its licensing

policies, procedures, or practices with the

Secretary of Commerce when the Secretary’s

review discloses that the Recipient could

take reasonable steps to more effectively

implement the requirements of this

paragraph.

(l) A copy of all submissions or requests

required by this clause, plus a copy of any

reports, manuscripts, publications, or similar

material bearing on patent matters, shall be

sent to the installation Patent Counsel in

62950 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

addition to any other submission

requirements in the cooperative agreement. If

any reports contain information describing a

‘‘subject invention’’ for which the Recipient

has elected or may elect title, NASA will use

reasonable efforts to delay public release by

NASA or publication by NASA in a NASA

technical series, in order for a patent

application to be filed, provided that the

Recipient identify the information and the

‘‘subject invention’’ to which it relates at the

time of submittal. If required by the Grant

Officer, the Recipient shall provide the filing

date, serial number and title, a copy of the

patent application, and a patent number and

issue date for any ‘‘subject invention’’ in any

country in which the Recipient has applied

for patents.

[End of provision]

§ 1274.914 Requests for waiver of rights—

large business.

Requests for Waiver of Rights—Large

Business

October 2000

(a) In accordance with the NASA Patent

Waiver Regulations, 14 CFR part 1245,

subpart 1, waiver of rights to any or all

inventions made or that may be made under

a NASA agreement, contract or subcontract

with other than a small business firm or a

domestic nonprofit organization may be

requested at different time periods. Advance

waiver of rights to any or all inventions that

may be made under a contract or subcontract

may be requested prior to the execution of

the agreement, contract or subcontract, or

within 30 days after execution by the

selected Recipient. In addition, waiver of

rights to an identified invention made and

reported under a agreement, contract or

subcontract may be requested, even though a

request for an advance waiver was not made

or, if made, was not granted.

(b) Each request for waiver of rights shall

be by petition to the Administrator and shall

include an identification of the petitioner;

place of business and address; if petitioner is

represented by counsel, the name, address,

and telephone number of the counsel; the

signature of the petitioner or authorized

representative; and the date of signature. No

specific forms need be used, but the request

should contain a positive statement that

waiver of rights is being requested under the

NASA Patent Waiver Regulations; a clear

indication of whether the request is for an

advance waiver or for a waiver of rights for

an individual identified invention; whether

foreign rights are also requested and, if so,

the countries, and a citation of the specific

section or sections of the regulations under

which such rights are requested; and the

name, address, and telephone number of the

party with whom to communicate when the

request is acted upon. Requests for advance

waiver of rights should, preferably, be

included with the proposal, but in any event

in advance of negotiations.

(c) Petitions for advance waiver, prior to

agreement execution, must be submitted to

the Grant Officer. All other petitions will be

submitted to the Patent Representative

designated in the contract.

(d) Petitions submitted with proposals

selected for negotiation of an agreement will

be forwarded by the Grant Officer to the

installation Patent Counsel for processing

and then to the Inventions and Contributions

Board. The Board will consider these

petitions and where the Board makes the

findings to support the waiver, the Board will

recommend to the Administrator that waiver

be granted, and will notify the petitioner and

the Grant Officer of the Administrator’s

determination. The Grant Officer will be

informed by the Board whenever there is

insufficient time or information or other

reasons to permit a decision to be made

without unduly delaying the execution of the

agreement. In the latter event, the petitioner

will be so notified by the Grant Officer. All

other petitions will be processed by

installation Patent Counsel and forwarded to

the Board. The Board shall notify the

petitioner of its action and if waiver is

granted, the conditions, reservations, and

obligations thereof will be included in the

Instrument of Waiver. Whenever the Board

notifies a petitioner of a recommendation

adverse to, or different from, the waiver

requested, the petitioner may request

reconsideration under procedures set forth in

the Regulations.

[End of provision]

§ 1274.915 Restrictions on sale or transfer

of technology to foreign firms or

institutions.

Restrictions on Sale or Transfer of

Technology to Foreign Firms or Institutions

October 2000

(a) The parties agree that access to

technology developments under this

Agreement by foreign firms or institutions

must be carefully controlled. For purposes of

this clause, a transfer includes a sale of the

company, or sales or licensing of the

technology. Transfers do not include—

(1) Sales of products or components;

(2) Licenses of software or documentation

related to sales of products or components;

or

(3) Transfers to foreign subsidiaries of the

Recipient for purposes related to this

Agreement.

(b) The Recipient shall provide timely

notice to the Grant Officer in writing of any

proposed transfer of technology developed

under this Agreement. If NASA determines

that the transfer may have adverse

consequences to the national security

interests of the United States, or to the

establishment of a robust United States

industry, NASA and the Recipient shall

jointly endeavor to find alternatives to the

proposed transfer which obviate or mitigate

potential adverse consequences of the

transfer.

[End of provision]

§ 1274.916 Liability and risk of loss.

Liability and Risk of Loss

October 2000

(a) With regard to activities undertaken

pursuant to this agreement, neither party

shall make any claim against the other,

employees of the other, the other’s related

entities (e.g., Contractors, subcontractors,

etc.), or employees of the other’s related

entities for any injury to or death of its own

employees or employees of its related

entities, or for damage to or loss of its own

property or that of its related entities,

whether such injury, death, damage or loss

arises through negligence or otherwise,

except in the case of willful misconduct.

(b) To the extent that a risk of damage or

loss is not dealt with expressly in this

agreement, each party’s liability to the other

party arising out of this Agreement, whether

or not arising as a result of an alleged breach

of this Agreement, shall be limited to direct

damages only, and shall not include any loss

of revenue or profits or other indirect or

consequential damages.

[End of provision]

§ 1274.917 Additional funds.

Additional Funds

October 2000

Pursuant to this agreement, NASA is

providing a fixed amount of funding for

activities to be undertaken under the terms

of this cooperative agreement. NASA is

under no obligation to provide additional

funds. Under no circumstances shall the

Recipient undertake any action which could

be construed to imply an increased

commitment on the part of NASA under this

cooperative agreement.

[End of provision]

§ 1274.918 Incremental funding.

Incremental Funding

October 2000

(a) Of the award amount indicated on the

cover page of this agreement, only the

obligated amount indicated on the cover page

of this agreement is available for payment.

NASA anticipates making additional

allotments of funds as required,

(b) These funds will be obligated as

appropriated funds become available without

any action required of the Recipient. NASA

is not obligated to make payments in excess

of the total funds obligated.

[End of provision]

§ 1274.919 Cost principles and accounting

standards.

Cost Principles and Accounting Standards

October 2000

The expenditure of Government funds by

the Recipient and the allowability of costs

recognized as a resource contribution by the

Recipient (See clause entitled ‘‘Resource

Sharing Requirements’’) shall be governed by

the FAR cost principles, 48 CFR part 31. (If

the Recipient is a consortium which includes

non-commercial firm members, cost

allowability for those members will be

determined as follows: Allowability of costs

incurred by State, local or federallyrecognized Indian tribal governments is

determined in accordance with the

provisions of OMB Circular A–87, ‘‘Cost

Principles for State and Local Governments.’’

The allowability of costs incurred by nonVerDate 11<MAY>2000 19:02 Oct 18, 2000 Jkt 194001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\19OCR3.SGM pfrm01 PsN: 19OCR3
Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62951

profit organizations is determined in

accordance with the provisions of OMB

Circular A–122, ‘‘Cost Principles for NonProfit Organizations.’’ The allowability of

costs incurred by institutions of higher

education is determined in accordance with

the provisions of OMB Circular A–21, ‘‘Cost

Principles for Educational Institutions.’’ The

allowability of costs incurred by hospitals is

determined in accordance with the

provisions of appendix E of 45 CFR part 74,

‘‘Principles for Determining Costs Applicable

to Research and Development Under Grants

and Contracts with Hospitals.’’) Recipient’s

method for accounting for the expenditure of

funds must be consistent with Generally

Accepted Accounting Principles.

[End of provision]

§ 1274.920 Responsibilities of the NASA

Technical Officer.

Responsibilities of the NASA Technical

Officer

October 2000

(a) The NASA Grant Administrator and

Technical Officer for this cooperative

agreement are identified on the cooperative

agreement cover sheet.

(b) The Grant Specialist shall serve as

NASA’s authorized representative for the

administrative elements of all work to be

performed under the agreement.

(c) The Technical Officer shall have the

authority to issue written Technical Advice

which suggests redirecting the project work

(e.g., by changing the emphasis among

different tasks), or pursuing specific lines of

inquiry likely to assist in accomplishing the

effort. The Technical Officer shall have the

authority to approve or disapprove those

technical reports, plans, and other technical

information the Recipient is required to

submit to NASA for approval. The Technical

Officer is not authorized to issue and the

Recipient shall not follow any Technical

Advice which constitutes work which is not

contemplated under this agreement; which in

any manner causes an increase or decrease in

the resource sharing or in the time required

for performance of the project; which has the

effect of changing any of the terms or

conditions of the cooperative agreement; or

which interferes with the Recipient’s right to

perform the project in accordance with the

terms and conditions of this cooperative

agreement.

[End of provision]

§ 1274.921 Publications and reports: Nonproprietary research results.

Publications and Reports: Non-Proprietary

Research Results

October 2000

(a) NASA encourages the widest

practicable dissemination of research results

at all times during the course of the

investigation consistent with the other terms

of this agreement.

(b) All information disseminated as a result

of the cooperative agreement shall contain a

statement which acknowledges NASA’s

support and identifies the cooperative

agreement by number.

(c) Prior approval by the NASA Technical

Officer is required only where the Recipient

requests that the results of the research be

published in a NASA scientific or technical

publication. Two copies of each draft

publication shall accompany the approval

request.

(d) Reports shall contain full bibliographic

references, abstracts of publications and lists

of all other media in which the research was

discussed. The Recipient shall submit the

following technical reports:

(1) A progress report for every year of the

cooperative agreement (except the final year).

Each report is due 60 days before the

anniversary date of the cooperative

agreement and shall describe research

accomplished during the report period.

(2) A summary of research is due by 90

days after the expiration date of the

cooperative agreement, regardless of whether

or not support is continued under another

cooperative agreement. This report is

intended to summarize the entire research

accomplished during the duration of the

cooperative agreement.

(e) Progress reports and summaries of

research shall display the following on the

first page:

(1) Title of the cooperative agreement.

(2) Type of report.

(3) Period covered by the report.

(4) Name and address of the Recipient’s

organization.

(5) Cooperative agreement number.

(f) An original and two copies, one of

which shall be of suitable quality to permit

micro-reproduction, shall be sent as follows:

(1) Original—Grant Officer.

(2) Copy—Technical Officer.

(3) Micro-reproducible copy—NASA

Center for Aerospace Information (CASI),

Parkway Center, Attn: Document Processing

Section, 7121 Standard Drive, Hanover, MD

21076.

(g) The requirements set forth under this

provision may be modified by the Grant

Officer based on specific report needs for the

particular grant or cooperative agreement.

[End of provision]

§ 1274.922 Suspension or termination.

Suspension or Termination

October 2000

(a) This cooperative agreement may be

suspended or terminated in whole or in part

by the Recipient or by NASA after

consultation with the other party. NASA may

terminate the agreement, for example, if the

Recipient is not making anticipated technical

progress, if the Recipient materially fails to

comply with the terms of the agreement, if

the Recipient materially changes the

objective of the agreement, or if appropriated

funds are not available to support the

program.

(b) Upon fifteen (15) days written notice to

the other party, either party may temporarily

suspend the cooperative agreement, pending

corrective action or a decision to terminate

the cooperative agreement. The notice should

express the reasons why the agreement is

being suspended.

(c) In the event of termination by either

party, the Recipient shall not be entitled to

additional funds or payments except as may

be required by the Recipient to meet NASA’s

share of commitments which had in the

judgment of NASA become firm prior to the

effective date of termination and are

otherwise appropriate. In no event, shall

these additional funds or payments exceed

the amount of the next payable milestone

billing amount.

[End of provision]

§ 1274.923 Equipment and other property.

Equipment and Other Property

October 2000

(a) NASA cooperative agreements permit

acquisition of special purpose equipment

required for the conduct of research.

Acquisition of special purpose equipment

costing in excess of $5,000 and not included

in the approved proposal budget requires the

prior approval of the Grant Officer unless the

item is merely a different model of an item

shown in the approved proposal budget.

(b) Recipients may not purchase, as a direct

cost to the cooperative agreement, items of

general purpose equipment, examples of

which include but are not limited to office

equipment and furnishings, air conditioning

equipment, reproduction and printing

equipment, motor vehicles, and automatic

data processing equipment. If the Recipient

requests an exception, the Recipient shall

submit a written request for Grant Officer

approval, prior to purchase by the Recipient,

stating why the Recipient cannot charge the

general purpose equipment to indirect costs.

(c) Under no circumstances shall

cooperative agreement funds be used to

acquire land or any interest therein, to

acquire or construct facilities (as defined in

48 CFR (FAR) 45.301), or to procure

passenger carrying vehicles.

(d) The government shall have title to

equipment and other personal property

acquired with government funds. Such

property shall be disposed of pursuant to 48

CFR (FAR) 45.603. The Recipient shall have

title to equipment and other personal

property acquired with Recipient funds.

Such property shall remain with the

Recipient at the conclusion of the

cooperative agreement.

(e) Title to Government furnished

equipment (including equipment, title to

which has been transferred to the

Government prior to completion of the work)

will remain with the Government.

(f) The Recipient shall establish and

maintain property management standards for

Government property and otherwise manage

such property as set forth in 48 CFR (FAR)

45.5 and 48 CFR (NFS) 1845.5.

(g) Recipients shall submit annually a

NASA Form 1018, NASA Property in the

Custody of Contractors, in accordance with

the instructions on the form, the provisions

of 18 CFR (NFS) 1845.71 and any

supplemental instructions that may be issued

by NASA for the current reporting period.

The original NF 1018 shall be submitted to

the center Deputy Chief Financial Officer

(Finance) with three copies sent concurrently

to the center Industrial Property Officer. The

annual reporting period shall be from

October 1 of each year through September 30

62952 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

of the following year. The report shall be

submitted in time to be received by October

31. Negative reports (i.e. no reportable

property) are required. The information

contained in the reports in entered into the

NASA accounting system to reflect current

asset values for agency financial statement

purposes. Therefore, it is essential that

required reports be received no later than

October 31. A final report is required within

30 days after expiration of the agreement.

[End of provision]

§ 1274.924 Civil rights.

Civil Rights

October 2000

Work on NASA cooperative agreements is

subject to the provisions of Title VI of the

Civil Rights Act of 1964 (Pub. L. 88–352; 42

U.S.C. 2000d–1), Title IX of the Education

Amendments of 1972 (20 U.S.C. 1680 et seq.),

section 504 of the Rehabilitation Act of 1973,

as amended (29 U.S.C. 794), the Age

Discrimination Act of 1975 (42 U.S.C. 6101

et seq.), and the NASA implementing

regulations (14 CFR parts 1250, 1251, 1252

and 1253).

[End of provision]

§ 1274.925 Subcontracts.

Subcontracts

October 2000

(a) Recipients are not authorized to issue

grants or cooperative agreements.

(b) NASA Grant Officer consent is required

for subcontracts over $100,000, if not

accepted by NASA in the original proposal.

The Recipient shall provide the following

information to the Grant Officer:

(1) A copy of the proposed subcontract.

(2) Basis for subcontractor selection.

(3) Justification for lack of competition

when competitive bids or offers are not

obtained.

(4) Basis for award cost or award price.

(c) The Recipient shall utilize small

business concerns, small disadvantaged

business concerns, Historically Black

Colleges and Universities, minority

educational institutions, and women-owned

small business concerns as subcontractors to

the maximum extent practicable.

[End of provision]

§ 1274.926 Clean Air-Water Pollution

Control Acts.

Clean Air-Water Pollution Control Acts

October 2000

If this cooperative agreement or

supplement thereto is in excess of $100,000,

the Recipient agrees to notify the Grant

Officer promptly of the receipt, whether prior

or subsequent to the Recipient’s acceptance

of this cooperative agreement, of any

communication from the Director, Office of

Federal Activities, Environmental Protection

Agency (EPA), indicating that a facility to be

utilized under or in the performance of this

cooperative agreement or any subcontract

thereunder is under consideration to be listed

on the EPA ‘‘List of Violating Facilities’’

published pursuant to 40 CFR part 15. By

acceptance of a cooperative agreement in

excess of $100,000, the Recipient—

(a) Stipulates that any facility to be utilized

thereunder is not listed on the EPA ‘‘List of

Violating Facilities’’ as of the date of

acceptance;

(b) Agrees to comply with all requirements

of section 114 of the Clean Air Act, as

amended (42 U.S.C. 1857 et seq. as amended

by Pub. L. 91–604) and section 308 of the

Federal Water Pollution Control Act, as

amended (33 U.S.C. 1251 et seq. as amended

by Pub. L. 92–500) relating to inspection,

monitoring, entry, reports and information,

and all other requirements specified in the

aforementioned sections, as well as all

regulations and guidelines issued thereunder

after award of and applicable to the

cooperative agreement; and

(c) Agrees to include the criteria and

requirements of this clause in every

subcontract hereunder in excess of $100,000,

and to take such action as the Grant Officer

may direct to enforce such criteria and

requirements.

[End of provision]

§ 1274.927 Debarment and suspension

and Drug-Free Workplace.

Debarment and Suspension and Drug-Free

Workplace

October 2000

NASA cooperative agreements are subject

to the provisions of 14 CFR Part 1265,

Government-wide Debarment and

Suspension (Nonprocurement) and

Government-wide requirements for Drug-Free

Workplace, unless excepted by 14 CFR

1265.110 or 1265.610.

[End of provision]

§ 1274.928 Foreign national employee

investigative requirements.

Foreign National Employee Investigative

Requirements

October 2000

(a) The Recipient shall submit a properly

executed Name Check Request (NASA Form

531) and a completed applicant fingerprint

card (Federal Bureau of Investigation Card

FD–258) for each foreign national employee

requiring access to a NASA Installation.

These documents shall be submitted to the

Installation’s Security Office at least 75 days

prior to the estimated duty date. The NASA

Installation Security Office will request a

National Agency Check (NAC) for foreign

national employees requiring access to NASA

facilities. The NASA Form 531 and

fingerprint card may be obtained from the

NASA Installation Security Office.

(b) The Installation Security Office will

request from NASA Headquarters, Office of

External Relations (Code I), approval for each

foreign national’s access to the Installation

prior to providing access to the Installation.

If the access approval is obtained from NASA

Headquarters prior to completion of the NAC

and performance of the cooperative

agreement requires a foreign national to be

given access immediately, the Technical

Officer may submit an escort request to the

Installation’s Chief of Security.

[End of provision]

§ 1274.929 Restrictions on lobbying.

Restrictions on Lobbying

October 2000

This award is subject to the provisions of

14 CFR Part 1271 ‘‘New Restrictions on

Lobbying.’’

[End of provision]

§ 1274.930 Travel and transportation.

Travel and Transportation

October 2000

(a) For travel funded by the government

under this agreement, section 5 of the

International Air Transportation Fair

Competitive Practices Act of 1974 (49 U.S.C.

40118) (Fly America Act) requires the

Recipient to use U.S.-flag air carriers for

international air transportation of personnel

and property to the extent that service by

those carriers is available.

(b) Department of Transportation

regulations, 49 CFR part 173, govern

Recipient shipment of hazardous materials

and other items.

[End of provision]

§ 1274.931 Electronic funds transfer

payment methods.

Electronic Funds Transfer Payment Methods

October 2000

Payments under this cooperative

agreement will be made by the Government

by electronic funds transfer through the

Treasury Fedline Payment System (FEDLINE)

or the Automated Clearing House (ACH), at

the option of the Government. After award,

but no later than 14 days before an invoice

is submitted, the Recipient shall designate a

financial institution for receipt of electronic

funds transfer payments, and shall submit

this designation to the Grant Officer or other

Government official, as directed.

(a) For payment through FEDLINE, the

Recipient shall provide the following

information:

(1) Name, address, and telegraphic

abbreviation of the financial institution

receiving payment.

(2) The American Bankers Association 9-

digit identifying number for wire transfers of

the financing institution receiving payment if

the institution has access to the Federal

Reserve Communication System.

(3) Payee’s account number at the financial

institution where funds are to be transferred.

(4) If the financial institution does not have

access to the Federal Reserve

Communications System, name, address, and

telegraphic abbreviation of the correspondent

financial institution through which the

financial institution receiving payment

obtains wire transfer activity. Provide the

telegraphic abbreviation and American

Bankers Association identifying number for

the correspondent institution.

(b) For payment through ACH, the

Recipient shall provide the following

information:

(1) Routing transit number of the financial

institution receiving payment (same as

American Bankers Association identifying

number used for FEDLINE).

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62953

(2) Number of account to which funds are

to be deposited.

(3) Type of depositor account (‘‘C’’ for

checking, ‘‘S’’ for savings).

(4) If the Recipient is a new enrollee to the

ACH system, a ‘‘Payment Information Form,’’

SF 3881, must be completed before payment

can be processed.

(c) In the event the Recipient, during the

performance of this cooperative agreement,

elects to designate a different financial

institution for the receipt of any payment

made using electronic funds transfer

procedures, notification of such change and

the required information specified above

must be received by the appropriate

Government official 30 days prior to the date

such change is to become effective.

(d) The documents furnishing the

information required in this clause must be

dated and contain the signature, title, and

telephone number of the Recipient official

authorized to provide it, as well as the

Recipient’s name and contract number.

(e) Failure to properly designate a financial

institution or to provide appropriate payee

bank account information may delay

payments of amounts otherwise properly

due.

[End of provision]

§ 1274.932 Retention and examination of

records.

Retention and Examination of Records

October 2000

Financial records, supporting documents,

statistical records, and all other records (or

microfilm copies) pertinent to this

cooperative agreement shall be retained for a

period of 3 years, except that records for nonexpendable property acquired with

cooperative agreement funds shall be

retained for 3 years after its final disposition

and, if any litigation, claim, or audit is

started before the expiration of the 3-year

period, the records shall be retained until all

litigation, claims, or audit findings involving

the records have been resolved. The retention

period starts from the date of the submission

of the final invoice. The Administrator of

NASA, the Comptroller General of the United

States, the Office of Inspector General, or any

of their duly authorized representatives, shall

have access to any pertinent books,

documents, papers, and records of the

Recipient and of subcontractors to make

audits, examinations, excerpts, and

transcripts. All provisions of this clause shall

apply to any subcontractor performing

substantive work under this cooperative

agreement.

[End of provision]

§ 1274.933 Summary of recipient reporting

responsibilities.

Summary of Recipient Reporting

Responsibilities

October 2000

This cooperative agreement requires the

recipient to submit a number of reports.

These reporting requirements are

summarized below. In the event of a conflict

between this provision and other provisions

of the cooperative agreement requiring

reporting, the other provisions take

precedence.

[The Grant Officer may add/delete

reporting requirements as appropriate.]

62954 Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations

Report Frequency Reference

Report of Joint NASA/Recipient Inventions.As required ............................................ § 1274.911 Patent Rights (Paragraph (b)(4)).

Interim Report of Reportable Items ......... Every 12 months ................................... Patent Rights—Retention by the Recipient (Large Business) (Paragraph (e)(3)(i)).

Final Report of Reportable Items ............. 3 months after completion .................... § 1274.912 Patent Rights—Retention by the Recipient

(Large Business) (Paragraph (e)(3)(ii)).

Disclosure of Subject Inventions .............. Within 2 months after inventor discloses it to Recipient.Patent Rights—Retention by the Recipient (Large Business) (Paragraph (e)(2)) or § 1274.913 Patent Rights—

Retention by the Recipient (SmallBusiness) (Paragraph

(c)(1)).

Election of Title to a Subject Invention .... 1 year after disclosure of the subject

invention if a statutory bar exists,

otherwise within 2 years.

Patent Rights—Retention by the Recipient (Small Business) (Paragraph (c)(2)).

Listing of Subject Inventions .................... Every 12 months from the date of the

agreement.

Patent Rights—Retention by the Recipient (Small Business) (Paragraph (f)(5)(i)).

Subject Inventions Final Report ............... Prior to close-out of the agreement ...... § 1274.913 Retention by the Recipient (Small Business)

(Paragraph (f)(5)(ii).

Notification of Decision to Forego Patent

Protection.

30 days before expiration of the response period.Patent Rights—Retention by the Recipient (Small Business) (Paragraph (f)(3)).

Notification of a Subcontract Award ........ Promptly upon award of a subcontract Patent Rights—Retention by the Recipient (Large Business) (Paragraph (g)(3)) or § 1274.913 Patent Rights—

Retention by the Recipient (Small Business) (Paragraph

(g)(3).

Utilization of Subject Invention ................. Annually ................................................. Patent Rights—Retention by the Recipient (Small Business) (Paragraph (h)).

Notice of Proposed Transfer of Technology.Prior to transferring technology to foreign firm or institution.§ 1274.915 Restrictions on Sale or Transfer of Technology

to Foreign Firms or Institutions (Paragraph (b)).

Progress Report ....................................... 60 days prior to the anniversary date of

the agreement (except final year).

Publications and Reports: Non-Proprietary Research Results (Paragraph (d)(1)).

Summary of Research ............................. 90 days after completion of agreement Publications and Reports: Non-Proprietary Research Results (Paragraph (d)(2)).

NASA Form 1018 Property in the Custody of Contractors.Annually by October 31 ........................ Equipment and Other Property (Paragraph (g)).

NASA Form 1018 Property in the Custody of Contractors.60 days after expiration date of agreement.Equipment and Other Property (Paragraph (g)).

[End of provision]

§ 1274.934 Safety.

Safety

October 2000

(a) The Recipient shall act responsibly in

matters of safety and shall take all reasonable

safety measures in performing under this

grant or cooperative agreement. The

Recipient shall comply with all applicable

federal, state, and local laws relating to

safety. The Recipient shall maintain a record

of, and will notify the NASA Grant Officer

of any accident involving death, disabling

injury or substantial loss of property in

performing this grant or cooperative

agreement. The Recipient will advise NASA

of hazards that come to its attention as a

result of the work performed.

(b) Where the work under this grant or

cooperative agreement involves flight

hardware, the hazardous aspects, if any, of

such hardware will be identified, in writing,

by the recipient. Compliance with this

provision by subcontractors shall be the

responsibility of the Recipient.

[End of provision]

Federal Register / Vol. 65, No. 203 / Thursday, October 19, 2000 / Rules and Regulations 62955

Appendix to Part 1274—Listing of

Exhibits

Exhibit A to Part 1274—Contract Provisions

All contracts awarded by a recipient,

including small purchases, shall contain the

following provisions if applicable:

1. Equal Employment Opportunity. All

contracts shall contain a provision requiring

compliance with Executive Order 11246,

‘‘Equal Employment Opportunity,’’ as

amended by Executive Order 11375,

‘‘Amending Executive Order 11246 Relating

to Equal Employment Opportunity,’’ and as

supplemented by regulations at 41 CFR

Chapter 60, ‘‘Office of Federal Contract

Compliance Programs, Equal Employment

Opportunity, Department of Labor.’’

2. Copeland ‘‘Anti-Kickback’’ Act (18

U.S.C. 874 and 40 U.S.C. 276c). All contracts

in excess of $50,000 for construction or

repair awarded by recipients and

subrecipients shall include a provision for

compliance with the Copeland ‘‘AntiKickback’’ Act (18 U.S.C. 874), as

supplemented by Department of Labor

regulations (29 CFR part 3, ‘‘Contractors and

Subcontractors on Public Building or Public

Work Financed in Whole or in Part by Loans

or Grants from the United States’’). The Act

provides that each recipient or subrecipient

shall be prohibited from inducing, by any

means, any person employed in the

construction, completion, or repair of public

work, to give up any part of the

compensation to which he is otherwise

entitled. The recipient shall report all

suspected or reported violations to NASA.

3. Contract Work Hours and Safety

Standards Act (40 U.S.C. 327–333). Where

applicable, all contracts awarded by

recipients in excess of $2,000 for

construction contracts and in excess of

$50,000 for other contracts, other than

contracts for commercial items, that involve

the employment of mechanics or laborers

shall include a provision for compliance with

Sections 102 and 107 of the Contract Work

Hours and Safety Standards Act (40 U.S.C.

327–333), as supplemented by Department of

Labor regulations (29 CFR part 5). Under

subsection 102 of the Act, each recipient

shall be required to compute the wages of

every mechanic and laborer on the basis of

a standard work week of 40 hours. Work in

excess of the standard work week is

permissible provided that the worker is

compensated at a rate of not less than 11⁄2

times the basic rate of pay for all hours

worked in excess of 40 hours in the work

week. Section 107 of the Act is applicable to

construction work and provides that no

laborer or mechanic shall be required to work

in surroundings or under working conditions

which are unsanitary, hazardous or

dangerous. These requirements do not apply

to the purchases of supplies or materials or

articles ordinarily available on the open

market, or contracts for transportation or

transmission of intelligence.

4. Rights to Inventions Made Under a

Contract or Agreement. Contracts or

agreements for the performance of

experimental, developmental, or research

work shall provide for the rights of the

Federal Government and the recipient in any

resulting invention in accordance with 37

CFR part 401, ‘‘Rights to Inventions Made by

Nonprofit Organizations and Small Business

Firms Under Government Grants, Contracts

and Cooperative Agreements,’’ and any

implementing regulations issued by the

awarding agency.

5. Clean Air Act (42 U.S.C. 7401 et seq.)

and the Federal Water Pollution Control Act

(33 U.S.C. 1251 et seq.), as amended.

Contracts, other than contracts for

commercial items, of amounts in excess of

$100,000 shall contain a provision that

requires the recipient to agree to comply with

all applicable standards, orders or regulations

issued pursuant to the Clean Air Act (42

U.S.C. 7401 et seq.) and the Federal Water

Pollution Control Act as amended (33 U.S.C.

1251 et seq.). Violations shall be reported to

NASA and the Regional Office of the

Environmental Protection Agency (EPA).

6. Byrd Anti-Lobbying Amendment (31

U.S.C.1352). Contractors who apply or bid for

an award of $100,000 or more shall file the

required certification. Each tier certifies to

the tier above that it will not and has not

used Federal appropriated funds to pay any

person or organization for influencing or

attempting to influence an officer or

employee of any agency, a member of

Congress, officer or employee of Congress, or

an employee of a member of Congress in

connection with obtaining any Federal

contract, grant or any other award covered by

31 U.S.C. 1352. Each tier shall also disclose

any lobbying with non-Federal funds that

takes place in connection with obtaining any

Federal award. Such disclosures are

forwarded from tier to tier up to the

recipient.

7. Debarment and Suspension (Executive

Orders 12549 and 12689). No contract shall

be made to parties listed on the General

Services Administration’s List of Parties

Excluded from Federal Procurement or

Nonprocurement Programs in accordance

with Executive Orders 12549 and 12689,

‘‘Debarment and Suspension.’’ This list

contains the names of parties debarred,

suspended, or otherwise excluded by

agencies, and contractors declared ineligible

under statutory or regulatory authority other

than Executive Order 12549. Contractors

with awards that exceed the small purchase

threshold shall provide the required

certification regarding its exclusion status

and that of its principal employees.

Exhibit B to Part 1274—Reports

1. Individual procurement action report

(NASA Form 507). The grant officer is

responsible for submitting NASA Form 507

for all cooperative agreement actions.

2. Property reporting. As provided in

paragraph (g) of § 1274.923, an annual NASA

Form (NF) 1018, NASA Property in the

Custody of Contractors, will be submitted by

October 31 of each year. Negative annual

reports are required. A final report is

required within 30 days after expiration of

the agreement.

3. Disclosure of lobbying activities (SFLLL).

(a) Grant officers shall provide one copy of

each SF LLL furnished under 14 CFR

1271.110 to the procurement officer for

transmittal to the Director, Analysis Division

(Code HC).

(b) Suspected violations of the statutory

prohibitions implemented by 14 CFR part

1271 shall be reported to the Director,

Contract Management Division (Code HK).

[FR Doc. 00–26365 Filed 10–18–00; 8:45 am]

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