This part establishes uniform policies for the award and administration of other transaction agreements for research, development, and demonstration projects awarded under the Department of Energy's “Additional Authorities” at section 646(g) of the Department of Energy Organization Act, Public Law 95-91, as amended (42 U.S.C. 7256(g)).

For purposes of this part, An other transaction (OT) agreement means any agreement, including technology investment agreement (TIA) between the Department of Energy and/or the National Nuclear Security Administration and a non-Federal entity for the principal purpose of carrying out an research, development, and demonstration project for which the use of a Federal procurement contract, grant, or cooperative agreement is not feasible or appropriate. The OT agreement must comply with the regulations set forth in this part. Additional requirements for TIAs are set forth in subpart D of this part.

(a)(1) An officer of the Department of Energy (DOE) who has been appointed by the President with the advice and consent of the Senate and who has been delegated the authority from the Secretary must approve the use of other transaction (OT) authority and may perform other functions of the Secretary as set forth under 42 U.S.C. 7256(g). This delegated authority may not be redelegated.

(2) In addition, the cognizant Senior Procurement Executive (SPE), as defined by 41 U.S.C. 1702(c), (or designee) must concur on the award of any OT agreement.

(3) The Agreements Officer (AO) is the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer OT agreements.

(b) Deviation from the requirements in paragraph (a) of this section is not permitted.

(a) Deviation. A deviation from this part is defined as the issuance or use of a policy, procedure, solicitation provision, article, method, or practice of conducting actions of any kind at any stage of the award process or administration period that is inconsistent with this part. Deviations may affect one or more than one other transaction (OT) agreements.

(b) Request for deviation. Requests for deviation(s) shall be submitted by the Agreements Officer, meaning the cognizant warranted Department of Energy or National Nuclear Security Administration official authorized to execute and administer OT agreements, to the cognizant Senior Procurement Executive, as defined by 41 U.S.C. 1702(c), for approval. Requests shall cite the specific section from which it is desired to deviate, shall set forth the nature of the proposed deviation(s), and shall give the reasons for the action requested.

The Nonprocurement debarment and suspension requirements in 2 CFR part 180, as adopted and supplemented by 2 CFR part 901, are applicable to all other transaction agreements.

(a) Cost share is required as follows:

(1) In accordance with 42 U.S.C. 7256(g)(1), to the maximum extent practicable, the awardee must provide at least half of the costs of the project;

(2) In accordance with cost share requirements in section 988 of Energy Policy Act of 2005 (EPAct 2005), Public Law 109-58, as amended (42 U.S.C. 16352), for funded research, development, demonstration, or commercial application activities; and

(3) In accordance with any other applicable statutory cost share requirements.

(b) All awardee cost share or contributions, including cash and third-party in-kind contributions, must meet all of the following criteria:

(1) Are verifiable from the awardee's records;

(2) Are not included as contributions for any other Federal award;

(3) Are necessary and reasonable for accomplishment of the award or project objectives;

(4) Are allowable under the appropriate cost principles;

(5) Are not paid or provided by the Federal Government under another Federal award (Federal funds or property), except where the Federal statute authorizing a program specifically provides that Federal funds or property made available for such program can be applied to cost sharing requirements of other Federal programs or awards;

(6) Are not revenues or royalties from the prospective operation of an activity beyond the time considered in the award;

(7) Are not proceeds from the prospective sale of an asset of an activity;

(8) Are valued:

(i) In accordance with the appropriate cost principles;

(ii) Using the usual accounting policies of the awardee; and

(iii) Not to exceed the fair market value (of donated property, equipment, or other capital assets) or the fair rental charge (of leased land, space, or equipment);

(9) Are provided for in the budget approved by Department of Energy (DOE); and

(10) Conform to other provisions of this part, as applicable.

(c) DOE may reduce or eliminate the cost share requirement imposed by 42 U.S.C. 7256(g)(1) where the Agreements Officer (AO), meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, determines the cost sharing is impracticable in a given case, unless there is a statutory requirement for cost sharing that applies to the particular award. When section 988 of EPAct 2005 applies to an award, the AO must obtain the required approval of the elimination or reduction of the required cost share in accordance with the section 988 of EPAct 2005.

The Agreements Officer, meaning the cognizant warranted Department of Energy or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, may not issue an OT agreement if any awardee, subawardees or participant is to receive fee or profit for the research, development, and demonstration (RD&D) efforts. This requirement extends to all awardees and performers funded under the project, including any subawards for substantive program performance, but it does not preclude participants' or subawardees' payment of reasonable fee or profit when making purchases from suppliers of goods (e.g., supplies and equipment) or services needed to carry out the RD&D.

(a) Department of Energy (DOE) awards other transaction (OT) agreements using non-procurement, non-Federal financial assistance competitive processes in a merit-based selection process:

(1) In every case where required by statute; and

(2) To the maximum extent feasible, in all other cases. If it is not feasible to use competitive process, the reason for not using a competitive process must be documented by the Agreements Officer (AO), meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer OT agreements.

(b) The AO must document any restrictions on awardee eligibility.

(a) For all other transaction (OT) agreements, trade secrets and commercial or financial information that would be protected from disclosure requirements of the Freedom of Information Act (FOIA) (codified at 5 U.S.C. 552) if obtained from a person other than a Federal agency:

(1) For a period of five years after the date on which the information is developed; or

(2) For up to thirty years after the date on which the information is developed, if the Secretary or delegee of the Secretary determines that the nature of the technology under the transaction, including nuclear technology, could reasonably require an extended period of protection from disclosure to reach commercialization.

(b) As provided in 42 U.S.C. 7256(g)(1) incorporating certain provisions of 10 U.S.C. 4021,disclosure,and,under; and

(2) The type of information is among the following types that are exempt:

(i) Proposals, proposal abstracts, and supporting documents; and

(ii) Business plans and technical information submitted on a confidential basis.

(c) If proposers desire to protect business plans and technical information for five years from FOIA disclosure requirements, they must mark them with a legend identifying them as documents submitted on a confidential basis. After the five-year period, information may be protected for longer periods if it meets any of the criteria in 5 U.S.C. 552(b) (as implemented by the DOE in 10 CFR part 1004) for exemption from FOIA disclosure requirements.