Available payment methods include:

(a) Reimbursement. Under this method, participants request reimbursement for costs incurred during a particular time period. The Department of Energy (DOE) reimburses the participant by electronic funds transfer after approval of the request by the Agreements Officer, meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, or designee. This payment method is used for expenditure-based awards.

(b) Advance payments. Under this method, participants request advance payment based upon projections of the cash needs for the project, or for large purchases. Predetermined payment schedules may be used when the timing of the participant's needs to disburse funds can be predicted in advance with sufficient accuracy to ensure the funds are used in accordance with project objectives and schedules.

(c) Payments based on payable milestones. Under this method payments made according to a schedule established for the award that is based on accomplishment of predetermined, well-defined, observable, and verifiable measures of technical progress, outcomes, or other payable milestones. A fixed-support award must use this payment method; however, this does not preclude the use of an initial advance payment if there is no alternative to meeting immediate cash needs. Payments based on payable milestones is the preferred method of payment for an expenditure-based award if well-defined outcomes can be identified.

Department of Energy must approve any changes in project plans that may result in a need for additional Federal funding to be provided to the other transaction agreement.

Pre-award costs may be reimbursed only with the specific approval of the Agreements Officer (AO), meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction agreements. All pre-award costs are incurred at the applicant's and/or awardee's risk. DOE is not obligated to reimburse the costs if, for any reason, the applicant does not receive an award, the award is less than anticipated and inadequate to cover the costs, or the AO did not provide prior approval for the reimbursement of the pre-award costs.

The Agreements Officer, meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, must confer with program officials and assigned intellectual property counsel to develop an overall strategy for intellectual property taking into account inventions and data that may result from the project and future needs the Government may have for rights in them. The strategy should address program mission requirements and any special circumstances that would support modification of standard intellectual property provisions, and should include considerations such as the extent of the awardee's contribution to the development of the technology; expected Government or commercial use of the technology; the need to provide equitable treatment among consortium or team members; and the need for DOE to engage non-traditional Government contractors with unique capabilities.

(a) For provisions regarding data rights for any awardee entity type, the data rights requirements at 2 CFR 910.362(d), Rights in data-general rule, normally apply when the Government is to be provided with unlimited rights in data and should be used as a starting point for such other transaction (OT) agreements. Here, the “Rights in Data—General” provision in appendix A to subpart D of 10 CFR part 910 typically applies. However, if the awardee is to receive special data protection, the data requirements at 2 CFR 910.362(e), Rights in data—programs covered under special protected data statutes normally apply and should be used as a starting point for such OT agreements. Here, the “Rights in Data—Programs Covered Under Special Protected Data Statutes” provision in appendix A to subpart D of 10 CFR part 910 typically applies. Consistent with 42 U.S.C. 7256(g)(5), data protection can be provided typically for a period of up to 5 years but may be extended up to a total of 30 years in particular circumstances.

(b) However, while maintaining compliance with 42 U.S.C. 7256(g), the Agreements Officer, meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer OT agreements, may negotiate data rights requirements that vary from those listed above. Use of or modifications to the standard rights in data provisions must be approved by cognizant DOE intellectual property counsel.

(a) When negotiating rights in inventions, the Agreements Officer (AO), meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, should negotiate terms that represent an appropriate balance between the Government's interests and the awardee's interests. Bayh-Dole (35 U.S.C. 200-212) patent rights provisions implemented via 37 CFR 401.14 as modified by the DOE (see e.g., U.S. Competitiveness provision and Department of Energy Determination of Exceptional Circumstances Under the Bayh-Dole Act to Further Promote Domestic Manufacture of DOE Science and Energy Technologies) should be used as a starting point for all awardee entity types. However, the AO may negotiate rights that vary from those in modified 37 CFR 401.14. For example, Bayh-Dole March-in-Rights found in modified 37 CFR 401.14 and concerning actions that the Government may take to obtain the right to use subject inventions if the awardee fails to take effective steps to achieve practical application of the subject inventions within a reasonable time, may be modified or removed entirely. Use of or modifications to the standard rights provisions must be approved by cognizant DOE intellectual property counsel.

(b) For subawards, the OT should typically indicate that sub-awardees will get title to inventions they make but alternative terms could be included such as those specifying that sub-awardees' invention rights are to be negotiated between awardee and sub-awardee or some other disposition of invention rights.

(a) Foreign access to technology. Consistent with the objective of enhancing national security and United States competitiveness by increasing the public's reliance on United States commercial technology, the Agreements Officer, meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, must include provisions in an OT agreement that addresses foreign access to technology developed under the OT agreement. Provisions must be included in an OT that provide, at a minimum, that any transfer of the technology must be consistent with the U.S. export control laws, regulations and the Department of Commerce Export Regulation at Chapter VII, Subchapter C, Title 15 of the CFR (15 CFR parts 730-774), as applicable.

(b) DOE research and technology security policies. All DOE research and technology security policies apply to OTs unless the activities being funded are outside the scope of the policies or otherwise exempted from the policies.

(c) U.S. manufacturing and competitiveness. Notice should be included in the OT indicating that products embodying any invention or produced through the use of any invention are subject to the U.S. Competitiveness terms outlined in modified 37 CFR 401.14. These terms may not be modified or waived without approval from cognizant DOE intellectual property counsel.

(a) Awardees must keep records related to the agreement for a period of three years after submission of the final financial status report for an expenditure-based award or final program performance report for a fixed-support award, with the following exceptions:

(1) The awardees must keep records longer than three years after submission of the final financial status report if the records relate to an audit, claim, or dispute that begins but does not reach its conclusion within the 3-year period. In that case, the awardees must keep the records until the matter is resolved and final action taken.

(2) Records for any real property or equipment acquired with project funds under the agreement must be kept for three years after final disposition.

(b) [Reserved]

(a) The Department of Energy (DOE), through the Agreements Officer (AO), meaning the cognizant warranted DOE or National Nuclear Security Administration official authorized to execute and administer other transaction agreements, has an unfettered right of timely access to any documents, papers, or other records of the awardee which are pertinent to the Federal award, in order to inspect and make copies, audits, examinations, excerpts, and/or transcripts. The right also includes timely and reasonable access to the awardee's personnel for the purpose of interview and discussion related to such documents. The exercise of this authority is at the discretion of the AO.

(b) Inspectors General and the Comptroller General of the United States may have independent legal authority to access to records or personnel related to the Federal award. Consistent with the independent legal authority, recipients should follow the laws and regulations applicable to requests for access to records or personnel from Inspectors General and the Comptroller General of the United States.

(a) Noncompliance. If an awardee materially fails to comply with the articles or terms and conditions of an agreement, whether stated in a Federal statute, regulation, assurance, application, plan, or the notice of award, the Agreements Officer (AO), meaning the cognizant warranted Department of Energy (DOE) or National Nuclear Security Administration official authorized to execute and administer other transaction (OT) agreements, may take one or more of the following actions, as appropriate:

(1) Temporarily withhold cash payments pending correction of the deficiency by the awardee or more severe enforcement action by the AO.

(2) Disallow or deny both the use of funds and any applicable cost share for all or part of the cost of the activity or action not in compliance.

(3) Wholly or partly suspend or terminate the current award.

(4) Withhold further awards for the project or program.

(5) Apply other remedies that may be legally available.

(b) Termination. The OT agreement must include an article that indicates that the Government may terminate the agreement in whole or in part if the awardee materially fails to comply with the articles or terms and conditions of an agreement, whether stated in a Federal statute, regulation, assurance, application, plan, or the notice of award fails to comply with the articles and requirements of the award. An agreement may include an article providing for the termination of the agreement, in whole or in part, by mutual agreement or as negotiated by the parties. In the case of proposed partial termination of the agreement, if the remaining portion of the award will not accomplish the purposes for which the agreement was made, the award may be terminated in its entirety.

(1) Unless otherwise negotiated, for terminations of an expenditure-based award, DOE's maximum liability is the lesser of:

(i) DOE's share of allowable costs incurred up to the date of termination, or

(ii) The amount of DOE funds obligated to the award.

(2) Unless otherwise negotiated, for terminations of a fixed-support based award, DOE shall pay the awardee for the last fully completed milestone.

(3) Notwithstanding paragraphs (b)(1) and (2) of this section, if the awardee initiates termination and the award includes milestone payments, the Government has no obligation to pay the awardee beyond the last completed and paid milestone.

(c) Right to appeal. (1) The awardee has the right to appeal to the cognizant Senior Procurement Executive (SPE), as defined by 41 U.S.C. 1702(c), to review only the following actions:

(i) A DOE determination that the awardee has failed to comply with the applicable requirements of the award;

(ii) Termination of an award, in whole or in part, by DOE;

(iii) The application by DOE of an indirect cost rate; and

(iv) DOE disallowance of costs.

(2) In reviewing appeals authorized under paragraph (c)(1) of this section, the SPE is bound by the applicable law, statutes, and rules, including the requirements of this part, and by the articles or terms and conditions of the award.

(3) The decision of the SPE shall be the final decision of DOE.