NON-DOE SPONSORED RESEARCH OVERVIEW

1. NON-DOE SPONSORED RESEARCH OVERVIEW Sponsored Projects Office Jeff Weiner July 2008

2. Major Topics • Sponsored Research Laws and Regulations • Basic WFO Processes and Policies • Solicitations • Key Issues

3. WFO AT LBNL • FY 07 -$140 mill for all non DOE sponsored research $121 mill was WFO • FY 07 over 1300 active awards, over 900 proposal actions

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

5. Laws That Give DOE Authority to PerformWork for Others(continued) Given these restrictions, how can one Government agency -- say, the Department of Defense – turn to another -- the Department of Energy – to supply required services or supplies? The answer is provided in a number of public laws that authorize interagency procurement, including DOE’s Work for Others program. It is important to understand that DOE has conflicting goals in WFO. HQ Program Mangers may encourage WFO while the DOE administrative managers only see rules, regulations and compliance.

6. Laws That Authorize DOE to PerformWork for Others Economy Act of 1932 -- Authorizes an agency to place orders for goods and services, subject to availability, with another Government agency when the head of the ordering agency determines that it is in the best interest of the Government to do so, and that the ordered goods and services cannot be provided by contract as conveniently or cheaply by a commercial enterprise. Atomic Energy Act of 1954 -- Authorizes research and development and training to be done for other Federal agencies (OFA) and for nonfederal entities. It only permits such activities if private facilities are inadequate. Therefore, this Act supports the idea of uniqueness of facilities and non-competition with the private sector.

7. Other Government Directives --Acquisition Regulations That Affect Work for Others FAR 35.107, Federally Funded Research and Development Center -- Establishes Government-wide policies for the establishment, use, review, and termination of federally funded research and development centers, including those managed by the Department of Energy’s management and operating (M&O) contractors. It contains a restriction on Federally Funded Research and Development centers competing for business with private sector companies. FAR 6.002 -- Prohibits agencies from contracting for supplies or services from another agency for the purpose of avoiding competition requirements. This is to avoid 100% “pass throughs”.

8. DOE Orders • DOE 481.1C - Work for Others (Non-Department of Energy Funded Work) -- Establishes DOE policy, procedures, and responsibilities for authorizing and administering non-DOE-funded work.

9. Pitfalls, Traps and ‘Watch-Out-Fors’ Advance Payments (nonfederal sponsor) • work cannot begin until advance payments received • universities and small business may have problems • We can be creative but need early partnership with Division and SPO

10. Pitfalls, Traps and ‘Watch-Out-Fors’ (continued) Publication Restrictions • LBNL must have freedom to publish • sponsors may restrict publication • Director approval needed • Need to read the solicitation and award Indemnification • LBNL cannot indemnify • sponsor must indemnify LBNL and government

11. Pitfalls, Traps and ‘Watch-Out-Fors’ (continued) Guaranteed Performance • work is “best efforts” • full cost reimbursement RFPs (Request for Proposals) • LBNL cannot be a prime contractor or subcontractor on federal RFPs – Sandia case

12. Have SPO Review the Solicitation Before Investing Your Time and Effort in a Proposal let SPO Review the Solicitation to determine LBNL’s Eligibility Three basic types of solicitations: 1. U.S. Govt. – Request for Proposals (RFP’s) 2. U.S. Govt. – Other Solicitations (BAA’s, RA’s) 3. Non-Federal Solicitations

13. U.S. Government Request for Proposals (RFP’s) • LBNL and all DOE Labs are prohibited by DOE from being a proposer, subcontractor, or team member in a proposal to a U.S. Govt. RFP. • This became DOE policy in 1997. • Wipe from your memory banks the prior policy which allowed Labs to be subcontractors as long as we offered our services to all interested proposers, it is no longer valid.

14. U.S. Government Other Solicitations These include Broad Agency Announcements (BAA’s), Research Announcements (RA’s), and others. SPO will review the following factors: • Are the technical requirements stated broadly and are innovative solutions being sought to address the technical requirements. • Are the evaluations and selection being based on a merit or peer review system where price is not a significant evaluated review factor. • Is the Lab an eligible applicant under the solicitation? • Does the Sponsor pay the full cost of projects, if not then we should not propose unless we have written permission to use other funds to support this work. If all of the above answers are affirmative then the Lab can submit an application or be a subcontractor to another eligible applicant.

15. Non-Federal Solicitations It doesn’t matter what the Sponsor calls the solicitation, SPO will review it to determine the Lab’s eligibility. • Is the Lab an eligible applicant under the solicitation? Can we be the applicant or only a subcontractor? • How is the technical requirement stated? Very detailed like an RFP which will lead all applicants into submitting very similar proposals which then makes it a prohibited direct competition. Generally stated like a BAA which would allows each applicant to come in with their own innovative solution to address the requirement.

16. Non-Federal Solicitations • Are the evaluations and selection being based on a merit or peer review system where price is not a significant evaluated review factor. • Does the Sponsor pay the full cost of projects, if not then we should not propose unless we have written permission to use other funds to support this work. In all cases, DOE is the ultimate decision maker on whether we can submit or not. SPO will seek DOE’s determination if we are not sure what the correct position is. SPO will advocate for LBNL’s ability to submit an application if we think it is appropriate, for example CEC RFP’s.

17. Authoritiesfor Sponsored Research at LBNL • Only Sponsored Projects Office (SPO) has authority to submit proposals and accept awards on behalf of LBNL • Delegation from UC through Lab Director • PI does not have authority to submit proposals or accept awards • SPO website: www.lbl.gov/workplace/CFO/SPO

18. Work for Others Contract between LBNL or DOE and a Federal or Nonfederal sponsor for contract R&D to be performed by LBNL • a unique Laboratory capability • work must fit within mission of LBNL • cannot compete with private sector • all costs are recovered from the sponsor • requires DOE approval

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

20. Types of WFO Agreements • Interagency Agreements between DOE and another Federal agency • Nonfederal WFO Agreements LBNL has delegation to sign approved agreements. Generally we use 5 Exhibits.

21. Funding Process: Other Federal Agencies Sponsor sends a funding document to LBNL, including citation of statutory authority for work and a written statement that: By entering into this agreement it is in compliance with the Federal Acquisition Regulation (FAR) 6.002, and to their knowledge, the work requested will not place LBNL in direct competition with the domestic private sector LBNL sends the funding document to DOE for them to sign and accept funding. * Once DOE accepts the funding, LBNL has the authority from the sponsor to begin work, open accounts, incur costs up to the funded amount, and invoice the sponsor for those costs.

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

23. Financial Considerations for All Awards • All work is done at full cost recovery (all Lab direct and indirect costs) • Most sponsors also pay Federal Administrative Charge (FAC) of 3% • Some types of sponsors get FAC waived by DOE (small businesses, Universities, non profits institutions, state and local governments and class waivers , e.g. NIH DHS) • Costs must be charged to correct awards • Costs cannot exceed contract value, cash on hand or period of performance

24. Intellectual Property Considerations • Generally, nonfederal sponsors get title to Lab inventions • Exceptions are granted under certain DOE approved situations • We are different than UC campuses • Generally, Lab gets title to inventions under Federal sponsors