Title: Small Business Innovation Research (SBIR) -- Phase II
Grant General Conditions (5/99)
Date: May 10, 1999
NATIONAL SCIENCE FOUNDATION
ARLINGTON, VA 22230
Small Business Innovation Research (SBIR) -- Phase II
Grant General Conditions
Table of Contents
Article Subject
1. Type of Award
2. Grantee Responsibilities
3. Significant Project Changes
a. Change in Objective or Scope or Transfer of the Research
Effort
b. Change of Principal Investigator
4. Subcontract Requirements
5. Grant Reporting Requirements
6. Payments
7. Rights in Technical Data
8. Copyrightable Material
9. Publications
10. Information Collection
11. Patent Rights
12. Equipment
13. Project Income
14. Travel
15. Audit and Records
16. Price Reduction for Defective Cost or Pricing Data
17. Site Visits
18. Suspension or Termination
19. Termination Review Procedure
20. Nondiscrimination
21. National Security: Classifiable Results Originating Under NSF Grants
22. Animal Welfare
23. Research Involving Recombinant DNA Molecules
24. Clean Air and Water
25. Human Research Subjects
26. Resolution of Conflicting Conditions
OTHER CONSIDERATIONS
27. Liability
28. Activities Abroad
29. Sharing of Findings, Data and Other Research Products
30. Sense of the Congress on Use of Funds
31. Increasing Seat Belt Use in the United States
32. Year 2000 Computer Problem
APPENDIX A
Patent Rights(APRIL, 1992)
1. Type of Award
The grant letter specifies a pre-determined fixed amount of NSF support
for the project described in the referenced grant proposal. NSF
anticipates that the full award amount will be paid without regard to
the actual cost subsequently incurred. However, payment of this amount
is subject to compliance with the award terms and conditions, including
Article 5, Grant Reporting Requirements, Article 6, Payments, Article
16, Price Reduction for Defective Cost or Pricing Data, and NSF's
acceptance of the reports submitted by the Grantee under Article 5. On
the basis of its review of these reports and/or other pertinent
information, NSF reserves the right to modify the payment schedule or
suspend or terminate the award, if NSF determines that such action is
appropriate. This award is not subject to the Federal Commercial Cost
Principles (48 CFR Part 31), except insofar as provided under Article
18, Suspension or Termination and Article 19, Termination Review
Procedure of the General Conditions. If estimated total expenditures
are significantly less than the award amount, NSF reserves the right to
renegotiate the amount and/or duration of this award.
2. Grantee Responsibilities
The Grantee has full responsibility for the conduct of the project or
activity supported under this award and for adherence to the award
conditions. A minimum of one-half of the research and/or analytical
effort must be performed by the Grantee. Although the Grantee is
encouraged to seek the advice and opinion of the Foundation on special
problems that may arise, such advice does not diminish the Grantee's
responsibility for making sound scientific and administrative judgments
and should not imply that the responsibility for operating decisions has
shifted to the Foundation. The Grantee is responsible for notifying NSF
about (1) any allegation of scientific misconduct that it concludes has
substance and requires an investigation in accordance with NSF
misconduct regulations published at 45 CFR 689, and (2) any significant
problems relating to the scientific, technical, administrative or
financial aspects of the grant.
3. Significant Project Changes
The Grantee is required to notify NSF in writing and obtain appropriate
approvals whenever there are significant changes in the project or its
direction as set forth below:
a. Change in Objectives or Scope or Transfer of the Project Effort. No
change in the phenomenon or phenomena under study or the objectives of
the project stated in the proposal or agreed upon modifications thereto
or transfer of the project effort may be undertaken without the written
approval of NSF. NSF approval of such changes will be by an amendment
to the grant signed by the NSF Grants Officer.
b. Absence or Change of Principal Investigator. If a named Principal
Investigator or Project Director (PI/PD) plans to or becomes aware that
he or she will (1) devote substantially less effort to the work than
anticipated in the approved proposal, (2) sever his or her connection
with the Grantee organization, or (3) be absent for a continuous period
of three months or more, or otherwise relinquish active direction of the
project, he or she shall advise in writing the SBIR program officer and
the Grantee's Authorized Organizational Representative. Such changes
are subject to NSF approval or other appropriate action including
termination.
4. Subcontract Requirements
Any proposed subcontract over $5,000, other than those identified in the
approved budget, must be forwarded to the NSF Grants Officer for
approval. The proposed subcontract must be approved prior to its
issuance. See also Article 2, Grantee Responsibilities, regarding the
minimum amount of effort required to be completed by the Grantee.
5. Grant Reporting Requirements
a. General. Payment of the grant amount is conditioned upon the
Grantee's acceptance and compliance with the award terms and conditions
which include expending the approximate person-months proposed,
submission of required reports to NSF and NSF's acceptance of the
reports. The results of the Grantee's efforts under this grant are to
be documented in the form of progress reports (3-5 pages) submitted
semiannually and a final report. The progress reports and the final
report should be submitted via the electronic project reporting system
in Fastlane. The NSF Fastlane system may be accessed at
http://www.fastlane.nsf.gov/ The SBIR Phase II Report Cover Page
http://www.nsf.gov/pubs/1999/nsf9957/Attach/Attach-I.htm must be
submitted by mail at the same time as the progress reports and the final
report are submitted electronically to the SBIR program officer. The
progress reports and the final report must be submitted to the SBIR
program officer for review and acceptance. In instances where a report
is considered unacceptable, the SBIR program officer will provide the
Grantee with a written explanation for nonacceptance.
b. Progress Reports. Progress reports will detail: Participants,
Activities and Findings, Publications and Products, and Contributions.
The PI should also include milestone progress, problems encountered and
identification of equipment purchased. Progress reports are due no
later than 30 days after the end of the respective semiannual progress
period.
c. Final Report. The Phase II final report should utilize the same
format set forth for progress reports followed by: a summary of the
research carried out over the entire duration of the project; the extent
to which the stated Phase II objectives were met (including any
commercial prototype products, processes or devices that were produced);
identified markets for the research findings or results obtained;
problems and remaining research objectives; and the potential commercial
applications of the research findings. The Phase II final report is due
no later than 90 days after the expiration of the award. The awardee
shall also provide, within 90 days following the expiration of the
award, any unique reports or other end products specified in the award
(e.g., special cost-sharing reports), including report requirements set
forth in any NSF brochure, guide, solicitation, etc., referenced in the
award as being directly related to either the award or administration of
this award.
d. Commercialization Report. In addition to the above reports, a
commercialization report is required to be submitted to the SBIR program
officer are due no later than 90 days after the expiration of the award.
The commercialization report will cover the amount and type of
continuing investment obtained to pursue commercialization and any
products, sales, royalties, patents, spin-offs attributable to the SBIR
project, as well as any changes in the company's employment levels. The
NSF SBIR Program Officer will provide instructions on the specific
content and the format, which will be required.
6. Payments
Unless otherwise stated in the grant letter, payments will be made by
NSF as follows: Twenty -five percent (25%) advance payment will be made
at the time of the award, twenty percent (20%) upon acceptance by NSF of
each satisfactory semiannual report (assumes a 24 month award duration),
and the remainder (15%) upon acceptance by NSF of a satisfactory final
report as described in Article 5 above and in the SBIR Program
Solicitation. Request for initial advance payments should be made
within 30 days of the date of the award, and must be made using an NSF
SBIR Award Request for Initial Payment form. Any interest earned on
advance payments may be retained by the grantee and used to further
project objectives. Payments will be made by the Foundation on the
basis of submission and acceptance of the semiannual and final reports.
Failure to submit an acceptable and timely report will result in
withholding of payment and may be grounds for suspension or termination
of the award.
7. Rights in Technical Data
The Grantee may retain rights in technical data, including software
developed under this grant, except that the Government shall have the
right to use such data for Governmental purposes. The Final Technical
Report delivered under this grant, including technical data, may be made
available to the public by the Government, except for that portion of
the report containing technical data properly identified and marked as
set forth below. To the extent permitted by law, the Government will
not release properly marked technical data, such as data relating to an
invention or software, outside the Government, except for evaluation
purposes, for a period of four years from the expiration of the Phase II
grant or of the Phase I grant, when no Phase II award is made, without
approval of the Grantee. The Grantee must properly identify such data
and set it off on a separate page in any submission to the Foundation.
Such data must be clearly labeled as proprietary and marked with a
legend similar to the following:
"The following is information which (name of Grantee) requests not be
released to persons outside the Government, except for purposes of
evaluation, for a period of four years from the expiration date of Grant
No. (the NSF grant number) or the expiration date of a follow-on Phase
II grant if awarded, whichever is later."
In addition to the rights vested in the Government to use such technical
data during the four year period mentioned above, the Government shall
retain a royalty free, irrevocable, world-wide license to use the data
after the conclusion of the four year period whether or not the Grantee
has sought or obtained patent protection or claimed copyright
protection.
8. Copyrightable Material
a. Subject writing means any material that:
1. is or may be copyrightable under Title 17 of the United States
Code; and
2. is produced by the Grantee or its employees in the performance
of work under this grant.
Subject writings include such items as reports, books, journal articles,
software, databases, sound recordings, video tapes, and video discs.
b. Copyright Ownership, Government License. Except as otherwise
specified in the grant or by this paragraph, the Grantee may own or
permit others to own copyright in all subject writings. The Grantee
agrees that if it or anyone else does own copyright in a subject
writing, the Federal government will have a non-exclusive,
nontransferable, irrevocable, royalty-free license to exercise or have
exercised for or on behalf of the United States throughout the world all
the exclusive rights provided by copyright which rights will be subject
to Article 7, Rights in Technical Data. Such license, however, will not
include the right to sell copies or photo records of the copyrighted
works to the public.
c. Grantee Action to Protect Government Interests. The Grantee agrees
to acquire, through written agreement or an employment relationship, the
ability to comply with the requirements of the preceding paragraphs and,
in particular, to acquire the ability to convey rights in a subject
writing to a foreign participant if directed by the Foundation under the
previous paragraph. The Grantee further agrees that any transfer of
copyright or any other rights to a subject writing, by it or anyone whom
it has allowed to own such rights, will be made subject to the
requirements of this article.
9. Publications
a. Acknowledgment of Support. The Grantee is responsible for assuring
that an acknowledgment of NSF support will appear in any publication of
any material based on or developed under this project, in the following
terms:
"This material is based upon work supported by the National Science
Foundation under Grant No. (NSF grant number)."
b. Disclaimer. The Grantee is responsible for assuring that every
publication of material based on or developed under this grant, except
scientific articles or papers appearing in scientific, technical or
professional journals, contains 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 Science Foundation."
c. Copies for NSF. The Grantee is responsible for assuring that two
copies of every publication of material based on or developed under this
grant, clearly labeled with the grant number and other appropriate
identifying information, are sent to the cognizant NSF Program Officer
promptly after publication.
d. Metric System. Grantees are encouraged to use the metric system of
weights and measures in all reports and publications resulting from this
NSF grant.
10. Information Collection
Information collection activities performed under this grant are the
responsibility of the Grantee, and NSF support of the project does not
constitute NSF approval of the survey design, questionnaire content, or
information collection procedures. The Grantee shall not represent to
respondents that such information is being collected for or in
association with the National Science Foundation or any other Government
agency without the specific written approval of such information
collection plan or device by the Foundation. However, this requirement
is not intended to preclude mention of NSF support of the project in
response to an inquiry or acknowledgment of such support in any
publication of this information.
11. Patent Rights
Unless otherwise provided in the grant letter, the Patent Rights clause
included in Appendix A applies. The Grantee will include that clause in
all subawards for experimental, developmental, or research activities.
12. Equipment
a. Purchase. No item of equipment over $5,000, other than items
identified in the approved budget, may be purchased without the advance
written approval of the SBIR Program Officer.
b. Title. Title to equipment purchased with grant funds shall pass
directly to the Government from the vendor. Within 30 days from the
date of delivery by the vendor, the Grantee shall furnish the Foundation
Property Management Officer with a full description of the equipment,
including model and serial number, acquisition cost (including
transportation charges), and the date of acquisition. The Grantee shall
be responsible for property control over Government equipment until such
time as it is disposed of as directed by the Government.
c. Disposition. Upon expiration of the grant, the Grantee shall
provide the SBIR Program Officer with a listing of all equipment
purchased with grant funds. This listing should include the acquisition
cost and current estimated value of each piece of equipment as well as a
recommendation from the Grantee regarding appropriate disposition. If
the Grantee wishes to retain the property for continued use, the Grantee
should also include a statement of the intended use as well as an
indication of whether it is willing to purchase the equipment from the
Government. Upon consideration of information provided by the Grantee
and other relevant information, the Government will determine
appropriate disposition of the equipment and will provide the Grantee
with disposition instructions.
13. Project Income
a. Definition. Project income refers to that portion of gross
revenues, including royalties, received by or accruing to the Grantee
through activities undertaken under this grant, whether received during
or after the grant period. It includes, but is not limited to, proceeds
from the sale, licensing, lease, rental, or other arrangement for the
use, release, dissemination, or other disposal of copyrightable or
noncopyrightable materials, properties, and inventions developed or
produced under the grant. Income also includes any interest earned on
all such revenues and proceeds.
b. Standard Treatment. Unless otherwise specified in the grant,
project income received or accruing to the Grantee during the period of
this grant shall be retained and added to the funds committed to the
project by the Foundation and used to further project objectives. The
Grantee shall have no obligation to the Foundation with respect to (1)
license fees and royalties for copyrighted material, patents, patent
applications, trademarks, and inventions or (2) project income received
after the period of this grant.
c. Records Retention. The Grantee is required to retain appropriate
financial and other records relating to project income earned during the
grant period and for three years beyond the end of the grant period.
14. Travel
a. Use of U.S.-Flag Air Carriers
1. The Comptroller General of the United States, by Decision
B-138942 of June 17, 1975, as amended March 31, 1981, provided
guidelines for implementation of Section 5 of the International Air
Transportation Fair Competitive Practices Act of 1974 (49
U.S.C.1517).
2. Any air transportation to, from, between, or within a country
other than the United States of persons or property, the expense of
which will be assisted by NSF funding, must be performed by a
U.S.-flag air carrier if service provided by such a carrier is
available.
3. For the purposes of this requirement, U.S.-flag air carrier
service is considered available even though:
(a) comparable or a different kind of service can be provided
at less cost by a foreign-flag air carrier;
(b) foreign-flag air carrier service is preferred by, or is
more convenient for, the Foundation or traveler; or
(c) service by a foreign-flag air carrier can be paid for in
excess foreign currency.
4. The following rules apply unless their application would
result in the first or last leg of travel from or to the United
States being performed by a foreign-flag air carrier:
(a) A U.S.-flag air carrier shall be used to destination or,
in the absence of direct or through service, to the farthest
interchange point on a usually traveled route.
(b) If a U.S.-flag air carrier does not serve an origin or
interchange point, a foreign-flag air carrier shall be used
only to the nearest interchange point on a usually traveled
route to connect with a U.S. flag air carrier.
(c) If a U.S.-flag air carrier involuntarily reroutes the
traveler via a foreign-flag air carrier, the foreign-flag air
carrier may be used notwithstanding the availability of
alternative U.S.-flag air carrier service.
b. Use of Foreign-Flag Air Carriers.
1. Travel To and From the United States. Use of a foreign-flag
air carrier is permissible if:
(a) the airport abroad is the traveler's origin or destination
airport, and use of U.S.-flag air carrier service would extend
the time in a travel status by at least 24 hours more than
travel by a foreign-flag air carrier; or
(b) the airport abroad is an interchange point, and use of
U.S.-flag air carrier service would require the traveler to
wait 6 hours or more to make connections at that point, or
would extend the time in a travel status by at least 6 hours
more than travel by a foreign-flag air carrier.
2. Travel Between Points Outside the United States. Use of a
foreign-flag air carrier is permissible if:
(a) travel by a foreign-flag air carrier would eliminate two
or more aircraft changes en route;
(b) travel by a U.S.-flag air carrier would extend the time in
a travel status by at least 6 hours more than travel by a
foreign-flag air carrier; or
(c) the travel is not part of the trip to or from the United
States, and use of a U.S.-flag air carrier would extend the
time in a travel status by at least 6 hours more than travel
by a foreign-flag air carrier.
3. Short Distance Travel. For all short distance travel,
regardless of origin and destination, use of a foreign-flag air
carrier is permissible if the elapsed travel time on a scheduled
flight from origin to destination airport by a foreign-flag air
carrier is 3 hours or less and service by a U.S.-flag air carrier
would double the travel time.
15. Audit and Records
a. Cost or Pricing Data. The Grants Officer or other duly authorized
representatives of the National Science Foundation shall have the right
to examine and audit all of the Grantee's books, records, documents and
other data, regardless of form (e.g., machine readable media such as
disk, tape, etc.) or type (e.g., data bases, applications software,
database management software, utilities, etc.) including computations
and projections, related to proposing, negotiating, pricing, or
performing the grant or amendment, in order to evaluate the accuracy,
completeness, and currency of the cost and pricing data. The right of
examination shall extend to all documents necessary to permit adequate
evaluation of the cost or pricing data submitted, along with the
computations and projections used.
b. Technical Performance and Reports. The Grants Officer or other
duly authorized representatives of the National Science Foundation shall
have to right to examine and audit books, records, other documents, and
supporting materials, for the purpose of evaluating technical
performance and reports under this award.
c. Availability. The Grantee shall make available at its office at
all reasonable times all books, documents, papers, and records pertinent
to this award including the materials described in paragraphs a. and b.
above, and the financial and other records relating to project income
required by Article 13, for examination, audit, or reproduction, until 3
years after final payment under this grant. In addition,
1. If this grant is completely or partially terminated, the
records relating to the work terminated shall be made available
for 3 years after any resulting final termination settlement;
and
2. Records that relate to appeals, litigation, or the
settlement of claims arising out of the performance of the
project shall be retained until such audits, appeals,
litigation, or claims have been disposed of.
d. The Grantee may transfer computer data in machine readable form
from one reliable computer medium to another. The Grantee's computer
data retention and transfer procedures shall maintain the integrity,
reliability, and security of the original data. The Grantee's choice of
form or type of materials described in paragraphs a. and b. above of
this article affects neither the Grantee's obligations nor the
Government's rights under this article.
e. Notwithstanding any other provision in this Article, the Director
of the National Science Foundation and the Comptroller General of the
United States, or any of their duly authorized representatives, shall
have access to any pertinent books, documents, papers, and records of
the Grantee organization, to make audits, examinations, excerpts and
transcripts. Further, any negotiated contract in excess of the
simplified acquisition threshold (currently $100,000) made by the
Grantee shall include a provision to the effect that the Grantee, the
Director of the National Science Foundation, the Comptroller General of
the United States, or any of their duly authorized representatives shall
have access to pertinent records for similar purposes.
f. The Grantee shall insert a clause containing all the terms of this
article, including this paragraph f. in all subcontracts under this
grant that exceed the simplified acquisition threshold (currently
$100,000), altering the clause only as necessary to identify properly
the contracting parties and the Grants Officer under the NSF grant.
(See Article 4, which requires NSF approval to subcontract.)
16. Price Reduction for Defective Cost or Pricing Data
a. If any price, including profit, negotiated in connection with this
grant, was increased by any significant amount because (1) the Grantee
or its subcontractor furnished cost or pricing data that were not
complete, accurate and current as certified in its Certificate of
Current Cost or Pricing Data, (2) a subcontractor or prospective
subcontractor furnished the Grantee cost or pricing data that were not
complete, accurate and current as certified in its Certificate of
Current Cost or Pricing Data, or (3) any of these parties furnish data
of any description that were not accurate, the price or cost shall be
reduced accordingly and the grant shall be amended to reflect the
reduction.
b. Any reduction in the grant price under paragraph a. above due to
defective data from a prospective subcontractor that was not
subsequently awarded the subcontract shall be limited to the amount,
plus applicable overhead and profit markup, by which (1) the actual
subcontract or (2) the actual cost to the Grantee, if there was not
subcontract, was less than the prospective subcontract cost estimate
submitted by the Grantee; provided, that the actual subcontract price
was not itself affected by defective cost or pricing data.
c. 1. If the Grants Officer determines under paragraph a. of this
clause that a price or cost reduction should be made, the Grantee agrees
not to raise the following matters as a defense:
(a) The Grantee or subcontractor was a sole source supplier or otherwise
was in a superior bargaining position and thus the price of the grant
would not have been modified even if accurate, complete and current cost
or pricing data had been submitted.
(b) The Grants Officer should have known that the cost or pricing data
in issue were defective even though
the Grantee or subcontractor took no affirmative action to bring the
character of the data to the attention of the Grants Officer.
(c) The Grantee or subcontractor did not submit a Certificate
of Current Cost or Pricing Data.
2. Except as prohibited by c.3. of this article, an offset in an
amount determined appropriate by the Grants Officer based upon the
facts shall be allowed against the amount of a grant price
reduction if-
(a) The Grantee certifies to the Grants Officer that, to the
best of the Grantee's knowledge and belief, the Grantee is
entitled to the offset in the amount requested; and
(b) The Grantee proves that the cost or pricing data (or price
of amendment) and that the data was not submitted before such
date.
3. An offset shall not be allowed if-
(a) The understated data was known by the Grantee to be
understated when the Certificate of Current Cost or Pricing
Data was signed; or
(b) The Government proves that the facts demonstrate that the
grant price would not have been increased in the amount to be
offset even if the available data had been submitted before
the date of the agreement on price.
d. If any reduction in the grant price under this article reduces the
price for which payment was made prior to the date of the amendment
reflecting the price reduction, the Grantee shall be liable to and shall
pay the United States at the time such overpayment is repaid simple
interest on the amount of such overpayment to be computed from the
date(s) of overpayment to the Grantee to the date the Government is
repaid by the Grantee at the applicable underpayment rate effective for
each quarter prescribed by the Secretary of the Treasury under 26 U.S.C.
6621(a)(2).
17. Site Visits
The Foundation, through authorized representatives, has the right, at
all reasonable times, to make site visits to review project
accomplishments and management control systems and to provide such
technical assistance as may be required. If any site visit is made by
the Foundation on the premises of the Grantee or a subcontractor under
the grant, the Grantee shall provide and shall require its
subcontractors to provide all reasonable facilities and assistance for
the safety and convenience of the Government representatives in the
performance of their duties. All site visits and evaluations shall be
performed in such a manner as will not unduly delay the work.
18. Suspension or Termination
a. The grant may be suspended or terminated in whole or in part, when
the Foundation believes that the Grantee has materially failed to comply
with the terms and conditions of the grant, including failure to provide
satisfactory reports as required under Article 5, Grant Reporting
Requirements, or when the Foundation has other reasonable cause, or for
any reason by mutual agreement between the Foundation and the Grantee
upon the request of either party, or when the parties cannot mutually
agree to a termination.
b. Normally, action by the Foundation to suspend or terminate a grant
will be taken only after the Grantee has been informed by the Foundation
of any deficiency on its part and given an opportunity to correct it;
but the Foundation may immediately suspend or terminate the grant
without notice when it believes such action is reasonable to protect the
interests of the Government.
c. No costs incurred during a suspension period or after the effective
date of a termination will be allowable, except those costs which, in
the opinion of the Foundation, the Grantee could not reasonably avoid or
eliminate, or which were otherwise authorized by the suspension or
termination notice, provided such costs would otherwise be allowable
under the terms of the grant and 48 CFR Part 31.
d. Within 30 days of the termination date, the Grantee will furnish a
summary of progress under the grant and an itemized accounting of costs
incurred prior to the termination date or pursuant to c., above. Final
allowable costs under a termination settlement shall be in accordance
with the terms of the grant, including this article, and the commercial
cost principles contained at 48 CFR Part 31, giving due consideration to
the progress under the grant. In no event will the total of NSF payments
under a terminated grant exceed the grant amount, or the NSF pro rata
share when cost sharing was anticipated, whichever is less.
e. A notice of termination other than by mutual agreement and/or the
final settlement amount may be subject to review pursuant to Article 19,
Termination Review Procedure.
19. Termination Review Procedure
a. A request for review of a notice of termination should be addressed
to the Director, Division of Grants and Agreements, National Science
Foundation, 4201 Wilson Boulevard, Arlington VA, 22230. It must be
postmarked no later than 30 days after the date of the letter notifying
the awardee of the termination or settlement.
b. The request for review must contain a full statement of the awardee's
position and the pertinent facts and reasons in support of such
position.
c. Review of a notice of termination or settlement will be conducted in
accordance with GPM Section 923.
d. Pending resolution of the request for review, the notice of
termination shall remain in effect.
20. Nondiscrimination
a. The grant and any program assisted thereby are subject to the
provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d), the regulations issued pursuant thereto by the Foundation (45
CFR 611), and the Assurance of Compliance which the Grantee has filed
with the Foundation. No person on the basis of race, color, national
origin, or handicap shall be excluded from participation in, be denied
benefits of, or otherwise be subjected to discrimination under the
grant. In addition, if the project involves an education activity or
program, as defined by Title IX of the Education Amendments of 1972 (20
U.S.C. 1681-1686), no person on the basis of sex shall be excluded from
participation in the project. Further, by acceptance of the grant, the
Grantee assures the Foundation that it will comply with Section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. 794) and the Foundation's
implementing regulations (45 CFR 605).
b. The Grantee shall obtain from each organization that applies to be
or serves as a subrecipient, subgrantee or subcontractor under the grant
(for other than the provision of commercially available supplies,
materials, equipment, or general support services) an Assurance of
Compliance with Title VI of the Civil Rights Act of 1964. Civil Rights
Act assurances may be filed with the Grantee in one of two ways: (1) by
written notification that the appropriate Assurance of Compliance form
has been executed and filed either with the Foundation or the U.S.
Department of Health and Human Services; or (2) by executing and filing
with the Grantee an NSF Assurance of Compliance Form. The Grantee shall
obtain assurances pursuant to Section 504 of the Rehabilitation Act of
1973, as amended, from subrecipients by incorporating into the
subagreement a provision that acceptance of the subagreement constitutes
assurance.
c. The Grantee agrees to comply with the Age Discrimination Act of
1975 (42 U.S.C. 6101 et seq.) as implemented by the Department of Health
and Human Service regulations at 45 CFR 90 and the regulations of the
Foundation at 45 CFR 617. In the event the Grantee passes on NSF
financial assistance to subrecipients, this provision shall apply to the
subrecipients, and the instrument under which the Federal financial
assistance is passed to the subrecipient shall contain a provision
identical to this provision.
21. National Security: Classifiable Results
Originating Under NSF Grants
a. NSF does not have original classification authority and does not
normally support classified projects. It therefore does not expect that
results of NSF-supported research projects will be classifiable, except
in very rare instances.
b. Executive Order 12958 [60 Federal Register 19825 (1995)] states
that basic scientific research information not clearly related to the
national security may not be classified [Section 1.8(b)]. Nevertheless,
some information concerning (among other things) scientific,
technological or economic matters relating to the national security or
cryptology may require classification [Sections 1.5(c) & (e)].
c. There may therefore be cases when an NSF awardee originates
information during the course of an NSF-supported project that the
awardee believes requires classification under Executive Order 12958
[Section 1.4(e)].
d. In such a case, the awardee has the responsibility to promptly:
1. submit the information directly to the U.S. Government
agency with appropriate subject matter interest and
classification authority, or, if uncertain which agency should
receive the information, to the Director of the Information
Security Oversight Office, General Services Administration;
2. protect the information as though it were classified
until the awardee is informed that the information does not
require classification, but not longer than 30 days after
receipt by the agency with subject matter interest or by the
General Services Administration; and
3. notify the cognizant NSF Program Officer.
e. The Executive Order requires the agency with appropriate subject
matter interest and classification authority to decide within 30 days
whether to classify the material. If it determines the information to
require classification, the awardee shall cooperate with that agency,
NSF, or other appropriate agencies in securing all related project notes
and papers.
f. If the information is determined to require classification, the
performing organization may wish or need to discontinue the project.
22. Animal Welfare
Any awardee performing research on vertebrate animals shall comply with
the Animal Welfare Act [7 U.S.C. 2131 et seq] and the regulations
promulgated thereunder by the Secretary of Agriculture [9 CFR, 1.1-4.11]
pertaining to the humane care, handling, and treatment of vertebrate
animals held or used for research, teaching or other activities
supported by Federal awards. The awardee is expected to ensure that the
guidelines described in the National Academy of Science (NAS)
Publication, "Guide for the Care and Use of Laboratory Animals" (1996)
are followed and to comply with the Public Health Service Policy and
Government Principles Regarding the Care and Use of Animals (included as
Appendix D to the NAS Guide).
NOTE--The awardee may request registration of its facility and a current
listing of licensed dealers from the Regional Office of the Animal and
Plant Health Inspection Service (APHIS), USDA, for the region in which
its research facility is located. The location of the appropriate APHIS
Regional Office, as well as information concerning this program, may be
obtained by contacting the Senior Staff Officer, Animal Care Staff,
USDA/APHIS, Federal Center Building, Hyattsville, MD 20782.
23. Research Involving Recombinant DNA Molecules
If this award supports research involving recombinant DNA molecules, the
awardee agrees to comply with the requirements of GPM Section 712.
24. Clean Air and Water
(Applicable only if the grant 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.
7413(c)(1)) or the Clean Water Act (33 U.S.C. 1318) and is listed by
EPA, or the grant is not otherwise exempt.)
The grantee agrees as follows:
a. To comply with all the requirements of section 114 of the Clean Air
Act (42 U.S.C. 7414) and section 308 of the Clean Water Act (33 U.S.C.
1318), relating to inspection, monitoring, entry, reports, and
information, as well as other requirements specified in section 114 and
section 308 of the Air Act and the Water Act, respectively, and all
regulations and guidelines issued thereunder before the award of the
grant.
b. That no portion of the work required by the grant will be performed
in a facility listed on the Environmental Protection Agency List of
Violating Facilities on the date that the grant was awarded unless and
until EPA eliminates the name of such facility or facilities from such
listing.
c. To use its best efforts to comply with clean air standards and
clean water standards at the facility in which the grant is being
performed.
d. To insert the substance of the provisions of this article into any
nonexempt subcontract.
25. Human Research Subjects
The Grantee is responsible for the protection of the rights and welfare
of any human subjects involved in research, development and related
activities supported by this grant. The Grantee agrees to comply with
the NSF regulation, entitled, "Protection of Human Subjects, 45 CFR
690."
26. Resolution of Conflicting Conditions
Should there be any inconsistency between any special conditions
contained in the grant and these Grant General Conditions, the special
conditions in the grant shall control.
Should there be any inconsistency between these Grant General
Conditions, any special conditions contained in the grant, and any NSF
guides, brochures, etc., cited or included by reference in the grant,
the matter should be referred to the NSF Grants Officer for guidance.
OTHER CONSIDERATIONS
27. Liability
The Foundation cannot assume any liability for accidents, illnesses, or
claims arising out of any work supported by a grant or for unauthorized
use of patented or copyrighted materials. The Grantee institution is
advised to take such steps as may be deemed necessary to insure or
protect itself, its employees and its property.
28. Activities Abroad
The Grantee should assure that grant activities carried on outside the
United States are coordinated as necessary with appropriate Government
authorities and that appropriate licenses, permits or approvals are
obtained prior to undertaking proposed activities. The Foundation does
not assume responsibility for Grantee compliance with the laws and
regulations of the country in which the work is to be conducted.
29. Sharing of Findings, Data, and Other Research Products
a. NSF expects significant findings from research and education
activities it supports to be promptly submitted for publication, with
authorship that accurately reflects the contributions of those involved.
It expects investigators to share with other researchers, at no more
than incremental cost and within a reasonable time, the data, samples,
physical collections, and other supporting materials created or gathered
in the course of the work. It also encourages Grantees to share software
and inventions or otherwise act to make the innovations they embody
widely useful and usable.
b. Adjustments and, where essential, exceptions may be allowed to
safeguard the rights of individuals and subjects, the validity of
results, or the integrity of collections or to accommodate legitimate
interests of investigators.
30. Sense of the Congress on Use of Funds
Recent Acts making appropriations to NSF provide "It is the sense of the
Congress that, to the greatest extent practicable, all equipment and
products purchased with funds made available in this Act should be
American-made" and require the Foundation to notify awardees of that
statement.
31. Increasing Seat Belt Use in the United States
In accordance with Executive Order 13043, Increasing Seat Belt Use in
the United States, dated April 16, 1997, "grantees are encouraged to
adopt and enforce on-the-job seat belt policies and programs for their
employees when operating company-owned, rented, or personally owned
vehicles."
32. Year 2000 Computer Problem
In accordance with Important Notice No. 120 dated June 27, 1997,
Subject: Year 2000 Computer Problem, NSF awardees are reminded of their
responsibility to take appropriate actions to ensure that the NSF
activity being supported is not adversely affected by the Year 2000
problem. Potentially affected items include: computer systems,
databases, and equipment. The National Science Foundation should be
notified if an awardee concludes that the Year 2000 will have a
significant impact on its ability to carry out an NSF funded activity.
Information concerning Year 2000 activities can be found on the NSF web
site at http://www.nsf.gov/oirm/y2k/start.htm.
Appendix A
PATENT RIGHTS (APRIL, 1992)
a. Definitions.
1. INVENTION means any invention or discovery which is or
may be patentable or otherwise protectable under title 35 of
the U.S.C., to 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. SUBJECT INVENTION means any invention of the grantee
conceived or first actually reduced to practice in the
performance of work under this grant, provided that in the
case of a variety of plant, the date of determination (as
defined in section 41(d)) must also occur during the period of
grant performance.
3. 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.
4. MADE when used in relation to any invention means the
conception or first actual reduction to practice of such
invention.
5. NON-PROFIT 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 non-profit scientific or
educational organization qualified under a State non-profit
organization statute.
b. Allocation of Principal Rights. The grantee may retain the
entire right, title, and interest throughout the world to each
subject invention subject to the provisions of this Patent Rights
clause and 35 U.S.C. §203. With respect to any subject invention
in which the grantee retains title, the Federal Government shall
have a non-exclusive, nontransferable, irrevocable, paid-up license
to practice or have practiced for or on behalf of the U.S. the
subject invention throughout the world. If the grant indicates it
is subject to an identified international agreement or treaty, the
National Science Foundation (NSF) also has the right to direct the
grantee to convey to any foreign participant such patent rights to
subject inventions as are required to comply with that agreement or
treaty.
c. Invention Disclosure, Election of Title and Filing of Patent
Applications by Grantee.
1. The grantee will disclose each subject invention to NSF
within two months after the inventor discloses it in writing
to grantee personnel responsible for the administration of
patent matters. The disclosure to NSF shall be in the form of
a written report and shall identify the grant under which the
invention was made and the inventor(s). It shall be
sufficiently complete in technical detail to convey a clear
understanding of the nature, purpose, operation, and, to the
extent known, 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 NSF, the grantee will promptly
notify NSF of the acceptance of any manuscript describing the
invention for publication or of any on sale or public use
planned by the grantee.
2. The grantee will elect in writing whether or not to
retain title to any such invention by notifying NSF within two
years of disclosure to NSF. 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 U.S., the period for election of title may be
shortened by NSF to a date that is no more than 60 days prior
to the end of the statutory period.
3. The grantee will file its initial patent application on
an 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 U.S. after a publication, on sale, or public
use. The grantee will file patent applications in additional
countries or international patent offices within either ten
months of the corresponding initial patent application, or six
months from the date when permission is granted by the
Commissioner of Patents and Trademarks to file foreign patent
applications when such filing has been prohibited by a Secrecy
Order.
4. Requests for extension of the time for disclosure to NSF,
election, and filing under subparagraphs 1., 2., and 3. may,
at the discretion of NSF, be granted.
d. Conditions When the Government May Obtain Title. The grantee
will convey to NSF, upon written request, title to any subject
invention:
1. if the grantee fails to disclose or elect the subject
invention within the times specified in paragraph c. above, or
elects not to retain title; provided that NSF may only request
title within 60 days after learning of the failure of the
grantee to disclose or elect within the specified times;
2. in those countries in which the grantee fails to file
patent applications within the times specified in paragraph c.
above, but prior to its receipt of the written request of NSF,
the grantee shall continue to retain title in that country; or
3. in any country in which the grantee decides not to
continue the prosecution of any application for, to pay the
maintenance fees on, or defend in a reexamination or
opposition proceeding on, a patent on a subject invention.
e. Minimum Rights to Grantee.
1. The grantee will retain a non-exclusive royalty-free
license throughout the world in each subject invention to
which the Government obtains title, except if the grantee
fails to disclose the subject invention within the times
specified in paragraph c. above. The grantee's license
extends to its domestic subsidiaries and affiliates, if any,
within the corporate structure of which the grantee is a party
and includes the right to grant sublicenses of the same scope
to the extent the grantee was legally obligated to do so at
the time the grant was awarded. The license is transferable
only with the approval of NSF except when transferred to the
successor of that part of the grantee's business to which the
invention pertains.
2. The grantee's domestic license may be revoked or modified
by NSF 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 applicable provisions at 37 CFR §404. This license will
not be revoked in that field of use or the geographical areas
in which the grantee 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 discretion of NSF to the extent
the grantee, 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, NSF
will furnish the grantee a written notice of its intention to
revoke or modify the license, and the grantee will be allowed
thirty days (or such other time as may be authorized by NSF
for good cause shown by the grantee) after the notice to show
cause why the license should not be revoked or modified. The
grantee has the right to appeal, in accordance with applicable
regulations in 37 CFR §404 concerning the licensing of
Government-owned inventions, any decision concerning the
revocation or modification of its license.
f. Grantee Action to Protect Government's Interest.
1. The grantee agrees to execute or to have executed and
promptly deliver to NSF all instruments necessary to: (i)
establish or confirm the rights the Government has throughout
the world in those subject inventions for which the grantee
retains title; and (ii) convey title to NSF when requested
under paragraph d. above, and to enable the Government to
obtain patent protection throughout the world in that subject
invention.
2. The grantee agrees to require, by written agreement, its
employees, other than clerical and non-technical employees, to
disclose promptly in writing to personnel identified as
responsible for the administration of patent matters and in a
format suggested by the grantee each subject invention made
under this grant in order that the grantee can comply with the
disclosure provisions of paragraph c. above, and to execute
all papers necessary to file patent applications on subject
inventions and to establish the Government's rights in the
subject inventions. The disclosure format should require, as
a minimum, the information requested by paragraph c.1. above.
The grantee shall instruct such employees through the 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 grantee will notify NSF of any decision not to
continue 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 grantee agrees to include, within the specification
of any U.S. patent application and any patent issuing thereon
covering a subject invention, the following statement: "This
invention was made with Government support under (identify the
grant) awarded by the National Science Foundation. The
Government has certain rights in this invention."
5. The grantee or its representative will complete, execute
and forward to NSF a confirmation of a License to the U.S.
Government within two months of filing any domestic or foreign
patent application.
6. The grantee or its representative will forward to NSF a
copy of any U.S. patent covering a subject invention within
two months after it is issued.
g. Subcontracts.
1. The grantee will include this Patent Rights clause,
suitably modified to identify the parties, in all
subcontracts, regardless of tier, for experimental,
developmental or research work. The subcontractor will retain
all rights provided for the grantee in this Patent Rights
clause, and the grantee will not, as part of the consideration
for awarding the subcontract, obtain rights in the
subcontractors' subject inventions.
2. In the case of subcontracts, at any tier, when the prime
award by NSF was a contract (but not a grant or cooperative
agreement), NSF, subcontractor, and contractor agree that the
mutual obligations of the parties created by this Patent
Rights clause constitute a contract between the subcontractor
and the Foundation with respect to those matters covered by
this Patent Rights clause.
h. Reporting on Utilization of Subject Inventions. The grantee
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
grantee 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 grantee and
such other data and information as NSF may reasonably specify. The
grantee also agrees to provide additional reports in connection
with any march-in proceeding undertaken by NSF in accordance with
paragraph j. of this
Patent Rights clause. As required by 35 U.S.C. §202(c)(5), NSF agrees
it will not disclose such information to persons outside the Government
without the permission of the grantee.
i. Preference for United States Industry. Notwithstanding any
other provision of this Patent Rights clause, the grantee agrees
that neither it nor any assignee will grant to any person the
exclusive right to use or sell any subject invention in the U.S.
unless such person agrees that any products embodying the subject
invention or produced through the use of the subject invention will
be manufactured substantially in the U.S. However, in individual
cases, the requirement for such an agreement may be waived by NSF
upon a showing by the grantee or its 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 U.S. or that under the circumstances domestic
manufacture is not commercially feasible.
j. March-in Rights. The grantee agrees that with respect to any
subject invention in which it has acquired title, NSF has the right
in accordance with procedures at 37 CFR §401.6 and NSF regulations
at 45 CFR §650.13 to require the grantee, an assignee or exclusive
licensee of a subject invention to grant a non-exclusive, 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 grantee, assignee, or exclusive
licensee refuses such a request, NSF has the right to grant such a
license itself if NSF determines that:
1. such action is necessary because the grantee 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 grantee,
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 grantee, assignee, or
licensee; or
4. such action is necessary because the agreement required
by paragraph i. of this Patent Rights clause has not been
obtained or waived or because a licensee of the exclusive
right to use or sell any subject invention in the U.S. is in
breach of such agreement.
k. Special Provisions for Grants with Non-profit Organizations.
If the grantee is a non-profit organization, it agrees that:
1. rights to a subject invention in the U.S. may not be
assigned without the approval of NSF, except where such
assignment is made to an organization which has as one of its
primary functions the management of inventions, provided that
such assignee will be subject to the same provisions as the
grantee;
2. the grantee will share royalties collected on a subject
invention with the inventor, including Federal employee
co-inventors (when NSF 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
grantee 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 or engineering 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 preference to a
small business firm if the grantee determines that the small
business firm has a plan or proposal for marketing the
invention which, if executed, is equally likely to bring the
invention to practical application as any plans or proposals
from applicants that are not small business firms; provided
that the grantee 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 grantee.
However, the grantee agrees that the Secretary of Commerce may
review the grantee's licensing program and decisions regarding
small business applicants, and the grantee will negotiate
changes to its licensing policies, procedures or practices
with the Secretary when the Secretary's review discloses that
the grantee could take reasonable steps to implement more
effectively the requirements of this paragraph k.4.
l. Communications. All communications required by this
Patent Rights clause should be sent to:
Patent Assistant
Office of the General Counsel
National Science Foundation
4201 Wilson Boulevard
Arlington, VA 22230
[END OF CLAUSE]
SBIR-II (5/99)
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