DOE M 481.1-1, Reimbursable Work for Non-Federal Sponsors Process Manual

DOE M 481.1-1 Approved: 9-30-96 Sunset Review: 9-30-98 Expires: 9-30-00 U.S. DEPARTMENT OF ENERGY Office of Organization and Management Distribution: Initiated By: All Departmental Elements Office of Organization and Management CANCELE D DOE M 481.1-1 i (and ii) 9-30-96 WORK FOR OTHERS (NON-DEPARTMENT OF ENERGY FUNDED WORK) 1. PURPOSE. This Manual provides detailed requirements to supplement DOE O 481.1, WORK FOR OTHERS (NON-DEPARTMENT OF ENERGY FUNDED WORK), dated September 30, 1996, which establishes requirements for the performance of work for non- DOE entities by DOE/contractor personnel and/or the utilization of DOE facilities that is not directly funded by DOE appropriations. 2. CANCELLATION. This Manual describes the process to be used in performing Work for Others (WFO) projects for non-federal sponsors. It is composed of five sections, followed by four attachments to aid in conducting and managing WFO projects. 3. REFERENCE. DOE O 481.1, WORK FOR OTHERS (NON-DEPARTMENT OF ENERGY FUNDED WORK). 4. CONTACT. Questions concerning this Manual should be addressed to the Office of Organization and Management at (202)586-6799. BY ORDER OF THE SECRETARY OF ENERGY: ARCHER L. DURHAM Assistant Secretary for Human Resources and Administration CANCELE D DOE M 481.1-1 iii (and iv) 9-30-96 TABLE OF CONTENTS 1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. PROCESS DESCRIPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. DELEGATION OF AUTHORITY TO CONTRACTORS . . . . . . . . . . . . . . . . . . . . . . 3 4. DOE STANDARD WORK FOR OTHERS AGREEMENT . . . . . . . . . . . . . . . . . . . . . 4 5. METRICS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ATTACHMENT 1: NON-FEDERAL WORK FOR OTHERS FLOWCHART . . . . . . . 5 ATTACHMENT 2: U. S. DEPARTMENT OF ENERGY WORK FOR OTHERS AGREEMENT WITH NON-FEDERAL SPONSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ATTACHMENT 3: WORK FOR NON-FEDERAL SPONSORS PROCESS CHECKLIST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 ATTACHMENT 4: MANAGEMENT AND ADMINISTRATION PLAN OUTLINE EXAMPLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 CANCELE D DOE M 481.1-1 1 9-30-96 REIMBURSABLE WORK FOR NON-FEDERAL SPONSORS PROCESS MANUAL 1. INTRODUCTION. The process described below covers all Work for Others (WFO) projects performed for non- federal sponsors. This process will be implemented under DOE O 481.1, WORK FOR OTHERS (NON-DEPARTMENT OF ENERGY FUNDED WORK), dated 9/30/96. As defined by DOE O 481.1, WFO is the performance of work for non-DOE entities by DOE/contractor personnel and/or the use of DOE facilities that is not directly funded by DOE appropriations. In developing this process, several related processes were reviewed. During that review, it was determined that existing processing times for reimbursable work for non-federal sponsors could be reduced substantially. Elements of previous reviews and streamlining efforts were adopted to improve efficiency.

The primary process improvements adopted for this mechanism include: C delegation of specific authorities to the contractor; C a pre-approved modular agreement; C a more flexible policy on advance payment, employing the alternative approaches of the Cooperative Research and Development Agreement (CRADA) process; C a policy, on a pilot basis, for waiving added factor and depreciation on all reimbursable work for small businesses and non-profit organizations; C revised administrative provisions to implement the existing class patent waiver for non- federal sponsors; C a parallel review process to speed review by all elements concerned. The process has been developed to promote consistency among sites performing work for non-federal sponsors. Specific procedures for accomplishing work for non-federal sponsors are to be negotiated between each contractor and the responsible Operations Office and set forth in a Management and Administration Plan approved by the Head of the Field Element. Operations Offices and contractors have the responsibility for implementing this process in ways that best accommodate the unique aspects of their operations; this should allow contractors to be more responsive to requests for assistance from non-federal sponsors. It should be noted that this non-federal reimbursable work process is subject to further development and modification. In keeping with the principles of total quality management, a review of the manual will be initiated within 6 months to determine if additional streamlining or other changes are needed. The delegation of authority to contractors permits actions on behalf of the Department within specific, well-defined guidelines that have been developed by the Department. No contractor CANCELE D 2 DOE M 481.1-1 9-30-96 may exercise discretionary authority or make individual value judgments on behalf of the Department. This manual includes: C a general description of the process, including a process flow chart and checklist; C procedures used to delegate authority to contractors to execute agreements with non- federal sponsors; C the DOE Standard Work for Others Agreement for non-federal sponsors; and C a description of the metrics to be used to measure the process. 2. PROCESS DESCRIPTION. A generic process flow chart for "Reimbursable Work for Non-Federal Sponsors" is in Attachment 1. The process includes the following. Stage 1: Development and programmatic review of the proposal package by the management and operating (M&O) contractor and sponsor. Stage 2: Contractor (and DOE, if appropriate) review and approval of proposal package. Stage 3: Parallel sponsor review of the proposal package and agreement provisions. Stage 4: Execution of agreement by contractor and sponsor. Stage 5: Transmittal of funds from the sponsor. Stage 6: Performance of work. Stage 7: Agreement closeout. The process begins with preliminary discussions between the non-federal sponsor and DOE contractor personnel about the work requested by the sponsor. The contractor and sponsor develop a proposal that must include the following information. C Description of the work requested, including deliverables. C Schedule and milestones. C Proposed reporting requirements. C Total cost estimate.

Appropriate contractor management personnel shall review the preliminary proposal for compliance with WFO requirements and identification of any programmatic or administrative issues. The contractor obtains internal management approval of the proposal, and prepares a tailored agreement that incorporates the statement of work (SOW) and cost estimate. The contractor must use the articles in the DOE Standard Work for Others Agreement (see Attachment 2). Any proposed deviation from the DOE-approved terms and conditions in this agreement will require DOE review and approval. CANCELE D DOE M 481.1-1 3 9-30-96 The contractor provides an advance copy of the tailored agreement to the sponsor for review of the terms and conditions. This review should correspond with the contractor's internal review and completion of the Work for Non-Federal Sponsors Process Checklist (see Attachment 3). Advance communication of the agreement should reduce the time needed for negotiation and implementation. An attached disclaimer shall state that advance submission or review of the proposed agreement does not constitute a commitment by either party. The contractor will ensure that the requirements of the Work for Non-Federal Sponsors Process Checklist are met, and that appropriate approvals are secured. Completion of the Process Checklist ensures that critical issues have been addressed and that appropriate actions have been or will be taken. The Process Checklist provides guidelines for determining when Operations Office or Headquarters notification and/or concurrence is required. The contractor's internal review must include sufficient documentation of the basis for the decision reached for each item on the Process Checklist. If any of the items on the Process Checklist require DOE approval, the contractor will send the proposal package to the appropriate DOE Element(s). This should be done concurrently with the contractor's internal review and negotiation of the agreement. The contractor and non-federal sponsor negotiate the terms of the agreement using either the pre-approved or nonstandard articles as appropriate. Any nonstandard articles must be sent to the Operations Office for approval. In negotiating any changes to the agreement, the contractor shall not represent itself as speaking on behalf of the DOE. Upon completion of the negotiations, the contractor prepares the final agreement, which is signed by the contractor and sponsor. All necessary DOE approvals must be secured prior to executing the final agreement, except for such approvals as are documented as pending and upon which the execution of the final agreement is made contingent. Once the agreement is signed by both parties, the contractor sends the Operations Office a copy and a signed statement certifying that this project has been executed within established procedures and guidelines. The Operations Office should also be sent copies of any amendments to the original agreement. Reporting requirements for these projects shall, at a minimum, comply with DOE O 481.1. When the final agreement is signed (executed), the sponsor provides the approved funding to the contractor consistent with DOE policy. The Operations Office then sets up a reimbursable account, certifies the availability of funding for obligation, and authorizes the contractor to begin work. Work shall begin within 2 working days of contractor receipt of funding.

On completion of the work, the sponsor will certify its completion and the WFO agreement is closed out financially. The contractor will, as appropriate, request additional funding to close out the project or return unused funds to the sponsor. The contractor will send a closeout report to DOE. CANCELE D 4 DOE M 481.1-1 9-30-96 3. DELEGATION OF AUTHORITY TO CONTRACTORS. Paragraph 5n(3) of DOE O 481.1 allows the Heads of Field Elements to delegate the authority to make the determinations, sign and execute DOE Standard Work for Others Agreements (also called "bilateral sales contracts") to the contractor. This delegation permits the contractor to act within specific, well-defined guidelines that have been developed by the Department and must be followed by the contractor. Under no circumstances should the delegation permit the contractor to exercise general discretionary authority or make individual value judgements on behalf of the Department. The authority may be delegated only when DOE-approved terms and conditions are used, and there is written DOE approval of a Management and Administration Plan (see Attachment 4), which describes the contractor's management and administrative procedures to execute and administer such agreements. This plan will detail the system agreed to by DOE and the contractor for making the determinations required in DOE O 481.1, paragraph 4a. The plan must also provide for periodic review of contractor policies and procedures and implementation of those procedures. The delegation of authority may be initiated by a contractor's request for the delegation and submission of a Management and Administration Plan by the contractor or initiated by the Head of the Field Element by requesting a Management and Administration Plan from the contractor. 4. DOE STANDARD WORK FOR OTHERS AGREEMENT. Attachment 2 is the DOE Standard Work for Others Agreement for use with non-federal parties. It is intended to be the starting point for all reimbursable work discussions with non- federal parties, with only those modifications required to comply with individual contracts. This document has been developed to accommodate non-federal parties while protecting the interests of the government. As indicated above, any changes to the document, such as use of other language, must be approved by the Operations Office. Modification or deletion of existing articles or the inclusion of additional articles is permitted with the approval of the cognizant Field Office, provided the change does not conflict with the pre-approved articles. The format for presenting provisions of the work agreement will include the following. C The standard language of the article. C Pre-approved optional provisions. C Rationale/guidance for the article. 5. METRICS. CANCELE D DOE M 481.1-1 5 9-30-96 The following is an initial set of process measures for determining the effectiveness of each funded WFO agreement. The following set is not all-inclusive and may include additional measures. 1. Date of review of proposal package documentation by laboratory/facility business office. 2. Date proposal package sent to the sponsor. 3. Date of receipt of sponsor response to proposal package. 4. Date agreement executed. 5. Date of technical completion of project. 6. Date of final closeout of agreement. Procedures for customer surveys, reporting, and self-assessment should be included in the contractor's Management and Administration Plan. CANCELE D

DOE M 481.1-1 Attachment 1 9-30-96 Page 5 (and 6) ATTACHMENT 1 NON FEDERAL WORK FOR OTHERS FLOWCHART CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 7 ATTACHMENT 2 U. S. DEPARTMENT OF ENERGY WORK FOR OTHERS AGREEMENT WITH NON-FEDERAL SPONSORS _________________________________________________________________ The following is a Work for Others (WFO) Agreement for use with non-federal sponsors, which includes articles that must be used in the agreement. Optional information that may be used in lieu of or in addition to the required articles is identified. These articles have been approved by the Department of Energy (DOE). Requests for exceptions to approved articles must be approved by the DOE Operations Office. Additional articles may also be used with the approval of the cognizant DOE Operations Office. Deletions of articles not applicable to a particular Statement of Work may be made with approval of the cognizant DOE Operations Office. _________________________________________________________________ Language: Work for Others Agreement No. ____________ Between (Insert here the name of the U. S. Department of Energy Contractor) Operating Under Prime Contract No. ____________ for the U. S. Department of Energy And (Insert here the name of the non-Federal Sponsor) The obligations of the above-identified DOE Contractor shall apply to any successor in interest to said Contractor continuing the operation of the DOE facility involved in this Work for Others Agreement. Guidance: The agreement number, the names of the parties, and the M&O contract number must be included in the agreement immediately preceding Article I. CANCELE D Attachment 2 DOE M 481.1-1 Page 8 9-30-96 List of Articles Article I Parties to the Agreement Article II Term of the Agreement Article III Costs Article IV Funding and Payment Article V Source of Funds Article VI Property Article VII Publication Matters Article VIII Legal Notice Article IX Disclaimer Article X General Indemnity Article XI Product Liability Indemnity Article XII Intellectual Property Indemnity - Limited Article XIII Notice and Assistance Regarding Patent and Copyright Infringement Article XIV Patent Rights - Use of Facilities (Class Waiver) Article XV Rights in Technical Data - Use of Facility Article XVI Assignment Article XVII Similar or Identical Services Article XVIII Export Control Article XIX Termination Article XX Alternate Dispute Resolution (Optional) CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 9 GENERAL TERMS AND CONDITIONS Article I. PARTIES TO THE AGREEMENT Language: The U. S. Department of Energy Contractor, (insert here the name of the Department of Energy Contractor), hereinafter referred to as the "Contractor," has been requested by (insert here the name of the non-Federal Sponsor), hereinafter referred to as the "Sponsor," to perform the work set forth in the Statement of Work, attached hereto as Appendix A. It is understood by the Parties that, except for the intellectual property provisions of this Agreement, the Contractor is obligated to comply with the terms and conditions of its M&O contract with the United States Government (hereinafter called the "Government") represented by the United States Department of Energy (hereinafter called the "Department" or "DOE") when providing goods, services, products, processes, materials, or information to the Sponsor under this Agreement. Guidance:

The names of the DOE contractor and the non-federal sponsor must be inserted in this article. There must be a Statement of Work for the agreement. It must include a technical description of the work as well as the identity of the principal investigator. Specific funds, property, personnel, and services to be used must be identified in the Statement of Work. Background rights, if any, that are affected may be addressed in the patent rights article, the rights in technical data article, or in a separate article somewhere within the agreement, or in a separate agreement. Any environmental, safety, and health issues must be dealt with, especially if there are to be any materials, equipment, or other tangible property provided by the sponsor for use at the facility in furtherance of the project. Any proprietary information included in the Statement of Work should be clearly marked as such. The sponsor agrees to provide a nonproprietary description of the Statement of Work for public dissemination.CANCELE D Attachment 2 DOE M 481.1-1 Page 10 9-30-96 Article II. TERM OF THE AGREEMENT Language: The Contractor estimated period of performance for completion of the Statement of Work is ___________ months. The term of this Agreement shall be effective as of the latter date of (1) the date on which it is signed by the last of the Parties thereto, or (2) the date on which it is approved. General Guidance: The term of the agreement shall be provided. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 11 Article III. COSTS Language: A. The Contractor estimated cost for the work to be performed under this Agreement is $_________________. B. The Contractor has no obligation to continue or complete performance of the work at a cost in excess of its estimated cost, including any subsequent amendment. C. The Contractor agrees to provide at least _____days' notice to the Sponsor if the actual cost to complete performance will exceed its estimated cost. Guidance: The Contractor shall determine the cost of the work to be performed under this agreement in accordance with Department policy for costing work it performs for others as set forth in 10 CFR Part 1009. There must be a statement of funding for the agreement, showing the estimated cost for the work as determined by the contractor. There must also be a statement that describes the obligations of the contractor relative to exceeding estimated cost. CANCELE D Attachment 2 DOE M 481.1-1 Page 12 9-30-96 Article IV. FUNDING AND PAYMENT Language: The Sponsor shall provide sufficient funds in advance to reimburse the Contractor for costs to be incurred in performance of the work described in this Agreement, and the Contractor shall have no obligation to perform in the absence of adequate advance funds. If the estimated period of performance exceeds 90 days or the estimated cost exceeds $25,000, the Sponsor may, with the Contractor's approval, advance funds incrementally. In such a case, the Contractor will initially invoice the Sponsor in an amount sufficient to permit the work to proceed for _____ days and thereafter invoice the Sponsor monthly so as to maintain approximately a 90-day period that is funded in advance. Payment shall be made directly to the Contractor. Upon termination or completion, any excess funds shall be refunded by the Contractor to the Sponsor. Guidance:

This provision should be used for most sponsors where the estimated value of the work exceeds $25,000 or the project will last longer than 90 days. If a small business is unable to meet the 90-day requirement, a shorter time period may be negotiated with the sponsor. The above article must be selected, or an alternate article approved by DOE, if one of the following six situations exist. The six situations are all consistent with current DOE policy on requiring advance payments, as delineated in the Department of Energy Accounting Handbook issued October 17, 1995. The Handbook replaced DOE Orders 2200.4-2200.10. 1: If a small business is unable to meet the 90-day requirement, a shorter time period may be negotiated with the sponsor. [This shorter period should be inserted in the required language. If the contractor negotiates a shorter time than the 90-day requirement, the advance provided must ensure that DOE funds are not at risk during performance of the work described in the agreement.] 2: If the contractor performing the work provides the advance funding from award/management fees, royalties, or other corporate funds. [The contractor performing the work may elect to provide the advance funding from award/management fees, royalties, or other corporate funds or other non- appropriated funds. If this option is chosen, the contractor must provide sufficient funding to ensure DOE funds are not used.] 3: When deliveries are from stock-on-hand and will not require the use of current budget resources except to replace the stock. [This option may be used if the proposed agreement does not require expenditure of either DOE or contractor resources.] CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 13 4: When delivery of items or services is without an advance, if permitted by specific law. This covers reimbursable work deliveries without advance payment as directed by specific laws or executive orders. An example is the detail of employees to states and political subdivisions according to 5 U.S.C. 3373 and the detail of employees to international organizations according to 5 U.S.C. 3343. 5: The sponsor establishes an irrevocable trust or escrow account [as the budgetary resource]. The balance in the account must be maintained at a level equivalent to approximately a 90-day advance of funds during the life of this agreement. Accrued costs and commitments of the sponsor shall not exceed the balance in the trust or escrow account plus the payments received from the sponsor. [This provision may be used where it is not feasible for certain sponsors to provide a cash advance under the provisions of Option 1 above. This should be used only for a small or disadvantaged business not in a position to lose interest on advanced funds for an extended period of time.] 6: In specific circumstances when an advance cannot be obtained from state and local governments whose laws prohibit the payment of advances for reimbursable work. In these cases use of the Cost of Work for Others Program under the Departmental Administration Appropriation. CANCELE D Attachment 2 DOE M 481.1-1 Page 14 9-30-96 Article V. SOURCE OF FUNDS The Sponsor hereby warrants and represents that, if the funding it brings to this Agreement has been secured through other agreements, such other agreements do not have any terms and conditions (including intellectual property) that conflict with the terms of this Agreement. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 15

Article VI. PROPERTY Language: Upon termination of this Agreement, property or equipment having a value greater than __________ produced or acquired in conducting the work under this Agreement shall be owned as follows: _____________________________________________________________________ _____________________________________________________________________ __________________________________________________. No Federal funds will be used to purchase property or equipment for this agreement. Property or equipment produced or acquired as part of this Agreement will be accounted for and maintained during the term of the Agreement in the same manner as Department property or equipment. Option: Unless the Parties otherwise agree in writing, all equipment produced or acquired with funds provided by the Sponsor shall be disposed of as instructed by the Sponsor. Guidance: There must be agreement among the parties as to who will retain any property produced or acquired under the Work for Others Agreement. CANCELE D Attachment 2 DOE M 481.1-1 Page 16 9-30-96 Article VII. PUBLICATION MATTERS Language: The publishing Party shall provide the other Party a _____ -day period in which to review and comment on proposed publications that either disclose technical developments and/or research findings generated in the course of this agreement, or identify Proprietary Information (as defined in paragraph 1.B of Article XV). The publishing Party shall not publish or otherwise disclose Proprietary Information identified by the other Party, except as provided by law. Option 1: Either Party may publish Generated Information as defined in Paragraph 1.A of Article XV. The publishing party will provide to the other Party for its review, a copy of the proposed publication 60 days prior to its intended publication. The other Party may request a reasonable delay in publication if the proposed publication contains unprotected patentable information or Proprietary Information provided by either Party. Option 1 Guidance: This option may be appropriate when the sponsor is not interested in commercialization of proprietary information. General Guidance: It is within the discretion of the contractor and the sponsor to determine whether a Publication Matters article is necessary. If there will be no Publication Matters article, this section will be titled [Reserved]. If it is determined that there may be or will be publications covering the work under the agreement, then the article above will normally be used. The pre-publication review process must consider the protection of rights for filing U.S. and foreign patent applications, because any disclosure may restrict filing. Also, should the sponsor want to protect proprietary information brought into the agreement or, where authorized, generated under the agreement as a trade secret, such information should not be disclosed unless agreed to by the sponsor. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 17 Article VIII. LEGAL NOTICE Language: The Parties agree that the following legal notice shall be affixed to each report furnished to the Sponsor under this Agreement and to any report resulting from this Agreement which may be distributed by the Sponsor: (INSERT NOTICE) Guidance: A standard legal disclaimer notice on publications is needed to protect the interests of the contractor and the government. Each contractor currently has its own preapproved publications statement, and this should be used.

CANCELE D Attachment 2 DOE M 481.1-1 Page 18 9-30-96 Article IX. DISCLAIMER Language: THE GOVERNMENT AND THE CONTRACTOR MAKE NO EXPRESS OR IMPLIED WARRANTY AS TO THE CONDITIONS OF THE RESEARCH OR ANY INTELLECTUAL PROPERTY, GENERATED INFORMATION, OR PRODUCT MADE OR DEVELOPED UNDER THIS WORK FOR OTHERS AGREEMENT, OR THE OWNERSHIP, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR RESULTING PRODUCT; THAT THE GOODS, SERVICES, MATERIALS, PRODUCTS, PROCESSES, INFORMATION, OR DATA TO BE FURNISHED HEREUNDER WILL ACCOMPLISH INTENDED RESULTS OR ARE SAFE FOR ANY PURPOSE INCLUDING THE INTENDED PURPOSE; OR THAT ANY OF THE ABOVE WILL NOT INTERFERE WITH PRIVATELY OWNED RIGHTS OF OTHERS. NEITHER THE GOVERNMENT NOR THE CONTRACTOR SHALL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ATTRIBUTED TO SUCH RESEARCH OR RESULTING PRODUCT, INTELLECTUAL PROPERTY, GENERATED INFORMATION, OR PRODUCT MADE OR DELIVERED UNDER THIS WORK FOR OTHERS AGREEMENT. Guidance: There must be a disclaimer of express or implied warranties as to the conduct of the research. This statement should be in the form of a Uniform Commercial Code (UCC)-type disclaimer, which should be conspicuous in the Work for Others Agreement so as to meet the standards of due notice. One way to do this is to use bold type, all capital letters, or to have an especially large type font specifying the disclaimer. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 19 Article X. GENERAL INDEMNITY The Sponsor agrees to indemnify and hold harmless the Government, the Department, the Contractor, and persons acting on their behalf from all liability, including costs and expenses incurred, to any person, including the Sponsor, for injury to or death of persons or other living things or injury to or destruction of property arising out of the performance of the Agreement by the Government, the Department, the Contractor, or persons acting on their behalf, or arising out of the use of the services performed, materials supplied, or information given hereunder by any person including the Sponsor, and not directly resulting from the fault or negligence of the Government, the Department, the Contractor, or persons acting on their behalf. General Guidance: This Article is required only if the sponsor is providing material or equipment to the contractor or sending its employees to the facility as part of the Statement of Work, or where the sponsor has directed that specific activities not normally performed by the contractor be performed as part of the Statement of Work. Option: When the Work for Others Agreement involves a state, a state agency, a state college or university, or a political subdivision of a state or an agency thereof, and such entity is limited by law from assuming all such indemnification obligations, the General Indemnity Article may begin with: To the extent permitted by {name of State} law, the Sponsor ... CANCELE D Attachment 2 DOE M 481.1-1 Page 20 9-30-96 Article XI. PRODUCT LIABILITY INDEMNITY Language:

Except for any liability resulting from any negligent acts or omissions of the Government or the Contractor, the Sponsor agrees to indemnify the Government and the Contractor for all damages, costs, and expenses, including attorney's fees, arising from personal injury or property damage occurring as a result of the making, using, or selling of a product, process, or service by or on behalf of the Sponsor, its assignees, or licensees, which was derived from the work performed under this Work for Others Agreement. In respect to this Article, neither the Government nor the Contractor shall be considered assignees or licensees of the Sponsor, as a result of reserved Government and Contractor rights. The indemnity set forth in this paragraph shall apply only if the Sponsor shall have been informed as soon and as completely as practical by the Contractor and/or the Government of the action alleging such claim and shall have been given an opportunity, to the maximum extent afforded by applicable laws, rules, or regulations, to participate in and control its defense, and the Contractor and/or Government shall have provided all reasonably available information and reasonable assistance requested by the Sponsor. No settlement for which the Sponsor would be responsible shall be made without the Sponsor's consent unless required by final decree of a court of competent jurisdiction. Option 1: Use of Hold Harmless Provision As an option to using the above language for product liability, a hold harmless provision may be substituted therefor, such as the following. Except for any liability resulting from any negligent acts or omissions of the Government or the Contractor, the Sponsor agrees to hold harmless the Government and the Contractor for all damages, costs, and expenses, including attorney's fees, arising from personal injury or property damage occurring as a result of the making, using, or selling of a product, process, or service by or on behalf of the Sponsor, its assignees, or licensees, which was derived from the work performed under this Work for Others Agreement. Option 2: Assumption of Responsibility by Contractor and/or Sponsor for Product Liability Claims The Sponsor and/or Contractor agree to indemnify the Government for all damages, costs and expenses, including attorney's fees, arising from personal injury or property damage occurring as a result of the making, using or selling of a product, process or service by or on behalf of the Sponsor, its assignees or licensees, which was derived from the work performed under this Work for Others Agreement. In respect to this Article, the Government shall not be considered an assignee or licensee of the Sponsor or Contractor, as a result of CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 21 reserved Government rights. The indemnity set forth in this paragraph shall apply only if Sponsor and/or contractor shall have been informed as soon and as completely as practical by the Government of any action against the Government alleging such claim and shall have been given an opportunity, to the maximum extent afforded by applicable laws, rules, or regulations, to participate in and control its defense, and the Government shall have provided all reasonably available information and reasonable assistance requested by Sponsor or Contractor. No settlement for which Sponsor or Contractor would be responsible shall be made without Sponsor's or Contractor's consent unless required by final decree of a court of competent jurisdiction.

Option 2 Guidance: The contractor and/or sponsor may voluntarily agree to accept all or some of the risks associated with product liability claims. If the contractor or sponsor accepts these risks, the Department will not indemnify either of them for any liability related to product liability claims. Paragraph (c) under General Guidance (below) discusses this situation. The above article, appropriately modified to identify the indemnifying parties and/or the degree of their respective obligations, may be used for Article XI in such a case. Option 3: States and State Agencies It is agreed that when the Work for Others Agreement involves a State, a State agency, a State college or university, or a political subdivision of a State or an agency thereof, and such entity is limited by law from assuming all such indemnification obligations, the product liability Article may begin with: To the extent permitted by {name of State} State law and except for any liability resulting from any negligent acts or omissions... Option 4: Purchase of Product Liability Insurance The ___(Sponsor, Contractor, or Parties) agree to obtain and maintain product liability insurance in the amount of $________ during the life of this Agreement and subsequently for the life of any products, processes or services resulting from work under the Agreement. The Government and the Contractor shall be covered against any claims for product liability as a result of this insurance. A copy of this product liability insurance policy shall be provided to both the Government and the Contractor, including any material modifications thereto, including any notices of termination. The cost for this insurance shall not be charged directly or indirectly to the Government. CANCELE D Attachment 2 DOE M 481.1-1 Page 22 9-30-96 Option 4 Guidance: The sponsor and/or the contractor may agree to purchase and maintain adequate product liability insurance to protect the government and the contractor against product liability claims. Option 5: Sponsor Defends Except for any liability resulting from any willful misconduct or negligent acts or omissions of the Government or the Contractor, Sponsor agrees to indemnify the Government and defend Contractor against any claim or proceeding and pay all damages, costs, and expenses, including attorney's fees, arising from personal injury or property damage occurring as a result of the making, using, or selling of a product, process, or service by or on behalf of the Sponsor its assignees or licensees, which was derived from the work performed under this Work for Others Agreement. In respect to this Article, neither the Government nor Contractor shall be considered assignees or licensees of the Sponsor. The agreement set forth in this paragraph shall apply only if Sponsor shall have been informed as soon and as completely as practical by Contractor and/or the Government of the action alleging such claim and shall have been given an opportunity, to the maximum extent afforded by applicable laws, rules, or regulations, to participate in and control its defense, and the Contractor and/or the Government shall have provided all reasonable assistance requested by Sponsor. No settlement of an action against the Contractor and/or Government for which Sponsor would be responsible hereunder shall be made without the consent of the Sponsor and of the Contractor and the Government (whichever or both of the latter two parties is involved), unless required by final decree of a court of competent jurisdiction.

Option 5 Guidance: Where the sponsor wishes to control litigation costs, the above option may be used. Option 6: Hold Harmless The Sponsor hereby agrees to hold harmless and indemnify the Contractor and the Government, their officers, agents, and employees from any and all damages, whatsoever, including but not limited to, personal injury and property damage sustained as a result of, or arising out of, performance of the work under this Agreement. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 23 Option 6 Guidance: Where the contractor after consultation with the local Department of Energy Field Office believes that use of Options 1-6 above is not justified or does not adequately protect the government or the contractor, this option may be used. Optional Paragraph: Additional Article - Indemnification by Third Party For licenses granted or assignments made by Contractor to any third party in Intellectual Property derived from Generated Information, such licenses shall include the requirement that the third party shall indemnify the Government, Contractor, and Sponsor for all damages, costs and expenses, including attorneys' fees, arising from personal injury or property damage occurring as a result of the making, using, or selling of a product, process, or service by or on behalf of such third party, its assignees, or licensees, provided, however, such third parties shall not be required to indemnify the Government, the Contractor or the Sponsor for any negligent or intentional acts or omissions of the Sponsor. Optional Paragraph Guidance: When the contractor retains rights to license or otherwise transfer technology arising under a Work for Others Agreement, the contractor may agree to flow down to its licensees or transferees indemnification of the sponsor from product liability. If used, this paragraph would normally be in addition to the preferred option or options 1-6, but could be used alone in appropriate circumstances. General Guidance: If the results of the research covered by the Work for Others Agreement are protected in any way for the purpose of commercialization (such as through patents, copyrights, or through generated information declared Proprietary Information under the provisions of the Rights in Technical Data Article of the Agreement), or if there is a specific, identifiable facility technology being transferred, there must be a provision that indemnifies the contractor and the government for all costs related to personal injury and property damage that may result from the sponsor's commercialization and utilization of a product, process, or service. The protection should usually take the form of one or more of the above Work for Others provisions on product liability, as appropriate. Special situations may provide for the deletion of the language of the above product liability provision from the Work for Others Agreement or may justify the use of some other provision in its place. A product liability provision may not be required in certain Work For Other agreements involving the following situations. CANCELE D Attachment 2 DOE M 481.1-1 Page 24 9-30-96 (a) It is determined that the results will be a product, process, or service unlikely to be commercialized (e.g., activity is limited to technical assistance). Circumstances must be such that they justify the exclusion of the product liability indemnity provision from the agreement. Such determinations will be made on a case-by-case basis and will be supported by facts indicating there is little or no potential risk of liability to the government or the contractor. The authority to make these determinations shall reside with the employee of the contractor responsible for supervising the facility.

(b) The results are to be placed totally in the public domain (i.e., no intellectual property protection for any of the results) and accompanied by a DOE-approved disclaimer. (c) The contractor has agreed to accept the risk for product liability without indemnification by the government (Option 2 below). In order for this acceptance to be effective, the acceptance must be in writing and signed by an authorized official of the contractor. This acceptance should be reviewed for legal sufficiency to ensure that it does not directly or indirectly require indemnification by the Government, should liability be found. In the event any of paragraphs (a) and (b), above, apply, the [Reserved] language shall be put in the Work for Others Agreement for the Product Liability provision. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 25 Article XII. INTELLECTUAL PROPERTY INDEMNITY - LIMITED Language: The Sponsor shall indemnify the Government and the Contractor and their officers, agents, and employees against liability, including costs, for infringement of any United States patent, copyright, or other intellectual property arising out of any acts required or directed by the Sponsor to be performed under this Agreement to the extent such acts are not already performed at the facility. Such indemnity shall not apply to a claimed infringement that is settled without the consent of the Sponsor unless required by a court of competent jurisdiction. Guidance: In the event that the work performed under the agreement leads to infringement of any patent, copyright, or other intellectual property, the sponsor agrees to indemnify the government with respect to any specific work done under the agreement which is not work normally done at the facility. If state law does not permit the sponsor to agree to the above indemnification, then alternatively this provision may begin with: "To the extent permitted by {name of State} law, the Sponsor ..." CANCELE D Attachment 2 DOE M 481.1-1 Page 26 9-30-96 Article XIII. NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT Language: The Sponsor shall report to the Department and the Contractor, promptly and in reasonable written detail, each claim of patent or copyright infringement based on the performance of this Agreement of which the Sponsor has knowledge. The Sponsor shall furnish to the Department and the Contractor, when requested by the Department or the Contractor, all evidence and information in the possession of the Sponsor pertaining to such claim. Guidance: The sponsor must inform the Department and the contractor of any claim for infringement arising out of the Work for Others Agreement. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 27 Article XIV. PATENT RIGHTS - USE OF FACILITIES (CLASS WAIVER) Language: 1. Definitions A. "Subject Invention" means any invention or discovery of the Contractor, or, to the extent the Sponsor is performing any work under this Agreement, of the Sponsor, conceived in the course of or under this Agreement, or, in the case of an invention previously conceived by the Sponsor, first actually reduced to practice in the course of or under this Agreement. "Subject Invention" includes any art, method, process, machine, manufacture, design or composition of matter, or any new and useful improvement thereof, or any variety of plant, whether patented under the Patent Laws of the United States of America or any foreign country, or unpatented.

B. "Patent Counsel" means the DOE Patent Counsel assisting the procuring activity which has the administrative responsibility for the facility where the work under this Agreement is to be performed. 2. Rights of the Sponsor; election to retain rights Subject to the provisions of paragraph 3.B. with respect to any Subject Invention reported and elected in accordance with paragraph 4. of this article, the Sponsor may elect to obtain the entire right, title, and interest throughout the world to each Subject Invention and any patent application filed in any country on a Subject Invention and in any resulting patent secured by the Sponsor. Where appropriate, the filing of patent applications by the Sponsor is subject to DOE and other Government security regulations and requirements. 3. Rights of Contractor and Government A. Assignment to either the Contractor or the Government The Sponsor agrees to assign to either the Contractor or the Government, as requested by the Contractor, the entire right, title, and interest in any country to each Subject Invention of the Sponsor and to each Subject Invention of the Contractor, where the Sponsor: (1) does not elect pursuant to this article to retain such rights; or (2) elects to obtain title to a Subject Invention pursuant to paragraph 2. but fails to have a patent application filed in that country on the Subject CANCELE D Attachment 2 DOE M 481.1-1 Page 28 9-30-96 Invention or decides not to continue prosecution or not to pay any maintenance fees covering the invention. B. Terms and Conditions of Waived Rights (1) To preserve the Contractor's and the Government's residual rights to Subject Inventions, and in patent applications and patents on Subject Inventions, the Sponsor shall take all actions in reporting, electing, filing on, prosecuting, and maintaining invention rights promptly, but in any event, in sufficient time to satisfy domestic and foreign statutory and regulatory time requirements, or, if the Sponsor decides not to take appropriate steps to protect the invention rights, it shall notify the Contractor in sufficient time to permit either the Contractor or the Government to file, prosecute, and maintain patent applications and any resulting patents prior to the end of such domestic or foreign statutory or regulatory time requirements. (2) The Sponsor shall convey or ensure the conveyance of any executed instruments necessary to vest in either the Contractor or the Government the rights set forth in this article. (3) With respect to any Subject Invention in which the Sponsor obtains title, the Sponsor hereby grants to the Government a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced by or on behalf of the United States the Subject Invention throughout the world. (4) The Sponsor shall provide the Government a copy of any patent application filed on a Subject Invention within 6 months after such application is filed, including its serial number and filing date. (5) Preference for U.S. Industry. Notwithstanding any other provision of this article, the Sponsor agrees that neither it nor any assignee will 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 or produced through the use of the Subject Invention will be manufactured substantially in the United States. However, in individual cases, the requirement for such an agreement may be waived by DOE upon a showing by the Sponsor 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 United States or that under the circumstances domestic manufacture is not commercially feasible.

CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 29 (6) March-In Rights. The Sponsor agrees that with respect to any Subject Invention of the Contractor in which it has acquired title, the DOE shall retain the right to require the Sponsor to grant a responsible applicant a nonexclusive, partially exclusive, or exclusive license to use the Subject Invention in any field of use, on terms that are reasonable under the circumstances, or if the Sponsor fails to grant such a license, to grant the license itself. DOE may exercise this right only in exceptional circumstances and only if DOE determines that: (a) the action is necessary to meet health or safety needs that are not reasonably satisfied by the Sponsor; or (b) the action is necessary to meet the requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by the Sponsor; or (c) such action is necessary because a licensee of the exclusive right to use or sell any Subject Invention in the United States is in breach of the agreement required by paragraph 3.B.(5). (7) The Sponsor agrees to refund any amounts received as royalty charges on any Subject Invention in procurement by or on behalf of the Government and to provide for that refund in any instrument transferring rights to any party in the invention. (8) The Sponsor agrees to include, within the specification of any United States patent applications and any patent issuing thereon covering a Subject Invention, the following statement. "The Government has rights in this invention pursuant to (specify this underlying Agreement)." 4. Invention Identification, Disclosures, and Reports A. The Sponsor shall furnish the Patent Counsel a written report containing full and complete technical information concerning each Subject Invention it makes within 6 months after conception or first actual reduction to practice, whichever occurs first, in the course of or under this Agreement, but in any event prior to any on sale, public use, or public disclosure of such invention known to the Sponsor. The report shall identify the contract and inventor and shall be sufficiently complete in technical detail and appropriately illustrated by sketch or diagram to convey to one skilled in the art to which the invention pertains a clear understanding to the extent known at the time of disclosure, of the nature, purpose, operation, and to the extent known, the physical, chemical, biological, or electrical characteristics of the invention. The report should also include any CANCELE D Attachment 2 DOE M 481.1-1 Page 30 9-30-96 election of invention rights under this article. When an invention is reported under this paragraph 4.A, it shall be presumed to have been made in the manner specified in Section (a)(1) and (2) of 42 USC 5908. B. The Contractor shall report Subject Inventions it makes in accordance with the procedures set forth in contract ___________. In addition, the Contractor shall disclose to the Sponsor at the same time as disclosure to the Department any Subject Inventions made by the Contractor under this Agreement and the Sponsor shall notify the Department within 6 months of receipt of such disclosure by the Sponsor of any election of patent rights under this article. C. Requests for extension of time for election under subparagraphs A and B may be granted by Patent Counsel for good cause shown in writing. 55. Limitation of Rights

Nothing contained in this patent rights article shall be deemed to give the Government any rights with respect to any invention other than a Subject Invention except as set forth in the Facilities License of paragraph 6. 6. Facilities License In addition to the rights of the Parties with respect to inventions or discoveries conceived or first actually reduced to practice in the course of or under this Agreement, the Sponsor agrees to and does hereby grant to the Government an irrevocable, non-exclusive, paid-up license in and to any inventions or discoveries regardless of when conceived or first actually reduced to practice or acquired by the Sponsor, which at any time, through completion of this Agreement, are owned or controlled by the Sponsor and are incorporated in the facility as a result of this Agreement to such an extent that the facility is not restored to the condition existing prior to the Agreement (1) to practice or to have practiced by or for the Government at the facility, and (2) to transfer such license with the transfer of the facility. The acceptance or exercise by the Government of the aforesaid rights and license shall not prevent the Government at any time from contesting the enforceability, validity, or scope of, or title to, any rights or patents herein licensed. 7. Early Termination of Agreement The terms and conditions of this article shall survive the Agreement, in the event that the Agreement is terminated before completion of the Statement of Work. General Guidance: CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 31 For Work for non-Federal Sponsors Agreements where no research, development, or demonstration is to be conducted in the performance of the Statement of Work, the above provisions need not be included and this article should be titled: [Article XIV. RESERVED] If the Contractor will be retaining title to subject inventions, then the provisions of the prime contract will apply, and the above Patent Rights article should be deleted, and an appropriate reference to the applicability of the patent article of the prime contract should be included. If the Sponsor will be performing work and therefore will be retaining title to its own inventions, then the above Patent Rights article will be appropriately modified. CANCELE D Attachment 2 DOE M 481.1-1 Page 32 9-30-96 Article XV. RIGHTS IN TECHNICAL DATA - USE OF FACILITY 1. The following definitions shall be used. A. "Generated Information" means information produced in the performance of this Agreement. B. "Proprietary Information" means information which is developed at private expense, is marked as Proprietary Information, and embodies (1) trade secrets or (2) commercial or financial information which is privileged or confidential under the Freedom of Information Act (5 USC 552 (b)(4)). C. "Unlimited Rights" means the right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so. 2. The Sponsor agrees to furnish to the Contractor or leave at the facility that information, if any, which is (1) essential to the performance of work by the Contractor personnel or (2) necessary for the health and safety of such personnel in the performance of the work. Any information furnished to the Contractor shall be deemed to have been delivered with Unlimited Rights unless marked as Proprietary Information. The Sponsor agrees that it has the sole responsibility for appropriately identifying and marking all documents containing Proprietary Information, whether such documents are furnished by the Sponsor or produced under this Agreement and made available to the Sponsor for review.

3. The Sponsor may designate as Proprietary Information any Generated Information where such data would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if it were obtained from the Sponsor. Such Proprietary Information will, to the extent permitted by law, be maintained in confidence and disclosed or used by the Contractor (under suitable protective conditions) only for the purpose of carrying out the Contractor's responsibilities under this Agreement. Upon completion of activities under this Agreement, such Proprietary Information will be disposed of as requested by the Sponsor. Before the Contractor releases data associated with this Agreement to anyone, the Sponsor will be afforded the opportunity to review that data to ascertain whether it is Proprietary Information and to mark it as such. 4. The Government and Contractor agree not to disclose properly marked Proprietary Information to anyone other than the Sponsor without written approval of the Sponsor, except to Government employees who are subject to the statutory provisions against disclosure of confidential information set forth in the Trade Secrets Act (18 USC CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 33 1905). The Government and Contractor shall have the right, at reasonable times up to 3 years after the termination or completion of the Agreement, to inspect any information designated as Proprietary Information by the Sponsor, for the purpose of verifying that such information has been properly identified as Proprietary Information. 5. The Sponsor is solely responsible for the removal of all of its Proprietary Information from the facility by or before termination of this Agreement. The Government and Contractor shall have Unlimited Rights in any information which is not removed from the facility by termination of this Agreement. The Government and Contractor shall have Unlimited Rights in any Proprietary Information which is incorporated into the facility or equipment under this Agreement to such extent that the facility or equipment is not restored to the condition existing prior to such incorporation. 6. The Sponsor agrees that the Contractor will provide to the Department a nonproprietary description of the work performed under this Agreement. 7. The Government shall have Unlimited Rights in all Generated Information produced or information provided by the Parties under this Agreement, except for information which is disclosed in a Subject Invention disclosure being considered for patent protection, or which is marked as being Proprietary Information. 8. Copyrights. The Sponsor may assert copyright in any of its Generated Information, and may also require the Contractor, at the Sponsor's expense, to register copyright and assign copyright in any Generated Information produced by the Contractor which the Sponsor wishes to copyright. Subject to the other provisions of this article, and to the extent that copyright is asserted, the Government reserves for itself a royalty-free, world-wide, irrevocable, non-exclusive license for Governmental purposes to publish, distribute, translate, duplicate, exhibit, prepare derivative works, and perform any such data assigned to the Sponsor. 9. The terms and conditions of this article shall survive the Agreement, in the event that the Agreement is terminated before completion of the Statement of Work. Options:

3. The Sponsor, Contractor, and the Government shall have Unlimited Rights in all Generated Information, except for information which is disclosed in a Subject Invention disclosure being considered for patent protection. 4. The Government and Contractor agree not to disclose properly marked Proprietary Information without written approval of the Sponsor, except to Government employees who are subject to the statutory provisions against CANCELE D Attachment 2 DOE M 481.1-1 Page 34 9-30-96 disclosure of confidential information set forth in the Trade Secrets Act (18 U.S.C. 1905). 5. The Sponsor is solely responsible for the removal of all of its Proprietary Information from the facility by or before termination of this Agreement. The Government and Contractor shall have Unlimited Rights in any Proprietary Information which is incorporated into the facility or equipment under this Agreement to such an extent that the facility or equipment is not restored to the condition existing prior to such incorporation. The U.S. Government and Contractor shall have unlimited rights in any information which is not removed from the facility by termination of this Agreement. Option Guidance: In the event that the Sponsor is not afforded the right to treat Generated Information as Proprietary Information, the optional language in 3, 4, and 5 above should be substituted for paragraphs 3, 4, 5, and 7 of the standard language in Article XV, or language representing a middle ground (e.g., 5-year protection for Generated Information) as determined per these guidelines, should be developed by the Contractor with approval of local Department of Energy Field Patent Counsel. General Guidance: The obligations of the parties with respect to proprietary information require that all such materials be sufficiently identified and marked, so that the personnel involved in the project understand what materials are to be protected. If information could not be protected as a valid trade secret or commercial or financial information if brought into the agreement by the sponsor, then it should not be protected under the agreement. If the parties will be using software, biological materials, specimen materials, equipment, or other tangible personal property that a party wants to protect as proprietary, then such items should be included in the definition of proprietary information to ensure such protection. Additional information can be found at 48 CFR 927.400. The parties may wish to return proprietary information before the conclusion of the agreement if such information is no longer needed for work under the agreement. As it appears in the agreement, the data article allows the sponsor to secure all rights in generated information designated by the sponsor as proprietary information. The government would get minimum rights therein. With respect to such designated generated information, the sponsor receives the maximum data rights available to the sponsor. However, there are circumstances that justify or require greater data rights in the contractor/the Department, than Sponsor ownership of all rights. Indications of situations in which such greater rights may be justified are: CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 35 1. the sponsor is not providing proprietary information or material to the facility; 2. the sponsor is not likely to use the results of the work for commercial activity or is an institution that does not want to assert proprietary rights in the data to the exclusion of any rights in the government;

3. the sponsor cannot show that the primary use of the data will be in the U.S. rather than in a foreign country; 4. the WFO Statement of Work is directly related to specific ongoing projects (this is an instance where 5-year protection might be appropriate); 5. the WFO Statement of Work requires only a paper study and is not directed to a particular commercial product of the sponsor (this is an instance where unlimited rights in the government might be appropriate); 6. per the Class Patent Waiver, title to all inventions is not going to the Sponsor; or, 7. any benefit to the U.S. Government would be lost by the removal of the data from the facility. Before the agreement is entered into, the contractor or the Department may require that greater data rights be obtained. The data rights acquired by the government/contractor depend on the circumstances, and can range from unlimited rights to some lesser level of protection, such as a period of protection (e.g., 5 years), or having only part of the data being proprietary to the sponsor. The Department or the contractor can also obtain greater rights in copyright, especially where the agreement covers work that is derivative of prior work at the DOE facility. In unusual circumstances the parties can agree that the sponsor will leave proprietary information at the facility. CANCELE D Attachment 2 DOE M 481.1-1 Page 36 9-30-96 Article XVI. ASSIGNMENT Language: Neither this Agreement nor any interest therein or claim thereunder shall be assigned or transferred by either Party, except as authorized in writing by the other Party to this Agreement, provided, the Contractor may transfer it to the Department, or its designee, with notice of such transfer to the Sponsor, and the Contractor shall have no further responsibilities except for the confidentiality, use, and/or non-disclosure obligations of this Agreement. Guidance: The agreement must provide for orderly transition from one M&O contractor to another in those instances where there is a change in M&O Contractors for the same facility. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 37 Article XVII. SIMILAR OR IDENTICAL SERVICES Language: The Government and/or Contractor shall have the right to perform similar or identical services in the Statement of Work (SOW) for other Sponsors as long as the Sponsor's Proprietary Information is not utilized. Guidance: The facility cannot be precluded from using its staff and facilities to perform services for others, so long as the sponsor's proprietary information is not utilized. CANCELE D Attachment 2 DOE M 481.1-1 Page 38 9-30-96 Article XVIII. EXPORT CONTROL Language: Each Party is responsible for its own compliance with laws and regulations governing export control. CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 39 Article XIX. TERMINATION Language: Performance of work under this Agreement may be terminated at any time by either Party, without liability, except as provided above, upon giving a _______ day written notice to the other Party. The Contractor shall terminate this Agreement only when the Contractor determines, after direction from DOE, that such termination is in the best interest of the Government, provided however, that the Contractor shall have the right to terminate if the Sponsor shall have failed to advance the funds required by Article IV. In the event of termination, the Sponsor shall be responsible for the Contractor's costs (including closeout costs), through the effective date of termination, but in no event shall the Sponsor's cost responsibility exceed the total cost to the Sponsor as described in Article III, above.

It is agreed that any obligations of the Parties regarding Proprietary Information or other intellectual property will remain in effect, despite early termination of the Agreement. CANCELE D Attachment 2 DOE M 481.1-1 Page 40 9-30-96 Article XX. ALTERNATE DISPUTE RESOLUTION (Optional) The Parties to this Agreement are encouraged to utilize the processes of Alternative Dispute Resolution (ADR) to settle any differences that may arise during the performance of this Agreement, although it is not mandatory that they do so. As a starting point, the language below is suggested. Step 1. NEGOTIATION The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiating between executives and/or officials who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this contract. Either Party may give the other Party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving Party shall submit to the other a written response. The notice and the response shall include (a) a statement of each Party's position and a summary of arguments supporting that position, and (b) the name and title of the executive or official who will represent that Party and of any other person(s) who will accompany the executive or official. Within 30 days after delivery of the disputing Party's notice, the executives of both Parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. If the matter has not been resolved within 60 days of the disputing Party's notice, or if the Parties fail to meet within 30 days, either party may (or, "the Parties shall" . . ., if you want it to be mandatory) initiate mediation of the controversy or claim as provided hereafter. All negotiations pursuant to this Agreement are confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and state rules of evidence. Step 2. MEDIATION In the event the dispute has not been resolved by negotiation as provided herein, the Parties agree to participate in ("at least 4 hours of", if you want to limit time, sometimes an inducement to busy officials) mediation, using a mutually agreed upon mediator. The mediator will not render a decision, but will assist the Parties in reaching a mutually satisfactory agreement. The Parties agree to equally split the costs of the mediation. The first mediation session shall commence within 30 days from agreement. The Parties may contact the CANCELE D DOE M 481.1-1 Attachment 2 9-30-96 Page 41 DOE Office of Dispute Resolution with questions or for assistance with selection of neutrals or samples of Agreements to Mediate. All meditations are confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and state rules of evidence. NOTE: The new confidentiality provisions under the revised Administrative Dispute Resolution Act provide much stronger protection and can be incorporated in any agreement as soon as it is passed. Step 3. ARBITRATION

Any dispute not otherwise satisfactorily resolved (shall) may be submitted to arbitration, pursuant to the Administrative Dispute Resolution Act (new cite, not yet available), through the (American Arbitration Association, Jams/Endispute Center for Public Resources, United States Arbitration and Mediation, or other reputable ADR provider). NOTE: Since arbitration, unlike mediation, results in a binding decision by the neutral, it may be useful to hire an outside provider such as those listed above, to assist in arbitrator selection and to provide rules for the arbitration. If the Parties can agree on the arbitrator, they must still agree on the rules of the arbitration. Generally, it is best to limit the time and scope of the arbitration, or it will quickly resemble a trial. Factors to consider include capping the award by agreeing to "high- low" or "baseball" figures, and limiting the duration of the hearing, the number of witnesses, and the amount of evidence to be presented. CANCELE D Attachment 2 DOE M 481.1-1 Page 42 9-30-96 In witness whereof, the Parties hereto have executed this Agreement. FOR Contractor: Name__________________________________ Title_________________________________ Date__________________________________ FOR Sponsor: Name__________________________________ Title_________________________________ Date__________________________________ CANCELE D DOE M 481.1-1 Attachment 3 9-30-96 Page 43 ATTACHMENT 3 Work for Non-Federal Sponsors PROCESS CHECKLIST This Checklist is for reference and may be amplified by the Contractor. Issue Description Department Concur Technical Proposal Concise description of the work requested including schedule, milestones, reporting requirements, and deliverables. Detailed financial information including full- time equivalents; direct costs, such as personnel, supplies and expenses, travel, subcontracts, equipment, facilities, and services; applicable indirect costs; and depreciation and added factor costs for each fiscal year. N/A Consistency with Mission The proposed work must be consistent with or complementary to DOE missions and the missions of the facility. Operations Office (as requested) Adverse Impact on DOE Funded Programs The proposed work must not adversely impact execution of assigned programs of the facility . Operations Office (as requested) Competition with the Private Sector The proposed work must not place the facility in direct competition with the domestic private sector. Operations Office (as requested) Future Burden on DOE The proposed work must not create a detrimental future burden on DOE resources. Operations Office (as requested) Human Subject Use If the project involves human research subjects, it must be approved by Office of Energy Research (ER) if approval authority has NOT been delegated to the Institutional Review Board at facilities holding an approved Multiple Project Assurance from Department of Health and Human Services or Department of Energy. ER/HQ CANCELE D Attachment 3 DOE M 481.1-1 Page 44 9-30-96 Work for Non-Federal Sponsors PROCESS CHECKLIST This Checklist is for reference and may be amplified by the Contractor. Issue Description Department Concur Animal Subject Use If the project involves animal research subjects, the facility must be a U.S. Department of Agriculture-listed facility with a current National Institute of Health assurance or currently accredited by the Department of the American Association for Accreditation of Laboratory Animal Care, Inc. If not, work cannot be performed. If so, the facility can perform the work after its Animal Care and Use Committee has reviewed and approved the proposed project.

N/A Type of Sponsor If the project is funded by a foreign Sponsor, the Office of Policy (PO) must review the project. PO/HQ Nuclear Nonproliferation If the project involves any nuclear nonproliferation detection technology, the Office of Nonproliferation and National Security (NN) must be notified. NN/HQ Intelligence If the project involves intelligence-related work, the Office of Nonproliferation and National Security (NN) must approve the proposed project. NN/HQ Space Nuclear and Noncommercial Power Reactor If the project involves space nuclear or noncommercial power reactor work, the Office of Nuclear Energy (NE) must approve the proposed project. NE/HQ Construction If the project involves any construction or modifications to Department facilities, the Operations Office must be notified. If the cost exceeds the GPP threshold, the Cognizant Secretarial Officer (CSO) and HQ Chief Financial Officer (CFO) must approve the proposed project. CSO and HQ CFO Foreign Travel If the project involves any foreign travel to a sensitive country, the Operations Office must approve the travel. Operations Office CANCELE D DOE M 481.1-1 Attachment 3 9-30-96 Page 45 Work for Non-Federal Sponsors PROCESS CHECKLIST This Checklist is for reference and may be amplified by the Contractor. Issue Description Department Concur Depreciation/Added Factor Is a waiver of depreciation and added factor being requested in accordance with DOE policy. If so, the Field CFO must approve the waiver. Field CFO Overhead Costs Is a waiver for costs in addition to depreciation and added factor costs being requested (e.g., overhead, etc.)? If so, a detailed justification for such waivers must be submitted to the HQ CFO via the cognizant Program Secretarial Officer. HQ CFO WFO Agreement If non-standard terms and conditions are being used, the Operations Office must approve the modified agreement. Operations Office Intellectual Property Is the proposed allocation of patent rights consistent with the terms of the class waiver? Is the disposition of data rights consistent with standard DOE policy? Operations Office (as required by class waiver) Operations Office (if exception to DOE policy) National Environmental Policy Act (NEPA); Environment, Safety, and Health (ES&H) Is the proposed action covered under a categorical exclusion in 10 CFR Part 1021, Subpart D, Appendix A? If so, no Department notification is needed. The Department, as necessary, will audit facility files for appropriateness of categorizations. If the action is not covered in Appendix A, the documentation for a Department determination must be submitted to the Operations Office in accordance with established procedures. Describe any ES&H issues involved in the proposed work, including impacts and how such impacts will be handled. Operations Office (if not covered under Appendix A) Operations Office (as required) CANCELE D Attachment 3 DOE M 481.1-1 Page 46 9-30-96 Work for Non-Federal Sponsors PROCESS CHECKLIST This Checklist is for reference and may be amplified by the Contractor. Issue Description Department Concur Classified, Export Controlled, and Unclassified Controlled Nuclear Information

Specify whether this project will involve the use or generation of classified information, export controlled information (ECI) or unclassified nuclear information (UCNI). Provide a summary of the internal review, such as who conducted the review and what the results were, and state how such information should be protected. If access to classified information, special nuclear materials (SNM), or unescorted facility security areas is involved in the project, a foreign ownership, control, or influence (FOCI) questionnaire must be completed. Also, the Operations Office must be notified if classified information, UCNI, or SNM are being used or generated. Operations Office (as required) Conflict of Interest Review project personnel for any affiliations that could present the appearance of Conflict of Interest (e.g., consulting role, director position, controlling interest in a spin-off company). Where Conflict of Interest appears to exist, describe the mitigating measures taken to reduce the impact on the work. The laboratory must state that it will continue to monitor the Conflict of Interest status of each identified person as follows, "Each employee of the Laboratory has completed a Conflict of Interest statement that complies with the M&O contract. If during the course of the work, conflicts are revealed, steps will be taken to manage and/or mitigate them." N/A CANCELE D DOE M 481.1-1 Attachment 4 9-30-96 Page 47 (and 48) ATTACHMENT 4 Management and Administration Plan Outline EXAMPLE C PROCESS: A description (narrative and flow chart) of the internal laboratory or facility process for handling reimbursable work for non-Federal partners. This will include, at a minimum, and for each item of the process checklist described in Exhibit 3, who reviews, who signs, and what internal controls will be established. C DOCUMENTATION: A description of the documentation that will be maintained in Contractor files. Specific attention should be given to those items delegated to the Contractor in order to adequately demonstrate the integrity of the process to an impartial observer. Items delegated may include, the four determinations required by DOE O 481.1, Paragraph 4a, disposition of intellectual property, and conflict of interest for project staff. Documentation required in support of DOE approval/concurrence will be in accordance with Departmental requirements. C METRICS: A description of the process to be used by the Contractor to conduct a self- assessment of its performance related to this process as well as the technical and administrative performance under the agreement. This will include providing data on a set of process measures and a provision for performing customer surveys. C RESOURCES: A description of the incremental increase in Contractor resources (FTEs, dollars) needed to implement the reimbursable work for non-Federal partners process. C OTHER ITEMS: Any other items agreed to by both the Operations Office and laboratory or facility. CANCELE D