§ 4-7.5101-1 Definitions.

The following terms shall have the meanings set forth below:

(a) Agency. Any of the several agencies of the Department of Agriculture.

(b) Authorized departmental officer. Any person authorized to sign research agreements with educational institutions on behalf of his agency, or his properly designated representative.

(c) Cost sharing. Participation by the educational institution in the cost of conducting the program.

(d) Department. The U.S. Department of Agriculture.

(e) General purpose equipment. Nonexpendable property which is usable for activities other than activities directly related to the research, such as office equipment and furnishings, air conditioning, reproduction or printing equipment, motor vehicles, etc.

(f) Educational institution. The educational institution with which the research agreement is made. An educational institution (1) has a faculty, (2) offers courses of instruction, (3) is authorized to award a degree or certificate upon completion of a specific course of study.

(g) Nonexpendable property. Property which: (1) Costs $300 or more, (2) is complete in itself, (3) does not lose its identity or become a component part of another when put into use, and (4) is of a durable nature with an expected service life of over 1 year.

(h) Research agreement. A written agreement and amendments thereto between an agency and an educational institution to perform basic or applied research. Research agreements will be documented on the following types of instruments, as appropriate: (Form AD-451 shall be used as a cover sheet; Form AD-452, General Provisions, is incorporated in Form AD-451 by reference).

(1) Contract. Agreement for work to be performed by one party for the other for consideration. When a contract is the award instrument used, the following factors will generally be present:

(1) Initiative should be with the agency that wishes a specific task to be performed.

(ii) The task should be capable of being specified in detail.

(iii) The purpose is to purchase a specific service or end product.

(iv) The contract may specify the manner of performance or timing of the work.

(2) Grant. Agreement which provides for an agency to furnish money, property, or materials to an institution to be used in connection with research programs. When a grant is the award instrument used, the following factors will generally be present:

(i) Initiative generally comes from the grantee.

(ii) The grantee should have substantial freedom to pursue its stated purpose. (iii) The agency purpose should be to aid or support.

(iv) The agency does not, generally, need to specify the manner of performance or timing of the work.

(3) Cooperative arrangement. An agreement which provides for mutual undertaking by the agency and the institution to perform research. When a cooperative arrangement (agreement) is the award instrument used, the following factors will generally be present:

(i) The agency and the institution. cooperate in the project and are mutually interested in the objective.

(ii) There should be mutual and shared responsibility in planning and conducting the project.

(iii) There should be contributions by all parties.

[38 FR 5639, Mar. 2, 1973, as amended at 38 FR 8444, Apr. 2, 1973]

§ 4-7.5101-2 Period of agreement.

PERIOD OF AGREEMENT

Except where prohibited by statute, extension of time for performance of this agreement may be granted by the Authorized Departmental Officer for good cause. § 4-7.5101-3 Period of performance.

PERIOD OF PERFORMANCE

The Institution shall advise the Authorized Departmental Officer when it has reason to believe that this research project cannot be completed within the period of performance set forth in this agreement. 84-7.5101-4 Key personnel.

KEY PERSONNEL

Written approval of the Authorized Departmental Officer is required to change the principal investigator(s) or to continue the research work, without participation of the principal investigator(s), for a period in excess of 3 continuous months. Substantial reduction in the effort devoted to the work by the principal investigator(s) requires ap

proval of the Authorized Departmental Officer.

The principal investigator(s) shall obtain prior written approval of the Authorized Departmental Officer before changing the objectives of the research effort as stated in the agreement or the phenomenon or phenomena under study.

[36 F.R. 5849, Mar. 30, 1971]

§ 4-7.5101-5 Research assistance.

RESEARCH ASSISTANCE

No contract, subcontract, grant, or other arrangement shall be made with any other party for performing all or any portion of this research project, except for service functions, without prior written approval of the Authorized Departmental Officer.

§ 4-7.5101-6 Travel.

Surface travel or less than first-class air accommodations shall be used where and when available for travel charged to this research agreement.

[38 FR 5639, Mar. 2, 1973]

§ 4-7.5101-7 Questionnaire and survey plans.

QUESTIONNAIRE AND SURVEY PLANS

In the event this Research Agreement involves the collection of identical information from 10 or more persons other than Federal employees, the Institution shall submit to the Authorized Departmental Officer copies of all questionnaires and survey plans for transmittal to the Officer of Management and Budget for approval prior to their use, in accordance with the Federal Report Act of 1942, 44 U.S.C. 3501 et seq.

The estimated costs set forth in the budget are for the purpose of estimating total cost only and may therefore differ from the actual costs incurred. Reimbursement shall be made only for allowable costs.

(a) Except as may be otherwise specifically provided in this agreement, the determination of allowable costs shall be in accordance with OMB Circular A-21 (revised).

(b) The Institution shall advise the Authorized Departmental Officer when it has reason to believe that this research project cannot be completed within the estimated cost.

(c) The Department shall not be obligated to reimburse the Institution for costs incurred in excess of the total estimated cost; and the Institution shall not be obligated to continue performance that will incur costs in excess of such total estimated cost.

(d) The Authorized Departmental Officer shall be kept informed of contemplated major changes of cost estimates and the reason therefor. Expenditures requiring prior approval in writing from the Authorized Department Officer are:

(1) Foreign travel must be specifically approved for each separate trip. Foreign travel is any travel outside of Canada and the United States and its territories and possessions.

(2) Domestic travel exceeding the amount allocated for such travel by $500 or 25 percent whichever is greater.

(3) Personnel movements of a special or mass nature not approved in the budget. (4) Purchase of general purpose equipment not itemized in the approved budget.

(5) Purchase of permanent research equipment costing $1.000 or more and not itemized in the approved budget.

COVENANT AGAINST CONTINGENT FEES The Institution warrants that no person or selling agency has been employed or retained to solicit or secure this agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Institution for the purpose of securing business. For breach or violation of this warranty the Government shall have the right to annul this agreement without liability, or in its discretion to deduct from the cost or consideration, or otherwise recover, the full amount of such Commission, percentage, brokerage, or contingent fee.

84-7.5101-17 Patent provisions and publication of results.

PATENT PROVISIONS AND PUBLICATION OF
RESULTS

(a) General. With respect to the publication of any results of the research conducted under this agreement, it is agreed that the results may be made known to the public by either party after due notice and submission of the proposed manuscript to the other, with such credit or recognition as may be mutually agreed upon: Provided, That full responsibility is assumed by such party for any statements on which there is a difference of opinion: And provided further, That no copyrights shall subsist in any such publication.

(b) For agreements documenting cooperative arrangements with Public Institutions. Any invention resulting from this cooperative work and made jointly by an employee or employees of the U.S. Department of Agriculture and the Cooperator or an employee or employees of the Cooperator shall be fully disclosed, either by publication or by patenting in the United States, and any such U.S. patent shall either be dedicated to the free use of the people in the territory of the United States or be assigned to the United States of America or be assigned to the Cooperator, as may be mutually agreed upon by the parties hereto: Provided, That in the event of assignment to the Cooperator, the Government shall receive an irrevocable, nonexclusive, royalty-free license under the patent, throughout the world, to practice the invention for all governmental purposes: And provided further, That nonexclusive, royalty-free licenses shall be issued by the Cooperator to any and all applicants technically competent to make use of the patent: Provided, That where the assignment is to the Government, it shall be of the domestic patent rights. Where the domestic patent rights are so assigned, the U.S. Department of Agriculture shall have an option to acquire the foreign patent rights in the invention on which an application for a U.S. patent is filed, for any particular foreign country, said option to expire in the event that the Government fails to cause an application to be filed in any such country on behalf of the Government or determines not to seek patent in such country within 6 months after the filing of the application for a U.S. patent on the invention. Where the domestic patent rights are assigned to the Government, but the foreign patent rights are retained by an employee, the employee shall grant to the Government a nonexclusive, irrevocable, royalty-free license in any patent which may issue thereon in any foreign country, including the power to issue sublicenses for use in behalf of the Government and/or in furtherance of the foreign policies of the Government, and said license shall also include the power to sublicense American licensees under Government-owned U.S.

patents to practice the invention without payment of royalty or other restriction in any foreign country wherein a corresponding patent may issue to the employee or his foreign assignee. Any invention made independently by an employee or employees of the U.S. Department of Agriculture or by the Cooperator or an employee or employees of the Cooperator shall be disposed of in accordance with the policy of the U.S. Department of Agriculture or the Cooperator, respectively: Provided, That in the event the invention is made solely by an employee or employees of the Cooperator, the Cooperator shall grant or shall obtain from the assignee of any patent issued on said invention an irrevocable, nonexclusive, worldwide, royaltyfree license for the Government, for all governmental purposes: And provided further, In the event the invention is made solely by an employee or employees of the Cooperator, that unless the Cooperator or his assignee has taken effective steps within 3 years after a patent issues on the invention to bring the invention to the point of practical application or has made the invention available for licensing royalty-free or on terms that are reasonable in the circumstances, or can show cause why he should retain the principal or exclusive rights for a further period of time, the Government shall have the right to require the granting of a license to an applicant on a nonexclusive, royalty-free basis.

(c) For agreements documenting cooperative arrangements with Private Institutions. Any invention resulting from this cooperative work and made jointly by an employee or employees of the U.S. Department of Agriculture and a Cooperator or an employee or employees of a Cooperator shall be fully disclosed, either by publication or by patenting in the United States. The domestic patent rights in any such U.S. patent shall either be dedicated to the free use of the people in the territory of the United States or be assigned to the Government of the United States of America, as represented by the Secretary of Agriculture. Where the domestic patent rights are assigned to the Government, the U.S. Department of Agriculture shall have an option to acquire the foreign patent rights in the invention on which an application for a U.S. patent is filed, for any particular foreign country, said option to expire in the event that the Government fails to cause an application to be filled in any such country on behalf of the Government or determines not to seek a patent in such country within 6 months after the filing of the application for a U.S. patent on the invention. Where the domestic patent rights are assigned to the Government, but the foreign patent rights are retained by an employee, the employee shall grant to the Government 8 nonexclusive, irrevocable, royalty-free license in any patent which may issue thereon in any foreign country, including the power to issue sublicenses for use in

behalf of the Government and/or in furtherance the of the foreign policies of Government, and said license shall also include the power to sublicense American licensees under Government-owned U.S. patents to practice the invention without payment of royalty or other restriction in any foreign country wherein a corresponding patent may issue to the employee or his foreign assignee. Any invention made independently by an employee or employees of the US. Department of Agriculture or by a Cooperator or an employee or employees of a Cooperator shall be disposed of in accordance with the policy of the U.S. Department of Agriculture or a Cooperator, respectively: Provided, That in the event the invention is made solely by an employee or employees of the Cooperator, the Cooperator shall grant or shall obtain from the assignee of any patent issued on said invention an irrevocable, nonexclusive, worldwide, royaltyfree license for the Government, for all governmental purposes: And provided further, In the event the invention is made solely by an employee or employees of the Cooperator, that unless the Cooperator or his assignee has taken effective steps within 3 years after a patent issues on the invention to bring the invention to the point of practical application or has made the invention available for licensing royalty-free or on terms that are reasonable in the circumstances, or can show cause why he should retain the principal or exclusive rights for a further period of time, the Government shall have the right to require the granting of a license to an applicant on a nonexclusive, royalty-free basis.

(d) For agreements documenting grants or contracts. The public shall be granted all benefits of any patentable results of all research and investigations conducted and all information, data, and findings developed under this agreement, through dedication, assignment to the Secretary, publication, or such other means as may be determined by the Authorized Departmental Officer.

(1) With respect to patentable results and in accordance with this clause the Institution agrees:

(1) To cooperate in the preparation and prosecution of any domestic and foreign patent application which the Department may decide to undertake covering the subject. (ii) To execute all papers requisite in the prosecution of such patent application including assignment to the United States and dedications.

(111) To secure the cooperation of its employees in the preparation and the execution of all such papers as may be required in the prosecution of such patent applications or in order to vest title in the subject matter involved in the United States, or to secure the right of free use in public. It is understood, however, that the making of prior art searches, the preparation, filling, and

prosecution of patent applications, the determination of questions of novelty, patentability, and inventorship, as well as other functions of a patent attorney, are excluded from these duties.

(2) With respect to nonpatentable results of research and investigations and information concerning the research work, which the Authorized Departmentt Officer determines will not form a basis of a patent application, it is agreed that results may be made known to the public by either party after due notice and submission of the proposed manuscript to the other, with such credit or recognition as may be mutually agreed upon: Provided, That full responsibility is assumed by such party for any statements on which there is a difference of opinion; And provided further, That no copyrights shall subsist in any such publication. § 4-7.5101-18 Termination for convenience of the Government.

TERMINATION FOR CONVENIENCE OF THE

GOVERNMENT

(a) The performance of the research work under this Agreement may be terminated, in whole or from time to time in part, by the Government whenever for any reason the Authorized Departmental Officer shall determine that such termination is in the best interest of the Government. Termination of the research work hereunder shall be effected by delivery to the Institution of a Notice of Termination specifying the etxent to which performance under this Agreement is terminated and the date upon which such termination becomes effective.

(b) After receipt of the Notice of Termination the Institution shall cancel its outstanding commitments hereunder covering the procurement of materials, supplies, equipment, and miscellaneous items. In addition, the Institution shall exercise all reasonable diligence to accomplish the cancellation or diversion of its outstanding commitments covering personal services and extending beyond the date of such termination to the extent that they relate to the performance of any work terminated by the notice. With respect to such canceled commitments the Institution agrees to (1) settle all outstanding liabilities and all claims arising out of such cancellation of commitments, with the approval or ratification of the Authorized Departmental Officer, to the extent he may require, which approval or ratification shall be final for all purposes of this clause, and (2) assign to the Government, in the manner, at the time, and to the extent directed by the Authorized Departmental Officer, all of the rights, title, and interest of the Institution under the orders and subcontracts so terminated, in which case the Government shall have the right, in its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts.

(c) The Institution shall submit its termination claim to the Authorized Depart

mental Officer promptly after receipt of a Notice of Termination, but in no event later than 1 year from the effective date thereof, unless one or more extensions in writing are granted by the Authorized Departmental Officer upon written request of the Institution within such 1-year period or authorized extension thereof. Upon failure of the Institution to submit its termination claim within the time required by the Department's procedures in effect as of the date of execution of this agreement, the Department shall determine on the basis of information available to it, the amount, if any, due the Institution by reason of the termination, and shall thereupon pay to the Institution the amount so determined.

(d) Any determination of costs under paragraph (c) shall be governed by the cost principles set forth in OMB Circular A-21 (revised).

(e) Subject to the provisions of paragraph (c) above, and subject to any review required by the Department's procedures in effect on the date of execution of this agreement, the Institution and the Authorized Departmental Officer may agree upon the whole or any part of the amount or amounts to be paid to the Institution by reason of the termination under this clause, which amount or amounts may include any reasonable cancellation charges thereby incurred by the Institution and any reasonable loss upon outstanding commitments for personal services which it is unable to cancel: Provided, however, That in connection with any outstanding commitments for personal services which the Institution is unable to cancel, the Institution shall have exercised reasonable diligence to divert such commitments to its other activities and operations. Any such agreement shall be embodied in an amendment to this agreement and the Institution shall be paid the agreed amount.

(f) The Government may from time to time, under such terms and conditions as it may prescribe, make partial payments against costs incurred by the Institution in connection with the terminated portion of this agreement, whenever, in the opinion of the Authorized Departmental Officer, the aggregate of such payments is within the amount to which the Institution will be entitled hereunder. If the total of such payments is in excess of the amount finally agreed upon or determined to be due under this clause, such excess shall be payable by the Institution to the Government upon demand: Provided, That if such excess is not so paid upon demand, interest thereon shall be payable by the Institution to the Government at the rate of 6 percent per annum, beginning 30 days from the date of such demand.

(g) The Institution agrees to transfer title to the Government and deliver in the manner, at the times, and to the extent, if any, directed by the Authorized Departmental Officer, such information and items which, if this agreement had been completed, would