[Reference: Energy Policy Act, Pub. L. 102-486; DEAR 926.70]

Overview

This section provides implementation guidance on sections 3001 and 3002 of the Energy Policy Act, (EPAct) 42 U.S.C. 13541 and 13542 for acquisition awards.

Background

Sections 3001 and 3002 provide general provisions covering the research, development, demonstration, and commercial application activities to be carried out under EPAct. Section 3001 authorizes the Secretary to carry out research, development, demonstration and commercial application programs through the use of contracts, cooperative agreements, grants, cooperative research and development agreements, and joint ventures.

It also extends the protection of information coverage of the Stevenson-Wydler Technology Innovation Act of 1980, 15 U.S.C. 3710 a(c)(7) to research, development, demonstration, and commercial application programs and activities under EPAct.

Section 3002 imposes cost sharing requirements for such activities. For research and development programs, the Secretary requires a commitment from non-Federal sources of at least 20 percent of the cost of the project.

For demonstration and commercial application programs, the Secretary requires at least 50 percent of the costs directly and specifically related to any demonstration or commercial application project to be provided from non-Federal sources.

The Secretary may reduce or eliminate the non-Federal requirement for cost sharing for research and development programs if the Secretary determines that the research and development is of a basic or fundamental nature.

For demonstration and commercial application programs, the Secretary may reduce the non-Federal requirement if the reduction is necessary and appropriate considering the technological risks involved in the project and the project is necessary to meet the objectives of EPAct.

In calculating the amount of the non-Federal commitment, cash, personnel, services, equipment, and other resources are included.
 
Guidance

The requirements of Sections 3001 and 3002 apply to contracts for research and development, demonstration, and commercial application projects under an EPAct covered program which are made on or after October 24, 1992, the effective date of EPAct.

The Department of Energy has determined that programs executed under the authority of the Small Business Innovation Research and Small Business Technology Transfer programs are not covered under EPACT.

Contracting Officer Responsibilities

Contracting officers must include the following information in any solicitation for research and development, demonstration, and commercial application programs covered under EPACT:

(1) Protection of Information.

The provisions of Section 12(c)(7) of the Stevenson-Wydler Technology Innovation Act of 1980, relating to the protection of information, apply to research, development, demonstration, and commercial application programs and activities under this Act.

These provisions specify:

• The protection from public disclosure of trade secrets or financial or commercial information that is privileged or confidential and obtained in the conduct of research or as a result of activities under this Act from a non-Federal party to a covered contract.
  
• The protection from public disclosure, for a period of up to five years from development, of information resulting from the contract that would be a trade secret or commercial or financial information that is privileged or confidential if the information had been obtained from a non-Federal party to a covered contract. This protection from public disclosure includes exemption from disclosure pursuant to 5 U.S.C. 552(b) (The Freedom of Information Act.)

The Contracting Officer coordinates with the DOE Patent Counsel prior to award of any contract covered under EPAct to assure appropriate intellectual property provisions.

In no event does the Contracting Officer construe the data protection provisions to apply to information or data generated by M&O contractors under their prime contract with the Department. 
 
(2) Cost sharing requirement.

Contractor proposals must show the requisite cost sharing commitment. The following is suggested language which may be used in solicitations and resulting contracts.

Cost Sharing Requirement

EPACT 3002 requires a cost sharing commitment of 20 percent from non-Federal sources for research and development projects. For demonstration or commercial application projects, the cost sharing requirement from non-Federal sources is 50 percent. Your cost proposal must show the breakout between Federal and non-Federal sources and how you propose to meet the cost sharing requirement. The non-Federal share may include cash, personnel, services, equipment, and other resources.

All cost sharing or matching contributions, including cash and third party in-kind, shall meet the following criteria:
(1) are verifiable from the contractor's records,
(2) are not included as contributions for any other federally-assisted project or program,
(3) are necessary and reasonable for proper and efficient accomplishment of project or program objectives,
(4) are allowable under the applicable cost principles,
(5) are not paid by the Federal Government under another award, except where authorized by Federal statute to be used for cost sharing or matching.
Values for contractor contributions of services and property shall be established in accordance with applicable cost principles.

Volunteer services furnished by professional and technical personnel, consultants, and other skilled and unskilled labor may be counted as cost sharing or matching if the service is an integral and necessary part of an approved project or program. Rates for volunteer services shall be consistent with those paid for similar work in the contractor's organization. In those instances in which the required skills are not found in the contractor organization, rates shall be consistent with those paid for similar work in the labor market in which the contractor competes for the kind of services involved.

In addition to including the appropriate information in solicitations, the contracting officer also ensures that the award document incorporates the cost sharing requirement and that cost sharing is obtained.

Waiver of Cost Sharing Requirement

The Secretary has delegated the authority to make the determinations waiving the section 3002 non-Federal cost sharing requirement to the Director, Office of Procurement and Assistance Management.

The Director, Office of Procurement and Assistance Management, by separate document, redelegated authority to make EPAct cost sharing determinations to the Heads of Contracting Activities (HCAs) and, with respect to the financial assistance under the Office of Energy Research Financial Assistance Program Rule, 10 CFR Part 605, to the Director, Office of Energy ResearchScience.

Any determination waiving or reducing a cost sharing requirement must be based on the section 3002 criteria. For research and development programs, DOE must determine that the research and development is of a basic or fundamental nature.

For demonstration and commercial application programs, the determination must show that the reduction is necessary and appropriate, considering the technological risks involved in the project and the project is necessary to meet the objectives of EPAct. This determination should be based on demonstrated results of activities such as the following:

(1) Solicitations. The contracting activity has attempted to obtain cost sharing, but industry and others did not respond to the solicitation.

(2) Other studies.  Market surveys or other studies have been conducted which provide significant data that commercial organizations are not willing to participate in programs, projects or other activities because of the cost sharing requirements.

Attachment

The attached listing identifies EPAct covered programs.
 
ATTACHMENT 1

COVERED PROGRAMS- § 3002 EPACT SECTIONS

Fossil Energy R & D

Coal All Programs Including § 1301-1312
Coal-fired Diesel Engines § 1302
Clean Coal, Waste-To-Energy § 1303
Nonfuel Use of Coal § 1304
Coal Refinery Program § 1305
Coalbed Methane Recovery § 1306
Metallurgical Coal Development § 1307
Utilization of Coal Wastes § 1308
Underground Coal Gasification § 1309
Low-rank Coal Research and Development § 1310
Magnetohydrodynamics § 1311
Oil Substitution Through Coal Liquefaction § 1312

Clean Coal Technology § 1321
Fossil Energy R & D

Petroleum

Enhanced Oil Recovery All Programs Including: § 2011
Heavy Oil § 2011
Light Oil § 2011
Tar Sands § 2011
Advanced Extraction & Process Tech All Programs Including: § 2011
Geological Science/Extract Research § 2011
SPT Technology/Environmental Research § 2011
University Geoscience Research § 2011
Oil Shale All Programs: § 2012

Gas

Natural Gas Research All Programs Including: § 2013-2015
Resource & Extraction § 2013, 2014
Delivery & Storage § 2013, 2014
Utilization § 2013, 2014
Environmental Research & Regulatory Analysis § 2013, 2014
Midcontinent Energy Research Center* § 2013, 2015
Fuel Cells All Programs Including: § 2115
Advanced Research § 2115
Phosphoric Acid Systems § 2115
Molten Carbonate Systems § 2115
Advanced Concepts § 2115

Energy Conservation

Transportation All Programs Including: § 2021-2025,
2027, 2028,
2112
Alternative Fuels Utilization § 2021, 2023
Materials Development § 2021
Heat Engine Development § 2021, 2112
Electric & Hybrid Propulsion Development § 2021, 2025
Implementation & Deployment § 2021
Management § 2021
Management-Capital Equipment § 2021
Advanced Automotive Fuel Economy § 2021, 2022
Biofuels User Facility* § 2021, 2024
Advanced Diesel Emissions Program* § 2021, 2027
Telecommuting Study* § 2021, 2028

Utility All Programs Including: § 2101
Integrated Resource Planning § 2101
Program Direction-IRP § 2101
Energy Management Control § 2101

Industry All Programs Including: § 2101-2108
Industrial Wastes § 2101
Municipal Solid Wastes § 2101
Cogeneration § 2101
Electric Drives § 2101, 2105
Materials Processing § 2101, 2107
Separations § 2101
Sensors & Controls § 2101
Bioprocessing § 2101
Enabling Materials § 2101
Improved Combustion Efficiency § 2101, 2107
Process Heating & Cooling § 2101, 2102
Implementation & Deployment § 2101
Management § 2101
Management-Capital Equipment § 2101
National Advanced Manufacturing Tech Initiative* § 2101, 2202
Pulp & Paper* § 2101, 2103
Steel, Aluminum, and Metal Research* § 2101, 2106
Energy Efficient Environmental Program* § 2101, 2108

Buildings All Programs Including: § 2101-2108
Solar Technologies § 2101
Materials & Structures § 2101
Lighting & Appliances § 2101
Heating & Cooling Equipment § 2101, 2102
Indoor Air Quality § 2101
Building Systems Research § 2101
Federal Energy Management Program § 2101
Implementation & Deployment § 2101
Management § 2101
Management-Capital Equipment § 2101
Advanced Buildings for 2005* § 2101, 2104

Energy Supply R & D

Energy Research

Fusion Energy All Programs Including: § 2114
Confinement Systems § 2114
Development & Technology . § 2114
Applied Plasma Physics § 2114
Planning & Projects § 2114
Inertial Fusion Energy § 2114
Program Direction-Op Exp § 2114
Capital Equipment & Construction § 2114
Basic Energy Sciences All Programs Including: § 2203
Materials Sciences § 2203
Chemical Sciences § 2203
Energy Biosciences § 2203
Engineering & Geosciences § 2203
Applied Math Sciences § 2203, 2204
Advanced Energy Projects § 2203
Advanced Neutron Source § 2203
Program Direction § 2203
Capital Equipment § 2203
Advisory & Oversight/Program Direction § 2203
Energy Research Analysis § 2203
University & Science Education Programs § 2203
Experimental Program to Stimulate Competitive Research* § 2203
Laboratory Technology Transfer § 2203
Multi-Program Laboratory Support § 2203

Nuclear Energy

Light Water Reactor § 2123, 2126
Advanced Reactor R&D § 2121, 2122
2124, 2126
Facilities § 2126
Solar & Renewables

Solar & Other Energy All Programs Including: § 2021, 2026,
§ 2111, 2117
Photovoltaics § 2111
Biofuels § 2021
Solar Technology Transfer § 2111
NREL § 2111
Program Direction- Other Solar Energy § 2111
Solar Building Technology Research § 2111
Solar Thermal Energy Systems § 2111
Wind Energy Systems § 2111
Ocean Energy System § 2111
International Solar Energy Program § 2111
Resource Assessment § 2111
Program Support § 2111
Geothermal § 2111
Hydrogen Research § 2026
Electric Energy Systems including: Superconductivity § 2117, 2111
Energy Storage Systems § 2111

Environmental Restoration & Waste Management

Facility Transition-Fast Flux Test Facility § 2116

Civilian Waste R & D § 2113

Electric & Magnetic Fields Research
and Public Dissemination Program* § 2118
Spark M. Matsunga Renewable Energy
& Ocean Technology Center* § 2111, 2119

*Direct citation from Title XX-XXIII.