SECTION 1. PURPOSE.
.01 This Order prescribes Department of Commerce (the Department) policies, procedures, and responsibilities for authorizing and managing the use of Department facilities by other Federal agencies, state and local governments, educational institutions, and the private sector for proprietary or non-proprietary research.
.02 This Order was reviewed for currency and is being reissued with minor changes.
SECTION 2. BACKGROUND.
Specialized Federal facilities, laboratories, observatories, vessels, aircraft, and scientific equipment are a high-cost national resource that should be used to the maximum. The Department encourages sharing these resources for research by agencies and, when appropriate, by state and local governments, educational institutions, and the private sector. This Order consolidates existing authorities, procedures, and responsibilities for managing the use of Department facilities under these circumstances.
SECTION 3. POLICY.
.01 Under the conditions established in this Order, the head of an operating unit will allow the use of specifically designated facilities by scientific and other qualified outside individuals and entities.
.02 The use of any such facility must be compatible with its design and purpose, and with its associated equipment and other resources. The user must have the technical competence to accomplish independently the activities to be performed under the Memorandum of Agreement authorizing a facility's use. The head of an operating unit has the discretion to determine priority among competing requests for use. In addition, the use must:
a. Be justified as beneficial to the Federal government;
b. Not interfere with the activities or mission of the Department or one of its operating units; and
c. Not be likely to result in damage to or misuse of the facility or injury to Department or user personnel.
d. Meet the requirements under Department Administrative Order 207-12, "Foreign National Visitor Guest and Assignee Access Program," when applicable.
.03 Use of a facility by non-Department users, and any additional technical assistance, incidental services, or supplies furnished to a user -- in addition to those marginal items allowed normally for a particular facility -- shall be charged to the user at full-cost. Charges shall be consistent with OMB Circular A-25. The head of the operating unit shall deposit any fees collected into the U.S. Treasury as miscellaneous receipts or, if authorized by statute, to an agency account or fund.
.04 The facilities that the heads of operating units make available for non-Federal use must not be also available in an equal or superior form from the domestic private sector on an independent, convenient, and timely basis. The possibility that the Department may (or will) charge a lower cost-to-user fee shall not be a justifying factor unless the user costs for other available facilities are unreasonable.
.05 This Order does not cover or authorize:
a. The Department's conduct of research for others; and
b. The Department's participation in cooperative ventures, collaborative activities, or joint research activities.
.06 Excess Department property or facilities shall not be retained to promote outside user revenue when cost savings can be realized by eliminating the excess capacity.
SECTION 4. GENERAL AUTHORITY PERMITTING NON-FEDERAL USE OF DEPARTMENT FACILITIES.
.01 20 United States Code (U.S.C.) 91 provides: "The facilities for study, research and illustration in the Government departments....shall be accessible, under such rules and restrictions as the officers in charge of each department....may prescribe, subject to such authority as is now or may hereafter be permitted by law, to the scientific investigators and to duly qualified individuals, students, and graduates of any institution of learning in the several States and Territories and the District of Columbia...."
.02 The Comptroller General's decisions provide that heads of Departments have authority, even in the absence of specific statutory authority, to grant a private individual, business, or organization a revocable license to use Government property, subject to termination at any time at the will of the Government, provided that such use does not injure the property in question and serves some purpose useful or beneficial to the Government itself. (See 47 Comp. Gen. 387 (1968))
SECTION 5. DEFINITIONS.
The following definitions apply to this Order:
a. "Research Facilities" means Department-owned or leased scientific research installations, including laboratories, test facilities, measurement facilities, observatories, vessels, aircraft, scientific equipment, and support systems applicable to any of these resources. For the purpose of this Order, research facilities shall include any major Department-owned or leased resources which, at the discretion of the head of an operating unit, may be made available for use by Federal or non-Federal entities in conducting proprietary or non-proprietary research.
b. "Proprietary Research Activities" means research activities, surveys, laboratory analyses, measuring or testing of specific materials, chemicals, or devices conducted by non-Federal parties using Department facilities, where the resulting data or other products are treated as confidential by the non-Federal parties. In contrast, under non-proprietary research, the host operating unit will be entitled to obtain, use, and permit public access to the resulting data.
SECTION 6. RESPONSIBILITIES.
Heads of operating units, within the scope of their management authority as prescribed in applicable Department Organization Orders and this Order, will allow the use of specifically designated facilities by state, local, and private sector individuals and organizations for both proprietary and non-proprietary research purposes. Heads of operating units shall ensure that the use of such facilities conforms to U.S. Government and Department legal requirements, policies, administrative practices, and the provisions of this Order.
SECTION 7. PROCEDURES.
This section provides basic procedures to be followed by heads of operating units in making facilities available for proprietary or non-proprietary research purposes, and managing their use by organizations and individuals outside of the Department (see paragraph 3.02, above). For facilities under their jurisdiction, heads of operating units, or their designees, shall:
a. Designate facilities qualifying for proprietary or non-proprietary research activities, and establish conditions and schedules for their use.
b. Institute periodic reviews to ensure that the invalid retention of excess property (facilities) is not being accomplished through the designation of certain facilities for research purposes under this Order.
c. Announce, as appropriate, the availability, issue governing rules, and approve each use of any facility designated for research activities.
d. Ensure that a written justification is prepared for each proposed use of a facility addressing the benefits to the Government and how conditions for use of the facility will be met.
e. Ensure that permanent records of facilities justifications, approvals, and use are maintained and available. Provide reports to the Department as requested.
f. Ensure that special conditions for proprietary use are met by either:
1. allowing the user sole access to data or other products obtained through use of the facility; or
2. to the extent there is unavoidable access by the Government, requiring that data or other products obtained by the Government will be returned to the user with the understanding that no act of retention has been made by the operating unit, or any other element of the Department.
g. Charge all users on a full-cost-recovery basis in accord with paragraph 3.03 of this Order.
h. Have authority to revoke use of a facility at any time.
i. Ensure the efficacy of and adherence to the written agreement covering the use of each facility. Initiate appropriate action in the event of a violation. Exhibit 1 of this Order provides a model "Memorandum of Agreement" for proprietary research. Appropriate changes should be made in the model for non-proprietary research consistent with paragraph 5.b. and 7.f. of this Order.
SECTION 8. EFFECT ON OTHER ORDERS.
This Order supersedes Department Administrative Order 217-19, dated November 13, 1986.
Signed by: Director for Administrative Services
Approved by: Chief Financial Officer and Assistant Secretary for Administration
Office of Primary Interest: Office of Administrative Services
EXHIBIT 1 DAO 217-19
MODEL MEMORANDUM OF AGREEMENT
Between the (name of operating unit "OU") and XYZ Corporation ("XYZ")
The OU and the XYZ do hereby enter into this Memorandum of Agreement under the terms and conditions set out below.
Pursuant to this agreement, the OU grants to XYZ a revocable license to undertake certain proprietary research through the use of (indicate facility or facilities to be used), hereinafter referred to as "facility," located at (indicate facility location). (Use "facility" or "facilities" below, as applicable.) Such license shall be nonexclusive and nontransferable.
a. XYZ shall be allowed to use the above-desired facility for the period commencing (fill in start date) and ending (fill in termination date). The facility is made available for use on the basis of non-interference with Government activities at the site. OU reserves the right to determine if and when use constitutes interference.
b. XYZ agrees to pay OU (fill in dollar amount) per day for the use of the above-described facility, and (fill in dollar amount) per day for the services of (fill in number) OU technicians needed to assist XYZ in the use and operation of that facility, and (fill in dollar amount) for supplies as follows: (specify)
c. XYZ agrees to pay for all damages to the facility that may arise out of XYZ's use and operation of the facility.
d. OU reserves the right to terminate this agreement at any time. XYZ agrees to discontinue its use of the facility upon written notice from the (title of OU head), or a designee of the (title of OU head)
e. XYZ agrees to hold OU, the Department of Commerce (the Department), and its officers and employees harmless from all liability that may arise out of the use and operation of the facility.
f. OU agrees to allow XYZ sole access to data and other products obtained through XYZ's use of the facility, except under conditions and to the extent where access thereto by OU is unavoidable. Data and other products obtained by OU under these conditions will be returned to XYZ when retention by OU is no longer required. XYZ will retain the entire right, title, and interest to any inventions resulting from the research performed under this Agreement.
g. If, in connection with the use and operation of the OU facility, XYZ discloses information to OU which XYZ deems confidential and proprietary, XYZ understands that OU is subject to the Freedom of Information Act and agrees that OU and the Department will not be held liable for the disclosure and/or copying of data or information which OU and the Department determine cannot be withheld lawfully, or which a court of competent jurisdiction requires disclosed.
h. XYZ agrees that any explicit reference to the OU, the Department, or the Federal government by XYZ regarding proprietary research conducted pursuant to this license shall be accompanied by a disclaimer to the effect that OU, the Department or the Federal government does not certify the proprietary research in any manner, and further agrees that no claim may be made to the traceability to OU, of the data or other products of such research.
i. XYZ agrees that the personnel it has selected to use or assist in using the above-described facility will abide by all regulations applicable to OU personnel regarding their conduct while on OU premises, and adherence to applicable building and restricted area access controls for a specific location(s). Such regulations and controls include 41 CFR 102-74 App., "Rules and Regulations Governing Conduct on Federal Property," and Department Administrative Order 207-12, "Foreign National Visitor, Guest and Assignee Access Program."
(Head of OU)
(NOTE: This model agreement does not cover all matters that may be appropriate for inclusion by operating units. Additional provisions may be needed to cover details in such areas as: manner of payment; any requirements for identification and qualification of persons who will operate the facility; and representations or disclaimers regarding the condition of the facility, including instrument accuracy.)