[Code of Federal Regulations]

[Title 37, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 37CFR401.4]



[Page 701-702]

 

              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS

 

  CHAPTER IV--ASSISTANT SECRETARY FOR TECHNOLOGY POLICY, DEPARTMENT OF 

                                COMMERCE

 

PART 401_RIGHTS TO INVENTIONS MADE BY NONPROFIT ORGANIZATIONS AND SMALL 

BUSINESS FIRMS UNDER GOVERNMENT GRANTS, CONTRACTS, AND COOPERATIVE 

AGREEMENTS--Table of Contents

 

Sec.  401.4  Contractor appeals of exceptions.



    (a) In accordance with 35 U.S.C. 202(b)(4) a contractor has the 

right to an administrative review of a determination to use one of the 

exceptions at Sec.  401.3(a) (1) through (4) if the contractor believes 

that a determination is either contrary to the policies and objectives 

of this chapter or constitutes an abuse of discretion by the agency. 

Paragraph (b) of this section specifies the procedures to be followed by 

contractors and agencies in such cases. The assertion of such a claim by 

the contractor shall not be used as a basis for withholding or delaying 

the award of a funding agreement or for suspending performance under an 

award. Pending final resolution of the claim the contract may be issued 

with the patent rights provision proposed by the agency; however, should 

the final decision be in favor of the contractor, the funding agreement 

will be amended accordingly and the amendment made retroactive to the 

effective date of the funding agreement.

    (b)(1) A contractor may appeal a determination by providing written 

notice to the agency within 30 working days from the time it receives a 

copy of the agency's determination, or within such longer time as an 

agency may specify in its regulations. The contractor's notice should 

specifically identify the basis for the appeal.

    (2) The appeal shall be decided by the head of the agency or by his/

her designee who is at a level above the person who made the 

determination. If the notice raises a genuine dispute over the material 

facts, the head of the agency or the designee shall undertake, or refer 

the matter for, fact-finding.

    (3) Fact-finding shall be conducted in accordance with procedures 

established by the agency. Such procedures shall be as informal as 

practicable and be consistent with principles of fundamental fairness. 

The procedures should afford the contractor the opportunity to appear 

with counsel, submit documentary evidence, present witnesses and 

confront such persons as the agency may rely upon. A transcribed record 

shall be made and shall be available at cost to the contractor upon 

request. The requirement for a transcribed



[[Page 702]]



record may be waived by mutual agreement of the contractor and the 

agency.

    (4) The official conducting the fact-finding shall prepare or adopt 

written findings of fact and transmit them to the head of the agency or 

designee promptly after the conclusion of the fact-finding proceeding 

along with a recommended decision. A copy of the findings of fact and 

recommended decision shall be sent to the contractor by registered or 

certified mail.

    (5) Fact-finding should be completed within 45 working days from the 

date the agency receives the contractor's written notice.

    (6) When fact-finding has been conducted, the head of the agency or 

designee shall base his or her decision on the facts found, together 

with any argument submitted by the contractor, agency officials or any 

other information in the administrative record. In cases referred for 

fact-finding, the agency head or the designee may reject only those 

facts that have been found to be clearly erroneous, but must explicitly 

state the rejection and indicate the basis for the contrary finding. The 

agency head or the designee may hear oral arguments after fact-finding 

provided that the contractor or contractor's attorney or representative 

is present and given an opportunity to make arguments and rebuttal. The 

decision of the agency head or the designee shall be in writing and, if 

it is unfavorable to the contractor shall include an explanation of the 

basis of the decision. The decision of the agency or designee shall be 

made within 30 working days after fact-finding or, if there was no fact-

finding, within 45 working days from the date the agency received the 

contractor's written notice. A contractor adversely affected by a 

determination under this section may, at any time within sixty days 

after the determination is issued, file a petition in the United States 

Claims Court, which shall have jurisdiction to determine the appeal on 

the record and to affirm, reverse, remand, or modify as appropriate, the 

determination of the Federal agency.