[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR401.4]

[Page 767-768]
 
              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 768]]

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.