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401.4

Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 / Proposed Rules Amended
401.5 Modification and tailoring of clauses.

a Agencies should complete the blank in paragraph g2 of the clauses at 401.14 in accordance with their own or applicable government-wide regulations such as the Federal Acquisition Regulation. If the funding agreement is a grant or cooperative agreement, paragraph g3 of the clause may be deleted.
b Agencies should complete paragraph l of the clause in 401.14, Communication by designating a central point of contact for communications on matters relating to the clause. Agencies may also include additional information on communications in paragraph l of the clause in 401.14.

g If the contract is for the operation of a government-owned facility, agencies may add paragraph f6 to the clause at 401.14 with the following text:
The contractor shall establish and maintain active and effective procedures to ensure that subject inventions are promptly identified and timely disclosed and shall submit a description of the procedures to the contracting officer so that the contracting officer may evaluate and determine their effectiveness.
7. Amend 401.6 as follows:
a. Remove the period from the end of paragraph a introductory text and add in its place a colon;
b. Add paragraphs a1 through 7;
c. Redesignate paragraph b as paragraph a1 and revise the newly redesignated paragraph a1;
d. Redesignate paragraphs c and d as paragraphs a2 and 3;
e. Redesignate paragraph e as paragraph a4 and revise the newly redesignated paragraph a4;
f. Redesignate paragraphs f through h as paragraphs a5 through 7
respectively;

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g. Redesignate paragraph i as paragraph b;
h. Redesignate paragraph j as paragraph c and revise the newly redesignated paragraph c;
i. Redesignate paragraph k as paragraph d;
j. Add a new paragraph e;
k. Redesignate paragraph l as paragraph f.
The revisions and additions read as follows:

5. Amend 401.4 as follows:
a. Remove 35 U.S.C. 202b4 and add in its place 35 U.S.C. 202b3 in the first sentence of paragraph a; and b. Remove United States Claims Court and add in its place United States Court of Federal Claims in the last sentence of paragraph b6.
6. Amend 401.5 as follows:
a. Revise paragraphs a and b;
b. Remove paragraph f and redesignate paragraphs g and h as paragraphs f and g;
c. Revise the newly redesignated paragraph g.
The revisions read as follows:

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401.6

Exercise of march-in rights.

a
1 Whenever an agency receives information that it believes might warrant the exercise of march-in rights, before initiating any march-in proceeding, it shall notify the contractor in writing including electronic means of the information and request an informal consultation and information relevant to the matter with the contractor to understand the nature of the issue and consider possible actions other than exercising march-in rights. In the absence of response from the contractor to the agency request for informal consultation within 30 days, the agency may, at its discretion, proceed with the procedures below. If informal consultation occurs within 30
days, or later if the agency has not initiated the procedures below, then the agency shall, within 120 days after informal consultation, either notify the contractor of the initiation of the procedures below with a summary of the efforts taken, or notify the contractor, in writing, that it will not pursue march-in rights on the basis of the available information.
2 A march-in proceeding shall be initiated by the issuance of a written notice by the agency to the contractor and its assignee or exclusive licensee, as applicable and if known to the agency, stating that the agency is considering the exercise of march-in rights. The notice shall state the reasons for the proposed march-in in terms sufficient to put the contractor on notice of the facts upon which the action would be based and shall specify the field or fields of use in which the agency is considering requiring licensing. The notice shall advise the contractor assignee or exclusive licensee of its rights, as set forth in this section and in any supplemental agency regulations. The determination to exercise march-in rights shall be made by the head of the agency or his or her designee.
3 Within 30 days after the receipt of the written notice of march-in, the contractor assignee or exclusive licensee may submit in person, in writing, or through a representative,
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information or argument in opposition to the proposed march-in, including any additional specific information which raises a genuine dispute over the material facts upon which the march-in is based. If the information presented raises a genuine dispute over the material facts, the head of the agency or designee shall undertake or refer the matter to another official for factfinding.
4 Fact-finding shall be conducted in accordance with the 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 present. A transcribed record shall be made and shall be available at cost to the contractor upon request. The requirement for a transcribed record may be waived by mutual agreement of the contractor and the agency. Any portion of the marchin proceeding, including a fact-finding hearing that involves testimony or evidence relating to the utilization or efforts at obtaining utilization that are being made by the contractor, its assignee, or licensees shall be closed to the public, including potential licensees. In accordance with 35 U.S.C.
202c5, agencies shall not disclose any such information obtained during a march-in proceeding to persons outside the government except when such release is authorized by the contractor assignee or licensee or otherwise required by law.
5 The official conducting the factfinding 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 determination. A copy of the findings of fact shall be sent to the contractor assignee or exclusive licensee by registered or certified mail. The contractor assignee or exclusive licensee and agency representatives will be given 30 days to submit written arguments to the head of the agency or designee; and, upon request by the contractor oral arguments will be held before the agency head or designee that will make the final determination.
6 In cases in which fact-finding has been conducted, the head of the agency or designee shall base his or her determination on the facts found, together with any other information and written or oral arguments submitted by the contractor assignee or exclusive licensee and agency representatives,
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