POLICY

A. Purpose

This policy describes the requirements and processes for all Memoranda of Understanding (MOU) in which Lawrence Berkeley National Laboratory (Berkeley Lab) is a participant.

B. Persons Affected

This policy applies to any Berkeley Lab employee who drafts, negotiates, or submits MOUs for review, approval, and execution.

C. Exceptions

None

D. Policy Statement

1. Overview and Essential Criteria
   
   1. Memoranda of Understanding (MOUs), sometimes referred to as Letters of Intent, are aspirational statements of intention describing the framework for cooperation and collaboration envisioned by Berkeley Lab and the other participant(s). MOUs are not legally binding agreements, nor are they the appropriate vehicles for obligating funds. All MOUs are to be signed by the Laboratory Director, unless signature authority has been delegated by the Laboratory Director. Delegations of signature authority from the Laboratory Director may be informally communicated by the Chief of Staff, who will notify the Office of Laboratory Counsel by e-mail of the Laboratory Director's decision to delegate.
   2. Laboratory MOUs must meet the following criteria:
      
      1. They must align with the strategic interests and policies of the United States and Berkeley Lab.
      2. They must be reviewed by the Office of Laboratory Counsel (OLC) as to their legal form, content, and consistency with Laboratory policies.
      3. In addition, if one or more of the participants is a foreign entity, they must undergo a process of due diligence to ensure that any counterintelligence and export control considerations are addressed, including that:
         
         1. The proposing division must notify the Office of Science Program Manager, or pertinent U.S. Department of Energy (DOE) funder, for the contemplated activity. In some cases, OLC may require written concurrence from the DOE funding source;
         2. The OLC must notify and obtain approval of the MOU from the DOE Berkeley Site Office (BSO) through its Site Office Counsel;
         3. The OLC must notify and obtain approval of the MOU from the local DOE Counterintelligence Office;
         4. The OLC must notify and obtain approval of the MOU from the Berkeley Lab Export Control Office;
         5. The OLC must notify and obtain approval of the MOU from the DOE Office of International Science and Technology Collaboration;
         6. The OLC must e-mail an electronic version of the completely executed MOU to the DOE by e-mail to: [email protected] and to the BSO in care of the Contracting Officer.
2. Review and Approval Process
   
   1. A Berkeley Lab employee who initiates or is presented with a written MOU must review the draft MOU for the following points:
      
      1. Is the MOU in alignment with the strategic interests and policies of the Laboratory and the United States, i.e., Are there equitable benefits between the United States/Berkeley Lab and the other participant(s)?
      2. If the MOU includes a foreign participant, has the MOU been shared with the DOE program sponsor?

      3. Does the MOU use language that conveys it is informal and nonbinding?

         Language That SHOULD NOT BE Used Because It Reflects an Intention to Be Legally Bound	Language That SHOULD BE Used Since It Does Not Reflect an Intention to Be Legally Bound
         Shall, will, agree(d), commit, must	Plan to, intend, expect, should, may, decided, determined
         Commitment, agreement	Understanding, statement, declaration
         Parties, party	Participants
         Agreement, treaty, convention, protocol	Statement, arrangement, mechanism
         Entry into force, valid	Date activities commence, today's date
         Amended	Modified, revised
         Terminated	Discontinued

      4. How is the Laboratory named in the MOU? The appropriate party to an MOU is named as, "The Regents of the University of California, manager and operator of the Lawrence Berkeley National Laboratory pursuant to Contract DE-AC02-05CH11231."
      5. Is there a clause that describes discontinuation of the MOU? For example, "The Participants may discontinue this MOU at any time by mutual written consent. Alternatively, a Participant that wishes to discontinue its participation in this MOU should endeavor to provide at least thirty (30) days written notice to the other Participants."
      6. Is there a finite term for the MOU? For example, "Cooperative activities under this MOU may commence upon signature of the Participants and continue for a five (5) year period, unless discontinued in accordance with paragraph _ of this MOU."
      7. Is there a provision that describes how the MOU may be continued? For example, "This MOU may be modified or cooperative activities hereunder extended for additional periods by mutual written consent of the Participants."
      8. Is there a statement that the document is not legally binding for either participant? For example, "This MOU does not create any legally binding obligations between the Participants."
      9. Is there a statement that the cooperation is subject to the availability of funding? For example, "The conduct of cooperative activities contemplated by this MOU is subject to the availability of funding, personnel, and other resources."
      10. Is there a statement indicating that all UC policies, Laboratory policies, and DOE regulations will be followed? For example, "Each participant should conduct the cooperation contemplated by this MOU in accordance with all applicable laws, regulations and other requirements to which it is subject, including by way of illustration and not by way of limitation, export control laws; environment health and safety laws and regulations; and international agreements to which its Government is a party."
      11. Is there a statement regarding responsibilities for costs incurred in participating in the MOU? For example, "Each participant is to be responsible for the costs it incurs in participating in cooperative activities under this MOU."
      12. Are there any export control issues? If so, what are they? A sample paragraph to consider including for this issue is: "In view of its management by an institution of higher education operating under the Fundamental Research Inclusion, Berkeley Lab hereby notifies the other participants that it has many foreign nationals who are students or employees to whom a transfer export-controlled items, including without limitation, technical information, systems, equipment, components, material or software ("items"), may be in violation of U.S. export control and sanction regulations. Accordingly, participants should not transfer to Berkeley Lab any items with a U.S. Export Control Classification Number ("U.S. ECCN") other than EAR99 under the Export Administration Regulations, without prior written authorization from Berkeley Lab's Export Compliance Office. Berkeley Lab bears no responsibility for unauthorized exports of non-EAR99 items by a party under this agreement to Berkeley Lab's foreign students or employees when such written authorization is not obtained."
      13. Is there anything in the MOU about the exchange of information? If so, consider changing it to the following: "The Participants do not anticipate the exchange of business-confidential information or the creation of intellectual property. If the Participants determine that a particular activity may lead to the exchange of business-confidential information or the creation of intellectual property, they should consult with each other and enter into an appropriate written agreement therefor."
   2. For MOUs that include a foreign-entity participant, the proposing division must notify the Office of Science Program Manager, or the pertinent DOE funder, of the proposed collaborative activity.
   3. All MOUs must be referred to the OLC, which will review them as to their legal form, content, and consistency with Laboratory policies. The OLC also is responsible for performing restricted party screening for all non-LBNL participants in the MOU.
   4. If the MOU includes intellectual property issues, the OLC may direct a copy to the Department Head of Technology Transfer and Intellectual Property Management, who will perform the review and advise as to any potential legal, intellectual property, or other issues presented by the draft MOU.
   5. If there is a foreign language version of the MOU, the proposing division is responsible for supplying the OLC with a draft of the MOU in both English and the foreign language. The U.S. Department of State must review and accept the foreign-language version and the division will be responsible for the cost of that review.
   6. When language of the draft MOU is acceptable to all participants and has been approved by all necessary authorities — including, for MOUs with foreign-entity participant, Site Counsel for BSO, the DOE Counterintelligence Office, the Berkeley Lab Export Compliance Officer, and the DOE Office of Science Advisor for International Programs — the OLC will submit the MOU to the Laboratory Director for review, approval, and signature, if appropriate.
3. Post-execution Handling: The division supporting the MOU is responsible for providing the OLC with an original of the executed MOU. If the MOU includes a foreign participant, the OLC is responsible for e-mailing an electronic version of the completely executed MOU to DOE at [email protected], and to the BSO in care of the Contracting Officer.

E. Roles and Responsibilities

F. Definitions/Acronyms

G. Recordkeeping Requirements

The Office of Laboratory Counsel shall retain a completely executed original of all MOUs.

H. Implementing Documents

I. Contact Information

Chief Laboratory Counsel
Office of Laboratory Counsel

J. Revision History

DOCUMENT INFORMATION

Source Requirements Documents

• 5/14/12 Memorandum from Steven Chu re: Laboratory Memoranda of Understanding (MOUs) with Foreign Partners
• Frequently Asked Questions: DOE National Laboratory MOUs with Foreign Partners

Implementing Documents