NSF Important Notice #91

The following is our transcription of the text of NSF Important Notice number 91 of March, 1983, concerning the use of NSF-funded University Instrumentation for the benefit of third-party organizations. We have tried to make it accurate, but we cannot be liable to you if there is a copying error we have not found.

National Science Foundation

Office of the Director

Washington, DC. 20550

Notice No. 91

March 11. 1983

IMPORTANT NOTICE
TO
PRESIDENTS OF UNIVERSITIES AND COLLEGES
AND HEADS OF OTHER
NATIONAL SCIENCE FOUNDATION
GRANTEE ORGANIZATIONS

Subject: Principles Related to the Use and Operation of National Science Foundation- Supported Research Instrumentation and Facilities

Over the past several years the National Science Foundation (NSF) has considered the development of a statement of principles and guidelines for the use and operation of NSF-supported research instrumentation and facilities. The following statement on "Principles Related to NSF-Supported Research Instrumentation and Facilities" was unanimously adopted by the National Science Board at its 241st meeting on January 21, 1983:

The National Science Foundation seeks the maximum productive use of the Nation's scientific instrumentation and research expertise. Ensuring that the highest quality instrumentation, facilities, and services are available to scientific users, both academic and industrial, is a key requirement , as are harmonious relations and cooperation between industry and universities. Private research and testing laboratories, as well as university, government, and industrial laboratories, have a contribution to make.

The National Science Board recognizes that there may be circumstances where NSF grantees use NSF-supported research instrumentation to provide services in commerce for a fee, to an extent that such practice (1) detracts from the performance of their obligation under the grant, and/or (2) may have a material and deleterious effect on the success of private companies engaged in the provision of equivalent services. It is contrary to the NSF's intent for grantees to use NSF-supported research instrumentation or facilities to provide services for a fee in direct competition with private companies that provide equivalent services.

The attachment provides additional guidelines in this area.

(Signed) Edward A. Knapp
Director

Attachment

Distribution E

Important Notice 91

ATTACHMENT

GUIDELINES RELATED TO THE USE AND OPERATION OF NATIONAL SCIENCE FOUNDATION-SUPPORTED RESEARCH INSTRUMENTATION AND FACILITIES

Introduction

The National Science Foundation Act of 1950, as amended, directs the National Science Foundation (NSF) "to strengthen scientific research potential" of the Nation. The NSF strives to support and stimulate the creation of new scientific knowledge, to encourage the publication and distribution of the results of research performed under its grants and to foster the education and training of scientific and engineering personnel. The NSF evaluates its programs in light of their ultimate contribution to the Nation's citizens and the national economy.

NSF support for scientific and engineering research and for the purchase of research instrumentation and facilities has centered on academic institutions. Under certain conditions support is also provided for research in industry and in non-academic not-for-profit organizations. Collaborative research efforts between academic and industrial researchers are strongly encouraged.

In the past, concerns about use of NSF-supported instrumentation have been raised by several groups.

University scientists and engineers, asking whether research instrumentation provided to them with NSF support may be used by or for the benefit of commercial firms, and - if such use is approved- under what terms and financial arrangements.
Industrial scientists and engineers, with interest in using such instrumentation, particularly at major facilities, and supporting or cooperating with university scientists and engineers doing research that uses the instrumentation.
Commercial research and service laboratories, concerned that NSF-supported research instrumentation has been used on occasion by university personnel to provide services that compete with commercial firms.
Commercial research and service laboratories, with interest in being considered by the NSF as providers of instrumentation or services for NSF-supported research or as managers for NSF-supported user facilities.

Access to modern research instrumentation is essential to the health of the Nation's science and engineering enterprise. Such access can provided by dedicated equipment at a research institution, by common or shared in-house research facilities, or by an outside source on a lease or service basis.

Given the high cost of modern research instrumentation and facilities, it is important that access be provided in the most efficient manner and that available instrumentation and facilities be as fully utilized as practical. NSF therefore encourages the sharing of instrumentation -both among the academic, industrial, and public sectors.

For-profit organizations may wish to use NSF-supported research instrumentation and facilities at academic and not-for-profit institutions. While access to highly specialized capabilities of for-profit organizations may also be sought by academic and not-for-profit institutions, research instrumentation at for-profit institutions usually involves no NSF monies. Despite our preferences for sharing of instrumentation, it is contrary to the NSF's intent for grantees to use NSF-supported research instrumentation or facilities to provide services for a fee in direct competition with private companies that provide equivalent services.

Guidelines

These guidelines should assist NSF grantees, contractors, and others in matters related to the use and operation of instrumentation and facilities obtained with NSF support. These guidelines are directed to academic and other institutions that receive NSF support, in their relationships with or affecting the for-profit sector of the scientific and engineering community. The guidelines do not apply to research relationships between or among academic institutions, Government-owned facilities or centers, or Federal, state, or local governmental organizations.

NSF emphasizes research in the academic sector because such research serves the dual NSF mission of supporting fundamental research and educating future scientists and engineers. This means , in many cases, that there are distinct advantages to supporting research instrumentation and facilities sited on the campuses.
However, in some cases the research and educational values of having such instrumentation and facilities in the academic environment may be outweighed by cost saving or operating efficiencies that can be achieved by having similar instrumentation or facilities provided or operated by non-academic organizations. This may be particularly true where specialized management and maintenance personnel are required, or where the principal use of an instrument or facility is in standardized testing or measurement that adds little to the educational value of the research experience. At times a non-academic organization may have technical or scientific capabilities superior to those available in academia. Under any of these circumstances, NSF grantees and contractors are encouraged to use services provided by non-academic organizations.
Proposals to establish and operate NSF-supported research facilities for fundamental research and educational purposes usually will be considered from all sources: academic, other not-for-profit, and for- profit organizations. In considering such proposals, NSF will give due weight to the relative advantages of the management and technical capabilities of each applicant and to the potential differences in student access and availability for educational purposes that each applicant can provide.
NSF-supported instrumentation or facilities may be used by or for the for-profit sector only when such use does not constitute provision of services equivalent to services available on a commercial basis. Equivalent commercial services are considered not available when the instrumentation or facilities to be used in performing them are unique, e.g., no commercial firm willing to provide the service possesses either identical instruments or instruments with essentially equal capabilities. Such uniqueness also may be due to the availability of unique personal or organizational expertise or by the proximity of the instruments in the case of fragile or perishable specimens.

However , even if the facility or instrumentation is unique, it should be recognized that extensive or repeated use by for-profit researchers may compromise the purposes for which the facility or instrumentation was provided. Similarly, a series of individual cases that taken singly would have little or no impact may cumulate to have substantial impact for commercial suppliers of comparable services.

Although each case should be judged individually, some examples may help clarify what is expected:

Research requiring the use of a synchrotron light source is not presently likely to entail questions of existing commercial capabilities or commercial competition.
A small firm in the southeast asks a university within a half-day's drive to perform a surface analysis on experimental material. The specimen is fragile or perishable and must be hand carried. The work will require one hour of instrument time. No repeat is expected. The nearest comparable commercial instrumentation is approximately the same distance away. The university should decide to refuse the request of the small company.
The same conditions prevail, except that the nearest comparable commercial instrumentation is in Michigan. The small firm has checked with available express parcel delivery services, and has concluded that the specimen would be at risk because of its fragility or perishability and must be hand carried. Considering the one hour of instrument time for an analysis that is not expected to be repeated, together with the travel time required to hand carry the sample, the university could decide to provide the requested assistance in this case.

In considering whether equivalent services are available on a commercial basis in the United States, a facility or instrumentation operator should assure that a reasonable search had been conducted for such services in the commercial market. Such a search might include contact by the operator with knowledgeable people in the scientific field involved, vendors of similar testing services, or other researchers. Alternatively, the operator might rely on written statements by the applicant for-profit organization that it had canvassed suppliers of similar services and that it was unable to obtain equivalent services for reasons set forth. The operator might require the applicant to check with a sufficient number sources and document the unavailability or describe the uniqueness of the facilities to the operator's satisfaction in terms of performance limits, expertise, proximity and perishability, or other legitimate distinguishing features.

If no equivalent services are commercially available, then such services may be made available to for- profit users at the option of the holder of the NSF-supported instrumentation of facility at a fee to be negotiated between the holder and the proposed user. In determining appropriate fees consideration should be given to the nature of the research or services; whether the results will be publicly available, or proprietary; and the estimate of full cost of providing such services.
The NSF does not expect questions of uniqueness or appropriate fees to be submitted to it for consideration or approval. NSF will not entertain challenges or protests on individual cases. Any disagreement should be handled in accordance with each instrumentation or facility operator's own procedures. Before use of NSF-supported instrumentation or facilities by or on behalf of for-profit organizations, operator institutions should have policies and mechanisms for properly addressing the principles and guidelines contained in this statement with respect to making reasonable judgments on "uniqueness" and "equivalency" and with respect to providing fair and adequate consideration of challenges to such findings.
Funds generated by charges for the use of unique NSF-supported instrumentation or facilities by for- profit organizations should be used by the institution holding the instrumentation or facilities to offset the cost of services, to support the maintenance or operation of the instruments, or for the further research or education in the sciences or engineering unless otherwise provided by the NSF grant.
NSF strongly encourages collaborative research efforts between academic and industrial scientists and engineers. Such research is regarded as though it were solely academic for purposes of these guidelines. However, research is regarded as collaborative only if both the academic and industrial researchers have real and substantial personal intellectual involvement in joint planning and conduct of experiments, observations, or the like. Arrangements in which the academic researcher provides little beyond access to university based instrumentation or facilities are not collaborative research as intended here, nor is private consulting by an academic researcher. NSF recognizes that collaborative research efforts may sometimes involve acquisition of an instrument or facility using funds provided by a for-profit organization together with funds provided by NSF, under an agreement which provides the for-profit sponsor with special access or other benefits with respect to the instrument or facility. NSF generally encourages such shared funding and does not intend that these guidelines normally be an impediment to such arrangements. However, where the primary interest of the for-profit sponsor in such an arrangement is acquisition of services equivalently available from the commercial sector, these guidelines apply.

March 1983

A text copy of this document is available on application.

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