Purpose of HHS Competes
History of HHS Competes
Why it Works
Table of Contents
- Define the problem. Defining the specific problem(s) you wish to solve will help guide the approach and competition type. You can do this by convening one or more meetings with a group of experts, use a Federal Register Notice to collect wide input, and/or ask for help from the federal prize community. If you would like assistance, please write to firstname.lastname@example.org.
- Justify the use of a prize competition (to yourself and to others) to address the identified problem(s). There are a number of advantages that competitions offer over alternatives. You should be clear why a competition best fits your situation and how solutions will be utilized. See OMB guidance on use of challenges to promote open government.
- Does a prize competition provide what cannot otherwise be effectively accomplished through a grant, contract, or cooperative agreement?
- Is the goal a specific achievable outcome or a more general improvement? Are they clearly defined and realistic?
- How will this prize competition benefit or advance my program/close a gap?
- How will the prize stimulate innovation that benefits the agency’s mission?
- Can it be achieved in a reasonable timeframe?
- How will the results of the competition be used and integrated into the Department, projects and available to end users?
- How will you measure success as compared to other approaches to problem solving?
- Decide the legal authority under which the competition will be run. Most competitions at HHS will be run under the COMPETES authority, but there may be exceptions. Consult your Office of General Counsel for more information.
- Explore options for collaborations or partnerships. The America COMPETES Act provides options for collaboration on prizes, notably with other federal agencies and non-profits. Partnerships can further leverage the impact of a competition.
- Decide how you will administer the competition. Whether you want a vendor to manage most of the process, do everything yourself, or anywhere in between, you have a lot of flexibility on how to plan, manage, and execute the competition. Refer to the Toolkit to get started.
- Decide on prize incentive. Prize incentive is a key component to drive quality participation. Prizes need not be monetary. If the prize is more than $500,000, Secretarial approval is required. See these instructions on what to include and how to submit an approval packet.
- Are the target problem solvers likely to contribute their own resources to work on the problem and risk not winning?
- Can the winner’s submission be marketed and commercialized?
- What intellectual property, if any, shall you seek to gain and use from the prize competition?
- Identify the source of prize and vendor funds. Remember, prizes are not contracts, grants, or cooperative agreements. They are a distinct procurement vehicle. You have many options:
- Gift funds
- Partnerships with other agencies or organizations
The timing and payment of prizes depends on the source of funds. For example, for federal appropriated funds, the availability and use of those funds will depend on the appropriation. The COMPETES Act and ASFR’s Competition Award Policy provide rules about when and how funds from outside sources must be secured and treated. Consultation with your agency’s budget office is suggested. Consult with your agency’s financial officer about funding for your challenge competition and specific requirements for the treatment of appropriated funds and gifts. ASFR’s Competition Award Policy is also available for reference.
- Define your target audience and eligibility criteria for participation. Defining your target audience will guide your marketing, communication, and prize design strategy. Eligibility criteria should adhere to COMPETES requirements.
- Define the judging criteria and identify the judges. Judging criteria helps solvers produce the solutions you seek. Note that COMPETES defines judges as those persons who “select the winner or winners of a prize competition,” and the choice of judges must adhere to HHS Competition Judging Guidelines. Additionally, you can choose advisors to provide recommendations on winners. This is a great way involve key external stakeholders. You may wish to consult your Designated Agency Ethics Official for ethical issues associated with the selection of judges and required forms that must be filled out. View a list of HHS agency DECs.
- Clarify your intellectual property requirements. There are a number of options available to managers. Decisions should consider the competition goals, the target audience, and the post-competition plan. Refer to the Intellectual Property section of the FAQ.
- Identify the source of prize and vendor funds. If you plan to offer a purse prize, funding strategy must be considered. The timing and payment of prizes depends on the source of funds. For example, for federal appropriated funds, the availability and use of those funds will depend on the appropriation. The COMPETES Act and ASFR’s Competition Award Policy provide rules about when and how funds from outside sources must be secured and treated. Consultation with your agency’s budget office is suggested. Consult with your agency’s financial officer about funding for your challenge competition and specific requirements for the treatment of appropriated funds and gifts. ASFR’s Competition Award Policy is also available for reference.
- Identify the Award Approving Official. Determine who within your agency will serve as the Award Approving Official (e.g., OPDIV head or direct report). If the AAO is not the OPDIV head, make sure that the awarding authority has been appropriately sub-delegated. Note that the eligibility of agency employees to participate in the challenge may be affected by the choice of AAO. For competitions with total prize awards above $500,000, the appropriate OPDIV official will still serve as the Award Approving Official.
- Decide on the required liability insurance. For competitions run under the COMPETES authority, the law requires the agency heads to determine in writing the amount of required liability insurance (even if the amount is zero) and develop a liability release and indemnification agreement for participants to see. See FAQs for more information.
- Consider Section 508 compliance. Look through the FAQ on issues related to ensuring compliance with Section 508 of the Rehabilitation Act in the context of competitions.
- Choose how you will plan to post and communicate competition information. It is strongly recommended that you post information for participants on a website; you may use challenge.gov exclusively, or consider using a commercial competition platform or create your own website.
- Consider seeking additional planning resources:
- Consult the OMB guidance on challenge planning for general counsel and chief information officers
- Read a list of challenge management firms on the GSA schedule.
- Reach out to the federal-wide challenge community listserv. For access to the listserv, contact Karen Trebon at GSA.
- Consult the GSA Challenge site
- Consult NASA’s Center of Excellence for Collaborative Innovation site
- Consult the GovLab Wiki
- Reach out to the HHS Open Innovation Manager Sandeep Patel
- Reach out to the HHS Competes Yammer group
- Draft and obtain agency clearance of Federal Register Notice (FRN). Craft a Federal Register Notice announcing the challenge and seek approval from your agency head or individual delegated this authority (this step is required for challenges issued under the COMPETES Act authority). It is recommended that you use HHS’s Federal Register template. If total prize amount is more than $500,000, send a draft Federal Register notice and accompanying materials via the Exec Secretariat for the Secretary’s approval of Challenges.
- Submit HHS Competition Award Obligating Document (CAOD). As soon as the competition is announced in the Federal Register, your budget officer must record the obligation of funds using the HHS Competition Award Obligating Document (CAOD). There are explicit rules outlined ASFR’s Competition Award Policy on how appropriated funding must be treated, how gift funding must be handled, and how payment obligations should occur.
- Determine what information solicited from applicants. Information solicited from applicants beyond what is needed for communication may be subject to Paperwork Reduction Act guidelines (OMB FAQs; GSA Guidance). Information on how a solution was reached or what resources were used may fall under the HHS Generic Clearance. Personally identifiable information (PII) issues should also be considered (GSA Guidance).
- Complete the pre-challenge questionnaire. During the planning phase of your competition, fill out the Pre-challenge Questionnaire. Send any questions to ASA/OBMT via email@example.com. This information will be used in compiling HHS’s annual report on challenges, which will be compiled by OSTP and sent to the Congress. When you have completed your challenge, there will be a post-challenge questionnaire. Completing both of these surveys will satisfy the reporting requirements.
Launch & Management
- Publish the Federal Register Notice. Note that the year in which the Federal Register Notice is published determines the fiscal year from which prize money is obligated; the notice must be published prior to posting on challenge.gov or any other public website.
- Post on Challenge.gov. COMPETES requires that all federal competitions must be posted on challenge.gov, the primary federal listing site. You can register and post here or contact firstname.lastname@example.org for assistance. For additional guidance, consult the HHS Challenge.gov governing principles.
- Declare the judges. Ideally, judges should be announced by the launch of the challenge; judges must be declared by the time the challenge closes. The selection of judges, and their “employment” status relative to HHS, should be guided by HHS policy as well as your agency’s preferences. Challenge managers must keep a record of the decision-making process used to select finalists as the documents involved in the judging process are subject to Freedom of Information Act and record retention laws.
- Promote the competition. Consider using a variety of communication channels to promote your competition, including agency press releases, promotional activities at conferences or meetings, email blats, social media, or a webinar to attract solutions providers to your challenge. HHS may be able to provide additional promotional tools through departmental communication channels. See the toolkit for more information.
- Ensure winners are eligible. Prior to announcing awards, the awarding agency must check the System for Award Management to see if any prospective awardees have been suspended or disbarred. If a potential awardee is on the list, challenge managers should check with HHS Office of General Counsel or the Deputy Assistant Secretary for Grants and Acquisition Policy and Accountability before proceeding.
- Announce the winner. In addition to announcing winners on the competition website, your agency may wish to issue a press release announcing the winner. Follow your agency press release processes. You may also consider announcing winners at a relevant conference or other event.
- Pay the Award. To process payments for competition awards, the awarding agency must complete Standard Form 1034 and the associated supplemental documents(the SF 1034 package). Challenge managers are to provide the HHS Payment Information Form to awardees and submit this information into the appropriate accounting system via the agency budget officer.
- Complete the post-challenge questionnaire. Within five days of selecting the challenge winner, challenge managers shall complete the Post-challenge Questionnaire. Send any questions to ASA/OBMT via email@example.com. This information will be used in compiling HHS’s annual report on challenges, which will be compiled by OSTP and sent to the Congress. Note that once you finish the post-challenge questionnaire, you have no additional reporting requirements other than what your agency may require.
- Seek sustainability. To maximize the value of your competition, consider ways to remain engaged with participants, either by following up with winners, providing them access to partners to continue work, or letting them know about additional opportunities of interest.
- Implementation of the Federal Prize Authority: Progress Report (March 2012) – On April 10, 2012, OSTP released a comprehensive report detailing the use of prizes and competitions by federal agencies to spur innovation and solve grand challenges.
- Center for Excellence for Collaborative Innovation – serves as a convening body to harness and redistribute the collective experience of all participating federal agencies regarding best practices in collaborative and distributed innovation, including challenge competitions.
- ONC’s Investing in Innovations (“i2″) – Website created in conjunction with Health 2.0
- “And the Winner is…” (PDF) – Report by McKinsey & Company that explores how incentive prizes are a unique and powerful tool and discusses 6 prize archetypes
- Promoting Innovation through Challenges – On April 30, 2010, the White House and the Case Foundation hosted an event on promoting innovation.
- President Obama’s updated Strategy for Innovation – 2011 – Report by the Obama Administration on enhancing the United States’ capacities to innovate.
Tool Kit Overview
Table of Contents
I would like a vendor or partner to manage my competition
This option is for challenge managers that plan to partner with other agencies or organizations or hire contractors to manage the whole challenge. The benefit of this option is that it requires minimal work on the manager’s end. However, keep in mind that hiring vendors will require contracting. Use the following resources to learn how you can find vendors or organizations to help run your challenge.
Hire a vendor.
- HHS Competes Strategic Sourcing Vehicle: If you are an HHS agency, you can place a call order against the HHS Competes Strategic Sourcing Vehicle, which provides access to a set of prize management vendors. Please take a look at our ordering guide for information on the BPA and how to place orders.
- If you are a federal agency outside HHS and would like to use this vehicle through an interagency agreement (IAA), please send the following to Don dot Hadrick AT PSC dot HHS dot GOV and Valerie dot Pickett AT PSC dot HHS dot GOV:
- Form 7600A and 7600B
- Call Order Information, which should include the following (see template here):
- A description of the work to be performed;
- The estimated period of performance or required completion date;
- Required deliverables;
- Progress reporting requirements;
- Security requirements, if applicable;
- Call Order type (fixed-price/labor-hour);
- Designated base work site;
- Any other special requirements; and
- The date and time by which the quote is due (minimum 72 hours)
- GSA 541.4G Schedule– This vendor list is explicitly dedicated to prize competition management services. If you would like to hire one of these companies, please discuss the need with your contracting office. There are a variety of options to hire a vendor through the GSA Schedule. Expect the process to take several months.
- E.g. FDA Food Safety Challenge was designed with the support of Luminary Labs, which is on the Schedule.
- HHS has also worked with Sensis, TopCoder, Innocentive, Capital Consulting Corporation, and Health2.0.
- Go beyond GSA Schedule. If none of the expertise you seek is available on the GSA Schedule, consider widening the scope of your procurement. Depending on the cost, you may be able to take advantage of simplified acquisition processes. Please discuss the need with your contracting office.
- Under $3,000 – Micropurchase threshold; can be purchased without competitive procurement and through your purchase card.
- Over $3,000 and Under $150,000 – Simplified Acquisition Threshold – can be purchased by comparing among 3 quotes from target providers
- Over $150,000 – requires competitive procurement. Expect the process to take several months.
Work with another federal agency.
- There are several options to work with other federal agencies to design and manage a prize competition. Through an inter-agency agreement (IAA), you can collaboratively administer and fund a prize competition with a willing partner in another agency. For example, NASA’s Center of Excellence for Collaborative Innovation (CoCEI) often works with other agencies on prizes. If you are seeking a federal collaborator, consider reaching out the federal prize/challenge community of practice listserv (contact tammi [dot] marcoullier AT gsa [dot] gov for access) for leads. An IAA will facilitate the process of using funds from more than one office for the prize award.
- Example of an IAA: CMS Provider Screening Innovator Challenge
- You can also consider an option to collaborate with another federal agency without the transfer of any funds. In this case you can collaborate in several ways:
- Collaborate on the design, administration, and/or branding of the prize while prizes are funded by only one of the sponsors.
- Collaborate so that each agency can make distinct awards under a co-branded prize competition.
Work with a non-profit partner.
- The America COMPETES Act allows agencies to enter into an agreement with a private, non-profit entity to administer prize competitions. For example, you may work with a non-profit foundation to pool prize funds from both public and private funds. They may also administer the prize on your behalf. There are also options to accept gift funds from private sources for prize competitions.
- The Breast Cancer Startup Challenge was run with two non-profit partners. One organization funded the prizes while the other administered the challenge. This was not an America Competes Challenge because no government money was issued.
I want to design and manage the competition myself
This option is for challenge managers who want to run the challenge themselves using existing tools. Many of these tools are free or low-cost. With this option, you can mix and match a variety of tools to run your challenge.
Competition web platform
Platforms are integrated websites for finding solvers, collecting and evaluating submissions, and/or announcing winners.
- GSA Challenge.gov Platform – GSA has built a word-press platform specifically designed to meet most of the basic competition platform needs. It’s free, customizable, and easy to use.
- Niche commercial platform sites – If the solution you are seeking is a specific, simple item like a logo, design, idea, or something else, consider simply placing an order on one of the many commercial crowdsourcing platforms. Most cost less than the micropurchase threshold and can be bought without a time-consuming procurement. Graphic design, video production, software code development, among several other services can be crowdsourced using these online crowdsourcing platforms.
Different from a platform (and most often used in conjunction), competition websites are created to house the details of your competition. This can be a single page on your agency’s site or a full-fledged custom website. Websites can be built in a variety of environments and styles. Listed below are some free suggestions and examples of open-source web content management systems, through which you can publish fully functioning websites. There are other paid services and subscriptions for more user-friendly site platforms.
- Build a dedicated page within your agency’s website. This can simply be a page describing the competition details or a more functional site with the competition registration integrated within.
- Build a custom website from the many commercial tools out there. Below are some free examples of free website builders and open source web development systems with varying levels of skill level required.
- Wix (easy) – a user-friendly free website builder.
- There are other highly functional paid subscription website builder services that you can use for your competition.
- WordPress (intermediate) – a widely-used platform for building custom websites and blogs.
- Drupal (advanced) – a robust open-source content management platform.
- Wix (easy) – a user-friendly free website builder.
- You will also need to ensure that the website and related materials are Section 508 compliant. Use the 508 Website Checklist to ensure that your site is compliant.
Online Collaboration Tools
Tools to help your participants find each other and collaborate.
- IdeaScale – ideation and voting platform, available to HHS through an existing contract. Contact Sandra[dot]Scarbrough@nih[dot]gov for more details about placing an order.
- Doodle – Doodle simplifies scheduling complexities with a large group.
- Whenisgood – simple poll tool to find out the availability of individuals; find out when mentors are free
Competition Rules Templates
Below are a basic template and some real examples from past HHS competitions. You may adjust the rules to your agency’s policies, as long as they are consistent with statute and HHS policy.
- HHS Federal Register Template
- Ideation – NIH Detect Bias in Peer Review Challenge
- Software Development – ONC Data Supporting Decisions Challenge
- Scientific – FDA Food Safety Challenge
Marketing, Event Management, and Promotion
Tools to help you spread the word and reach every garage, school, and mind.
- Twitter – create a @YourCompetitionHere Twitter handle and begin outreach to the communities that matter to you.
- Facebook – Facebook is a widely used social media tool that can be leveraged to reach broad, diverse audiences.
- Linkedin – Linkedin is a professional-focused networking service that can be used to reach out to potential judges as well as specific groups of potential solvers.
- Google+ – Google+ is Google’s social networking service.
- Eventbrite – keep track of participants, teams, mentors, and judges, automatically time messages to each group, and take advantage of their robust reporting and analytics offering; free for no-cost registrations.
- Email – email blasts can be a great way to magnify your message; take advantage of HHS listserv, the federal challenge community of practice, and of course those of your target audience.
- Cross-post with other federal initiatives – chances are the problem your competition is addressing probably overlap with many federal and external initiatives. Seek them out for cross-posting opportunities.
- Conferences, meetings, etc… – Online media isn’t the only way to magnify your message. Often reinforcing your message through conferences, meetings, and other in-person venues will reinforce your online promotion strategies.
- HHS IDEA Lab – HHS IDEA Lab can help promote your competition (before, during and after) through blogs, twitter, and traditional promotion channels. Email them at idealab @ hhs [dot] gov.
- HHS Challenges Listserv – Contact challenges @ hhs [dot]gov to be added to the listserv or to send something to the listserv.
Sandeep [dot] Patel @ hhs [dot] gov.
HHS Competes Yammer Group (Available only to HHS employees)
Frequently Asked Questions
Can my agency use one-year, multi-year, or no-year funds to conduct a prize competition (in the situation in which my agency does not have an express appropriation for prize competitions to be conducted under § 24)?
An agency’s ability to use appropriated funds for conducting a prize competition is not limited to appropriations that have a particular period of availability. Thus, an agency can use one-year funds, multi-year funds, or no-year funds to conduct a prize competition (so long as the appropriation is available for that purpose). However, as Section 24(m)(2) makes clear, an agency must comply with the Antideficiency Act when obligating and expending funds: “No provision in this section permits obligation or payment of funds in violation of section 1341 of title 31, United States Code.” Moreover, depending on the length of the time period during which a prize may be awarded, after the prize competition has been announced, an agency may need to rely on a multi-year or no-year appropriation in order to ensure that the amounts that the agency has obligated for the prize (at the time the prize competition is announced) will continue to be available for expenditure during the period in which the prize can be awarded. See 31 U.S.C. § 1552 (providing for the cancellation of obligated balances on September 30 of the fifth fiscal year after the period of availability has ended).
In the case of an appropriations act that includes an express appropriation for a prize competition to be conducted under § 24, will those funds be no-year funds (i.e., remain available for obligation until expended) by virtue of § 24(m)(2)?
Section 24(m)(2) provides that: “Notwithstanding any other provision of law, funds appropriated for prize awards under this section shall remain available until expended.” Since Congress in a later-enacted appropriation could specify a different period of availability for such appropriated funds, agencies should consult with their general counsels, and where necessary with OMB, about this issue, which would depend on the language of the applicable appropriations statute.
Must my agency have separate gift authority to conduct a prize competition supported by private sector funds?
No. Section 24(m) grants agencies authority to accept and use private-sector funds for the design, administration, or prize purse of a competition conducted under section 24, regardless of whether the agency has pre-existing statutory authority to accept donations or gifts. In considering private sector support for a prize competition, agencies must review all applicable ethics and conflict-of-interest rules, and agencies must comply with the prohibition in section 24 against “giv[ing] any special consideration to any private sector entity in return for a donation.” Note that although section 24(m)(3) permits an agency to announce a prize competition when “all the funds needed to pay out the announced amount of the prize have been appropriated or committed in writing by a private source,” section 24 provides no exception to the general rule that an agency may not incur an obligation until such time as the agency has actually received the funds (i.e., the written commitment does not provide “budget authority” against which an agency may incur a legal obligation and record a budgetary obligation). Moreover, section 24(m)(2) makes clear that the section does not waive the application of the Antideficiency Act (“No provision in this section permits obligation or payment of funds in violation of section 1341 of title 31, United States Code.”). Thus, in those cases where an agency is announcing a prize competition, but the agency has not yet received the private funds for which a written commitment has been provided, the agency must make clear in announcing the prize competition that the agency’s (and the Federal Government’s) legal obligation extends only to the payment of any Federal share of the prize, and that the private source is therefore liable for the payment of its share of the prize.
Must my agency have cooperative agreement authority to enter into an agreement with a private nonprofit entity to administer a prize competition under § 24(l)?
No. Section 24(l) grants agencies authority to enter into an agreement with a private nonprofit entity to administer a prize competition under section 24, regardless of whether the agency has pre-existing statutory authority to enter into such agreements.
In considering potential agreements with private nonprofit entities for the purpose of a prize competition, agencies should review all applicable ethics and conflict-of-interest rules.
How are intellectual property rights handled in the America COMPETES Act regarding challenges and competitions?
The America COMPETES Act prohibits agencies from gaining an interest in intellectual property developed by a participant in a competition without the written consent of the participant. The Act also permits agencies to “negotiate a license for the use of intellectual property developed by a participant for a competition.” 15 U.S.C. § 3719(j)(2)
Agencies may handle intellectual property considerations a number of ways. For example, agencies could indicate in the rules that for an entry to be considered, the participant must grant in writing a license to the solution (a copyrightable work or patentable invention) at the time of submission, or even a written assignment to all rights in the solution (which might be coupled to a retained license by the participant in the solution). Furthermore, the agency could indicate in contest rules that it may choose to negotiate a license with the prize contest winner at some later point. In choosing how to handle intellectual property rights in prize competitions, agencies should consider the aim of the competition, the extent to which obtaining a Government license may impact implementation of the solution outside the Government, the agency’s need and intended application for the solution, as well as how treatment of intellectual property rights may influence the interest of solutions providers to participate in the contest.
Treatment of intellectual property rights will vary between competitions, and will depend upon a number of factors. Agencies are encouraged to consult with their respective points of contact in the Office of the General Counsel for assistance in developing terms such as this in their prize contests.
Is a one-size-fits all intellectual property regime required by § 105 of the America COMPETES Act?
No. From a policy perspective, agencies should select an intellectual property regime based on a careful analysis of the goals of the prize competition, an analysis of the full set of incentives for potential participants in light of any agreement about sharing intellectual property rights, and a theory of how the solutions will be implemented post-prize award.
Agencies should note that the America COMPETES Act prohibits agencies from gaining an interest in intellectual property developed by a participant in a competition without the written consent of the participant (15 U.S.C. § 3719 (j)(1). Agencies should clearly articulate the intellectual property treatment for winning solutions in the prize competition’s rules, and they should ask all participants to provide written consent to the rules upon or before submitting an entry. Agencies choosing to use an electronic signature to fulfill 15 U.S.C. § 3719(j)(1) should comply with all applicable statutes, including the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.) and the Government Paperwork Elimination Act (44 U.S.C. § 3504(a)(1)).
In addition, the Act specifically permits agencies to “negotiate a license for the use of intellectual property developed by a participant for a competition” 15 U.S.C. § 3719(j)(2), which can be done at any time during or after the competition.
Are program managers required to post the intellectual property rights considerations in the Federal Register Notice along with other required information about their challenge?
In general, the America COMPETES Act does not require that treatment of intellectual property rights be included in the Federal Register Notice; however, the agency would need to include the treatment of IP rights in the Federal Register Notice if either or both of the following two conditions is/are met:
1) The treatment of the intellectual property rights is a requirement for solutions providers to meet as a condition of eligibility to participate in the competition under 15 U.S.C. § 3719(f)(2). If the treatment of intellectual property amounts to a condition of eligibility to participate in the contest, then it must be included in the Federal register notice under 15 U.S.C. § 3719(f)(2) . One example of this would be where the agency indicates in the rules for the competition that for an entry to be considered, the participant must grant in writing a license to the solution (for example for a copyrightable work or a patentable invention) at the time of submission.
2) The treatment of the intellectual property rights amounts to a “basis on which a winner would be selected” (such as an evaluation factor considered in the selection of the winner) under 15 U.S.C. § 3719(f)(5). If the treatment of intellectual property rights is, in essence, an evaluation factor that the agency would consider in the selection of the prize winner, then the program manager must include that information in the Federal Register Notice as part of the “basis on which a winner would be selected” under 15 U.S.C. § 3719(f)(5). For example, a challenge may identify that the agency wishes to evaluate the intellectual property treatments that would provide options for licensing to the government and may consider this in the evaluation of the solutions. Under this scenario, the challenge manager should include a description of the intellectual property treatment in the Federal Register Notice.
If a program manager is unsure whether the government is interested in obtaining rights to a challenge solution and may want to consider a licensing agreement after the contest is concluded, is this consideration required to be described in the intellectual property rights considerations in the Federal Register Notice along with other required information about their challenge?
No. The lack of a statement in the Federal Register Notice addressing intellectual property rights considerations under this scenario does not preclude the program manager from seeking licensing rights to the solution after the challenge is concluded. Please note that as described in the question and answer above, the treatment of intellectual property rights must be published in the Federal Register Notice under certain circumstances.
Do the COMPETES Act and the Bayh-Dole Act conflict with respect to intellectual property?
There is generally no conflict between the COMPETES Act and the Bayh Dole Act with respect to intellectual property; the two Acts work independently. If, for a example, a university with a government grant were to enter a COMPETES Act competition that called for a typical disposition of intellectual property rights such as a license, the University could generally grant that license under a COMPETES Act prize competition without creating a conflict with any of its Bayh-Dole Act rights or responsibilities.
What is required of HHS agencies to meet the liability release provisions of the Act?
15 U.S.C. 3719(i)(1)(B) (“Liability”) provides that”[r]egistered participants shall be required to agree to assume any and all risks and waive claims against the Federal Government and its related entities, except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from their participation in a competition, whether the injury, death, damage, or loss arises through negligence or otherwise.”
In essence, this provision means that registered prize contest participants shall be required to release the Government from any liability that may arise from participation in a contest. In other words, contest participants should sign a liability release as part of the contest registration process.
Is there model language that HHS agencies could use to meet the liability release provisions of the Act?
HHS would suggest something along the lines of the following:
“By participating in this competition, I agree to assume any and all risks and waive claims against the Federal Government and its related entities, except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from my participation in this prize contest, whether the injury, death, damage, or loss arises through negligence or otherwise.”
II. Discretionary Decision: Whether to Obtain Liability Insurance from Contest Participants for Potential Third Party Claims
How should HHS agencies handle the liability insurance provision of the Act?
15 U.S.C. § 3719(i)(2)(“Insurance”), provides as follows:
(2) Insurance. Participants shall be required to obtain liability insurance or demonstrate financial responsibility, in amounts determined by the head of an agency, for claims by–
(A) a third party for death, bodily injury, or property damage, or loss resulting from an activity carried out in connection with participation in a competition, with the Federal Government named as an additional insured under the registered participant’s insurance policy and registered participants agreeing to indemnify the Federal Government against third party claims for damages arising from or related to competition activities; and
(B) the Federal Government for damage or loss to Government property resulting from such an activity.
(3) Exception. The head of an agency may not require a participant to waive claims against the administering entity arising out of the unauthorized use or disclosure by the agency of the intellectual property, trade secrets, or confidential business information of the participant.
This provision to gives the head of the Agency or designee authorized by the Attached April 22, 2011, Delegation of Authority of the Competes Act (hereinafter, “designee) the discretion to either require contest participants to obtain liability insurance, or demonstrate that they have adequate financial resources, to address third party claims that may result as a result of the competition. In any event, the provision gives the head of the agency or designee the discretion to determine the amount of any such insurance or required financial responsibility.
What amount of liability insurance should HHS agencies require?
HHS recommends that the head of the agency or designee make a written determination (even where the determined amount is”$0″ in this regard) based on the subject matter of the contest, the type of work that it will possibly require, as well as an analysis of the likelihood of any claims for “death, bodily injury, or property damage, or loss” potentially resulting from contest participation. Obviously, a contest to develop a vehicle or mode of transportation would pose far greater claims potential than a contest for a proposal, schematic, blue print, or software application. HHS understands that many HHS contests will likely involve development of software technology, and notes that the Agency is precluded from requiring a contest participant from waiving claims against an agency for the unauthorized use or disclosure by the agency of the intellectual property, trade secrets, or confidential business information of the participant. See 15 U.S.C. 3719(i)(3).
What is required of HHS agencies to meet the indemnification provisions of the Act?
With respect to indemnification, 15 U.S.C. § 3719(i)(2)(A) requires that registered participants agree “to indemnify the Federal Government against third party claims for damages arising from or related to competition activities.”
This provision means that registered prize contest participants shall be required to indemnify or protect the Federal Government against claims by third parties for damages arising from or related to competition activities.
Is there model language that HHS agencies could use to meet the indemnification release provisions of the Act?
Similar to the approach recommended in Section I above, contest participants should sign an indemnification agreement as part of the contest registration process. HHS would suggest something along the lines of the following:
“By participating in this competition, I agree to indemnify the Federal Government against third party claims for damages arising from or related to competition activities.”
Whom should HHS program managers contact if they have additional questions about the liability and insurance provisions of the Act?
HHS program managers should contact their cognizant Division of the HHS Office of the General Counsel if they have any questions about the liability of insurance provisions of the Act.
Paperwork Reduction Act Compliance
If an agency uses Challenge.gov for a prize, challenge, contest, or competition, must it submit an information collection request (ICR) to OMB for approval under the Paperwork Reduction Act (PRA) before conducting the challenge?
As designed by the General Services Administration (GSA), agency use of Challenge.gov tools to conduct challenges—including the platform’s registration, public voting, and blog/discussion functionalities—are not subject to the PRA.
OMB’s April 7, 2010 memorandum, Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act, explained that contests in which an agency asks the general public for ideas, such agency requests would not constitute collections of information that require OMB PRA approval. Such requests could take the form of an agency’s solicitation of ideas for how the agency could improve current practices under a statute that the agency administers; for potential solutions to a scientific, technological, social, or other problem; or for innovations (e.g., video and software applications) that might advance an agency’s mission. In such cases, the agency’s request for ideas would be the kind of general solicitation that is not subject to the requirements of the PRA. (See 5 C.F.R. § 1320.3(h)(4)). For example, essay or video contests that permit respondents to create their own submissions are not covered by the PRA if no additional information is collected for the contest beyond what is necessary to contact the entrants.
However, the PRA may be triggered if the agency – in conducting a prize, challenge, contest, or competition – requests the submission of information beyond what would be considered as a request to the general public for ideas – such as a series of questions that entrants must answer in order to qualify for the contest. If an agency plans to regularly use this type of contest, it may consider requesting a generic clearance.
If an agency uses a platform other than Challenge.gov for conducting a contest, must it submit an ICR to OMB for approval under the PRA before conducting the challenge?
The need to submit an information collection to OMB for approval under the PRA depends not on the platform used, but on the nature of the information collected. Therefore, the same principles apply to both challenges hosted on Challenge.gov as well as those hosted elsewhere.
As explained above in the answer to Question 1, agency solicitations to the general public for ideas – such as ideas for improving current practices under a statute that an agency administers; for potential solutions to a scientific, technological, social, or other problem; or for innovations (e.g., video and software applications) that might advance an agency’s mission—fall within the category of information that is not subject to the PRA. [See OMB’s April 7, 2010 memo, Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act ].
Thus, as noted above, a challenge that permits respondents to create their own submissions will not be covered by the PRA if no additional information is collected for the contest beyond what is necessary to contact the entrants. If, however, an agency requests more information with a challenge submission (e.g. a series of questions that entrants must answer to take part in the contest or demographic information about the entrants), the information collected as part of the challenge may be covered by the PRA.
If an agency requests that a title for an idea, solution, or entry be provided as part of a challenge or a contest, does the agency need to seek PRA approval?
No. OMB considers the title of the entry to be part of the submission created by the entrant. Therefore, if a challenge or entry is otherwise not subject to the PRA, the request for the title would not trigger the need for PRA approval.
If an agency requests that entrants provide a script with video entries, does the agency need to seek PRA approval?
No. OMB considers scripts to be part of the creation of the submitted video. Therefore, if a challenge or entry is otherwise not subject to the PRA, the request for the script would not trigger the need for PRA approval.
If a challenge encourages or requires the use of key resources (e.g., a competition for the best software application that uses at least one of a number of publicly available data sets identified by the agency), would the agency need to obtain OMB’s PRA approval in order for the agency – using a structured question – to ask entrants to identify the resources that they incorporated into their submissions (e.g., the data set used by the software application)?
No. Similar to the title of the entry (See Question 3), OMB considers this type of information to be intrinsic to the submission. Therefore, if a challenge or entry is otherwise not subject to the PRA, such a request would not trigger the need for PRA approval.
If an agency develops a challenge that provides awards for different categories and requests that entrants identify their entry by a category using a structured question, does the agency need to seek PRA approval?
No. Similar to a title of the entry (See Question 3), OMB considers this type of information to be intrinsic to the submission. Therefore, if a challenge or entry is otherwise not subject to the PRA, the request for this information would not trigger the need for PRA approval.
If an agency requests that entrants identify entries posted on social media websites with a common hash tag (e.g. an agency requests entrants to use “#USchallenge” for entries posted to YouTube or a similar site), does the agency need to seek PRA approval?
No. If the content of the hash tag is supplied by the agency, it is not subject to the PRA. (See 5 CFR 1320.3(c)(2))
If a challenge will be conducted by a third party or be implemented using services offered by a third party, is it necessary to seek OMB approval under the PRA?
If an agency is not conducting or sponsoring the challenge, it is not subject to the PRA. For example, if a private organization is conducting a contest, the PRA is inapplicable even if an agency is informed and provides suggestions, advice, and technical assistance (so long as the agency is not making a specific request or in a position to approve a challenge or its design). Items collected by third party websites or platforms that are not collecting information on behalf of the Federal Government are not subject to the PRA.
If an agency does not conduct the challenge (i.e., collects the information itself, using its own staff and resources), but sponsors the collection by, for example, designing the contest or providing the award, the PRA could apply if the information collected is beyond what is necessary to contact the entrants.
Under the PRA, an agency “sponsors” a collection if the agency (1) causes another agency to collect the information, (2) contracts or enters into a cooperative agreement with a person to collect the information, (3) requires a person to provide information to another person, or (4) in similar ways causes another agency, contractor, partner in a cooperative agreement, or person to obtain, solicit, or require the disclosure to third parties or the public of information by or for an agency. In the context of collections that are not Federally funded, a Federal agency does not “sponsor” an information collection if it merely provides suggestions, advice, or technical assistance to a non-Federal entity (governmental or private) that will conduct the collection on its own initiative. [See OMB’s December 9, 2010 memorandum, Facilitating Scientific Research by Streamlining the Paperwork Reduction Act Process].
Can the same generic clearance be used for different kinds of contests and challenges?
In the context of challenges and contests, it would be acceptable to request a generic clearance that covered challenges and contests on a variety of themes and several challenges and contests that covered the same topic.
A generic ICR is a request for OMB approval of a plan for conducting more than one information collection using very similar methods when (1) the need for and the overall practical utility of the data collection can be evaluated in advance, as part of the review of the proposed plan, but (2) the agency cannot determine the details of the specific individual collections until a later time. Clearances of generic ICRs provide a significantly streamlined process by which agencies may obtain OMB’s approval for particular information collections – usually voluntary, low-burden, and uncontroversial collections.
It is important that the agency be able to provide enough detail about the types of activities covered under the generic to allow OMB to determine whether “the collection of information by the agency is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility,” and thus to approve the generic ICR.
Section 508 Compliance
What are the obligations of challenge managers in stipulating compliance with Section 508 requirements for a challenge solution that is specifically aimed at an early stage prototype or IT-enabled tool that is not yet ready for procurement, use, or public display by an HHS agency?
In this case, challenge managers must require that solution-providers submit a statement acknowledging that they understand that, as a pre-requisite to any subsequent obtainment by FAR contract or other method, they may be subsequently required to make their proposed solution compliant with Section 508 accessibility and usability requirements at their own expense, and also provide a short description of how this would be accomplished.
The HHS Section 508 Evaluation Product Assessment Template may provide a useful roadmap for developers to review and follow in developing such a statement. This tool is a simple, web-based checklist utilized by HHS officials to allow vendors to document how their products do or do not meet the various Section 508 requirements.
What are the types of technological solutions to HHS-sponsored challenges that would invoke consideration(s) for meeting the requirements of Section 508 of the Rehabilitation Act?
These could include, but are not limited to challenges that seek the following kinds of technological solutions:
- Web-based internet applications
- Videos and multimedia products
- Dashboards, mash-ups or tools that synthesize and present disparate data in novels ways
- Mobile phone applications
- Information technology-enabled devices or robots
How should challenge managers address compliance with Section 508 of the Rehabilitation Act in their challenge competition solicitations?
The America COMPETES Act (15 U.S.C. 3719) does not address the issue of compliance with Section 508 of the Rehabilitation Act, which is a federal law that requires Federal agencies to ensure that persons with disabilities have comparable access to and use of the information and data that they develop, procure, maintain, or use. The Department is committed to ensuring equal access to and use of electronic and information technology (EIT) for persons with disabilities for all EIT procured, used, developed, or maintained by HHS.
This FAQ provides guidance to Challenge Managers on addressing 508 compliance issues in two areas likely to arise in challenge competitions: a) where the Department anticipates that after a challenge competition, it may acquire a solution with EIT for the Government’s use, maintenance, or development; and, b) challenge competitions involving product ideas, theoretical models, or early-stage prototypes.
- Acquisition of a Solution with EIT Subsequent to a Challenge Competition
Challenge managers should address Section 508 compliance issues for those challenges where it is known at the time a challenge is launched that the Department anticipates that after the challenge competition, it may obtain by contract under the Federal Acquisition Regulation (FAR) or by any other method, a solution that includes EIT for the Government’s use, maintenance, or development. Before such a solution with EIT can be subsequently obtained by contract or other vehicle, it must comply with Section 508’s accessibility and usability requirements, unless an exemption is provided for. Therefore, challenge managers should ensure that their challenge solicitations inform solution-providers that, as a pre-requisite to any subsequent of solutions with EIT by contract or other method, they may be required to make their solutions 508 compliant at their own expense. For anticipated contracts under the FAR, challenge managers are advised to engage with their cognizant acquisition personnel to assess the potential contract requirements related to compliance with Section 508. In addition, for anticipated acquisitions of EIT by methods other than under the FAR, you may wish to refer challenge managers to their 508 coordinators.
- Challenge Competitions Involving Product Ideas, Theoretical Models, or Early-Stage Prototypes
In cases where the Department is seeking product ideas, theoretical models, or early-stage prototypes, it may be premature to require solution-providers to comply with Section 508 requirements in their submissions to an HHS-initiated challenge. In such cases, challenge managers should require solution-providers to submit a statement acknowledging that they understand that, as a pre-requisite to any subsequent acquisition by FAR contract or other method, they may be required to make their proposed solution compliant with Section 508 accessibility and usability requirements at their own expense. Challenge managers should also require solution-providers to submit a short description of how this would be accomplished.
There is a strong business case for challenge managers to build awareness of Section 508 accessibility and usability requirements into their challenge solicitations. Any EIT that is ultimately obtained by HHS for its use, development, or maintenance must meet Section 508 accessibility and usability standards. Past experience has demonstrated that it can be costly for solution-providers to “retrofit” solutions if remediation is later needed.
In a situation where HHS is interested in obtaining by a contract under the FAR or any other method electronic and information technology developed by a solution-provider that has been determined not to conform to Section 508 accessibility and usability standards, which party is responsible for ensuring that the electronic and information technology meets Section 508 requirements?
Under Section 508, HHS has a legal responsibility to ensure that the electronic and information technology that it procures will be accessible to and usable by persons with disabilities. Therefore, if, after a challenge prize has been awarded, HHS determines that a solution that it is interested in obtaining does not meet Section 508’s accessibility and usability requirements, such solution must ultimately conform to the described accessibility and usability in the HHS Section 508 Evaluation Product Assessment Template before it is deployed or utilized by the Government.
Where can HHS challenge managers learn about Section 508 Requirements?
Resources for understanding and implementing Section 508 accessibility and usability requirements can be found at on the Section 508 requirements page (this site provides a broad overview for understanding and implementing Section 508) and the HHS Section 508 requirements page (this site, developed and managed by HHS, provides additional information on the testing of documents and procedures for making them 508-compliant). In addition, online training on this topic is available online for HHS employees.
To whom should HHS challenge managers be directed for more information regarding how to meet Section 508 accessibility and usability requirements if they have additional questions?
HHS challenge managers may wish to contact their designated 508 coordinators, which are listed online the 508 coordinator website. Challenge managers in need of additional technical assistance may wish to contact the Access Board. Contact information for the Access Board may be found on their website.
Under what circumstances are federal grantees and federal contractors eligible to compete in HHS-sponsored challenge competitions?
Federal grantees may not use Federal funds to develop COMPETES Act challenge applications unless consistent with the purpose of their grant award and specifically requested to do so due to competition design, and as announced in the Federal Register. If a grantee using Federal funds wins the competition, the award needs to be treated as program income for purposes of the original grant in accordance with applicable OMB Circulars.
Federal contractors may not use Federal funds from a contract to develop COMPETES Act challenge applications or to fund efforts in support of a COMPETES Act challenge submission. Costs associated with such activities are unallowable and are not allocable to Government contracts.
Are Federal entities eligible to receive prizes under a Competes Act Competition?
No. The Competes Act establishes that a federal entity is not eligible to receive a prize under a Competes Act Competition. 15 U.S.C. 3719 (g)(4).
Under what circumstances are federal employees eligible to compete in HHS-sponsored challenge competitions?
The Competes Act establishes that to be eligible for a prize an individual “may not be a Federal employee acting within the scope of their employment.” 15 U.S.C. 3719 (g)(4). Also, HHS Staff Division (STAFFDIV) employees are only allowed to compete for challenges and competitions that are offered by HHS Operating Divisions (OPDIVs) or a STAFFDIV other than their own. HHS OPDIV employees may compete for challenges and competitions that are offered by: (1) an HHS STAFFDIV or an OPDIV other than their own; and (2) their own OPDIV if they are not in the reporting chain of the OPDIV award approving official, which may only be the OPDIV head or one of their direct reports. In addition, HHS employees may not work on their applications or submissions during assigned duty hours, and may not use Federal facilities or consult with a Federal employee except as permitted under Section 24(h) of the Act.
Are state, local governments eligible and Medicaid health plans eligible for HHS prize awards under the America COMPETES Act?
For HHS Prize Competition designers, consultation with the designer’s cognizant Office of General Counsel point of contact is recommended on prize competitions where entries are anticipated or sought for one or more of the above referenced entities. As a general matter, the COMPETES Act does not prohibit federal agencies from considering COMPETES Act prize competition entries from states, local Governments or Medicaid health plans. However, legal requirements unique to such entities could preclude them, either as matter of law or due to practical considerations, from competing in COMPETES ACT authorized prize competitions. In addition, depending on the design or objective of any particular prize competition, it may be inadvisable for agencies sponsoring prize competitions to deem these entities as eligible for participation, due to potential conflicts of interest or other considerations.