oversight

COI (Non-NSF)

Published by the National Science Foundation, Office of Inspector General on 2012-05-22.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                                            NATIONAL SCIENCE FOUNDATION
                                            OFFICE OF INSPECTOR GENERAL
                                              OFFICE OF INVESTIGATIONS

                                       CLOSEOUT MEMORANDUM

  Case Number: A09100080                                                           Page 1 of 1


          We received an allegation that a Director of an NSF-funded organization, which
          receives and considers proposals for research using the organization's resources,
          had improperly handled a proposal on which he had a conflict of interests. Our
          investigation found evidence that: (i) the PI of the proposal had information not
          available to the public; (ii) the Director overrode the recommendation of the
          organization's review committee and funded the proposal; and (iii) the Director was
          a current collaborator of the PI.
          We recommended the NSF Division determine if the affected scientific community
          would benefit from the Division working with the organization to evaluate and
          improve its policies and determine if it is in the community's best interests for the
          project to continue to be funded. The Division agreed to do so. Accordingly, this
          case is closed with no further action taken. Our report, the Division's decision, and
          this Closeout Memorandum constitute the documents for the case closeout.




NSF OIG Form 2 (11 /02)
Date:            19 April 2012

To:                                       OIG

From:




Subject:         Response to OIG investigation A09100080 on the improper
handling of a - t i m e award b y -



-supports the widely-applied principle that the-directors, as delegated by the awardee
managing organizations, have considerable discretion in the allocation o f - t i m e (including
explicit authorization to allocate "directors discretionary time") analogous to the authority for DO
concurrence of awards at NSF. However,.also considers it essential that the time allocation
processes be conducted under appropriate, unbiased policies such that NSF and the community
maintain the integrity and trust in t h e - a n d awardee.

When authorized to do so,.will initiate consultation with the awardee
- t o develop and implement policies and actions fo~along the following lines:

(1) Expand-current COl policy to include existing and recent collaborators and extend
application of the policy t o - s t a f f including the Director. Staff should recuse themselves if a
COl exists .•   approval of time allocations will be required if the Director has a COl.

(2) Establish a policy and practices that provides all time allocation applicants with access to the same
information (such as available technical and programmatic resources and review criteria) . Time
allocation committees will be instructed to disregard contrary information contained in any individual
application. Any deviations from this policy, for example to develop new observing modes or techniques
or new instrumentation, must be documented and require the explicit approval of t h e -
Director or-per the COl policy.

(3) Establish a threshold for directors discretionary time allocations. Exceptions to this threshold will
require the explicit approval o -

(4) Any editing or redaction of comments from referee reports prior to conveying them to time
allocation applicants must be documented and explicitly approved by management following the COl
rules.
(5) Implementation of a reconsideration policy following the new COl rules.

(6)~0 conduct a review, independent o f - of the scientific merit and handling of the proposal
at issue with a view to continuing the allocation of observing time .
      National Science Foundation
       Office of Inspector General




                  Confidential
             Report of Investigation
            Case Number A-09100080

                          10 May 2012


       This Confidential Report of Investigation is provided to you
                          FOR OFFICIAL USE ONLY.
It contains protected personal information, the unauthorized disclosure of which
may result in personal criminal liability under the Privacy Act, 5 U.S.C. § 552a.
This report may be further disclosed within NSF only to individuals who must
have knowledge of its contents to facilitate NSF's assessment and resolution of
this matter. This report may be disclosed outside NSF only under the Freedom of
Information and Privacy Acts, 5 U.S.C. §§ 552 & 552a. Please take appropriate
precautions handling this confidential report of investigation.

                                                                NSF OIG Form 22b (11/06)
CONFIDENTIAL                                                           CONFIDENTIAL


                                          Background
       We received allegations that the Directorl of an Organization2 improperly
handled a proposal3 submitted to the Organization, and that the Director had a
conflict of interests with that same proposaL The proposal was submitted to the
Organization on 1 Jun 2009; it was merit reviewed and subsequently discussed by
the Organization's review committee (RC). 4 The RC recommended against the
Organization allocating any equipment time to the proposal because of several
concerns. Instead, it suggested the proposal be resubmitted the next trimester.5
However, the Director provided a disposition to the PI stating the Organization
would support the proposaL 6 The Director also provided an edited version of the
RC's comments (removing some of its criticisms and its recommendation for
resubmission) and copies of the individual reviews, ofwhich he edited one to remove
negative comments about designation of the project as a "Key Project" and its
request of a large amount of [instrument] time.7
       The alleged concerns raise issues related to several Organizational processes
including:
           •   Security of Privileged Information-(a) the PI requested "Key
               Project" designation; and (b) the PI proposed making use of
               instruments that did not exist but for which a different, confidential
               proposal was submitted to NSF for funding. Both of these requests
               could only be made by someone with access to the Organization's
               privileged information. That they were made by a PI, who should not
               have such access, raises questions about the protection of privileged
               information within the Organization.
           •   Conflict of Interests Policy- The Director overrode the RC to fund
               this proposal using his discretionary authority. His actions were
               unusual because of the large amount of time requested and the
               technical concerns of the RC. That he could take such actions raises a
               question as to whether the Organization's COl policy adequately
               addresses the professional and personal relationships between
               Organization officials and applicants.




   1 [redacted]
   2 [redacted]
   3 [redacted] Tab 2, Attachment 1.
   4 [redacted]

   5 Tab 2, Attachment 3.
   6 Tab 2, Attachment 4.
   7 5280 hours of the [redacted] over 5 years.




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CONFIDENTIAL                                                                         CONFIDENTIAL


                                 Summary of Investigation
      We requested all information related to this proposal from the Organization. 8
The President of the parent organization,9 which is the NSF grantee, provided the
proposal, the referee's reports, the RC report, and other relevant informationJO
Security of Privileged Information: The PI used the designation of "Key
Project" in his proposal: "(h]ere we propose a Key Project for the [Organization]." 11
The proposal was submitted on 1 June 2009. The "Key Science Project" designation
was first announced in the Organization's September 2009 newsletter, 12 and was
not available for projects until the 1 October 2009 deadline for proposals. In fact,
one of the referees specifically commented on this issue:
         It is to be noted that the authors place these observations in the
         framework of a key project. While I understand the [Organization]
         may eventually move in this direction, this has not yet been
         announced. This proposal hence sounds a bit premature to me.
         Preemption of a large amount of [instrument] time before the official
         announcement of such key programs should be avoided in order to be
         fair to all potential observers.l3
Additionally, the RC summary for the proposal notes:
         Finally, this proposal is premature as the announcement regarding key
         projects was not made available to the community for the June 2009
         proposal deadline. The designation of a key project shall be made by
         the RC and not by the proposer(s).l4
       The PI's use of this designation clearly indicates the PI had inside knowledge
of this designation before the general [redacted] community. The description of
"Key Projects" agrees with the RC's comment that the "Key Project" designation "is
based on its scientific ranking from the proposal review process, nomination by the
organization [RC], and final selection and approval by the organization Director's
Review." 15 From the Director's disposition, it appears this project was granted the
"Key Project" designation, "... to work through the practicalities required to carry


   8   Tab 1.
    9 [redacted]
    10 Tab 2.
    11 [redacted]. According to the Organization, Key Projects are projects that are expected to "have
high science impact [redacted] ." These projects have a priority on receiving [redacted] time , as well
as a longer amount of [instrument] time. Organization staff is expected "to provide maximum
possible support" and students working on Key Projects are encouraged to participate in specialized
training.
    12 [redacted] ; Tab 1, Attachment 7.
    13 Tab 2, Attachment 2.
    14 Tab 2, Attachment 3.

    15 Tab 2, Attachment 8.




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CONFIDENTIAL                                                                          CONFIDENTIAL


out this very significant Key Project" 16 despite the RC's reservations and in
violation of the stated policy that the RC should nominate a project for this
designation. Thus, the Director appeared to bypass the organization policy by
designating the proposal as a "Key Project". These actions resulted in this proposal
receiving unusually favorable treatment.
       Another concern, which relates to the allegation that the PI had access to
privileged information, is the PI's proposed use of an instrument that did not exist.
The PI proposed making use of a special instrument,l7 which the Organization had
not announced to its community--even the RC did not know about the instrument.
One reviewer wrote "part of the proposal requests time with a new [instrument]
system on the [instrument] which has not been funded, let alone deployed or
commissioned." 18 The RC also addressed this concern: "This is a proposal to use
capabilities which do not yet exist for the [Organization] and are dependent on the
outcome of the MRI proposal submitted separate to the NSF."J9 Additionally,
several of the reviewers commented that the PI's proposal, without the proposed
(non-existent) instrument, was just better than average, and the RC concluded "the
backup plan [if the new instrument doesn't get funded, built, and operational in
time] is thus much weaker than the proposal as a whole." 20 We concluded the PI's
plan to use a nonexistent instrument also supports the allegation that the PI had
access to non-public information.21


Conflict of Interests Policy: The Organization's COl policy states:
         Referees should not evaluate proposals by teams which include
         themselves, their spouses, significant others, or other immediate
         family members. Beyond that, we have no formal rules with respect to
         competitors, past students or advisors, collaborators on other projects,
         and so on. 22
The Director is and has been a collaborator with the PI prior to, and during, the PI's
submission and the Director's dispensation of this proposaL They currently
collaborate on a notable research project together, including publishing together. 23
      By NSF standards, the Director would be recused from any participation in
the evaluation of the PI's proposal because of his professional relationship with the
PI. It appears that under the Organization's current policy such relationships do

   16   Tab 2, Attachment 4.
    17  [redacted]
    18 Tab 2, Attachment 2.
    19 Tab 2, Attachment 3.
    2o Tab 2, Attachment 3.
    2 1 In the reviews the Director provided to the PI, discussion about the PI's use of the Key Project
designation were removed in one individual review and with two edits to the RC summary.
    22 Tab 2, Attachment 6, p. 5.
    23 The Director and PI are current collaborators on [redacted] .




                                                   3
CONFIDENTIAL                                                                       CONFIDENTIAL


not constitute a conflict of interests because the Director and organizational officials
are not collaborating with the PI on the project described in the proposal.
                                          Conclusions
      The overturning of the RC's recommendation, by an Organizational official
involving a current long-term collaborator who apparently had access to privileged
information, on a proposal with such a large impact on the available community
time on the instrument, creates (or reinforces if it already exists) the appearance
that award was not objective. These actions run counter to the expectation that
NSF, and the Centers and Facilities it supports, provides support to the whole of
US science in a fair and unbiased manner.
       The effect of the Director's decision was significant. Specifically, the RC was
concerned about the large amount of instrument time the project requested. It
requested approximately 5280 hours, which represents approximately 30% of the
total time available on that instrument. 24 Five of the eight referees commented on
the requested time. 2 5 One said the total time looked "reasonable" and another noted
the time resources were "beyond any request I have seen," while a third described
the proposal as asking for "a large amount of time." The fourth reviewer who
commented on time noted if results turn out as stated, the time "is a small price to
pay," but since that was unlikely, he recommended only 40% or 2000 hrs. The RC
as a whole noted, "A proposal for such a large amount of time should have no
reservations about the observational plans or the technical aspects" and this one
did. It said the [fifth] referee's question "'Is the foreseen improvement ... worth
5000 hours of [ ] time' is left unanswered." 26 Thus, the decision to override the RC
for this particular project has a significant impact on the community due to the
amount of time the PI will be allocated (approximately 30% of the total time).
Decisions such as this should be made as objectively as possible.


                                   OIG Recommendation
       As we have noted, the Organization operates without the standards NSF has
in place to protect the integrity of its merit review. We recommend NSF:
    •   Determine if it is in NSF's and the community's best interests for the
        Organization to continue to operate under its current review policies.
        Specifically, NSF and the Organization should consider the need for:


    24 This estimate is based on past [redacted] schedules where 1200 hours of [instrument] time was

a typical trimester load . Thus, 5280 hours over 5 years is 1056 hours per year or about 30% of the
total time.
    25 The following quotations are from the various reviews; Tab 1, Appendix 2.
    26 Tab 2, Appendix 3. We note the Director edited out this comment in his disposition-Tab 2,

Appendix 4. As previously noted , the Director also edited out the RC's declination: "Based on the
above , we cannot allocate time to this proposal."


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CONFIDENTIAL                                                                     CONFIDENTIAL


           o a more substantive conflict-of-interests policy to ensure an unbiased
             process for reviewing proposals;
           o a policy about providing unedited 27 reviews and RC summary
             (including recommendation) to the PI;
           o a policy clarifying the Director's role m the revwwmg and funding
             process; and
           o a reconsideration policy for the review of questionable funding
             decisions.
           o a recusal process that could be relied on to ensure objective evaluation
             of proposals.
   •    Review the handling of this proposal and determine if it is in NSF's and the
        community's best interests for the Organization to continue to fund this
        project and whether any individuals should be recused from further
        involvement in this project.




   27 We are describing the Director's actions as editing, not redacting, the reviews. We are not
addressing the simple redaction or strikethrough of material deemed to be ad hominem or not
relevant to the reviews.


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