(Revised
July 21, 2008)
235.001 Definitions.
235.006 Contracting methods and
contract type.
235.006-70 Manufacturing
Technology Program.
235.008 Evaluation for award.
235.010 Scientific and technical
reports.
235.015-70 Special use
allowances for research facilities acquired by educational institutions.
235.016 Broad agency
announcement.
235.017 Federally Funded
Research and
235.017-1 Sponsoring agreements.
235.070 Indemnification against
unusually hazardous risks.
235.070-1 Indemnification under
research and development contracts.
235.070-2 Indemnification under
contracts involving both research and development and other work.
235.070-3 Contract clauses.
235.071 Export-controlled items.
235.072 Additional contract clauses.
235.001 Definitions.
“Research and
development” means those efforts described by the Research, Development, Test,
and Evaluation (RDT&E) budget activity definitions found in the DoD
Financial Management Regulation (DoD 7000.14-R), Volume 2B, Chapter 5.
235.006 Contracting methods and
contract type.
(b)(i) For major defense acquisition programs as
defined in 10 U.S.C. 2430—
(A) Follow the procedures at 234.004; and
(B) Notify the Under Secretary of Defense
(Acquisition, Technology, and Logistics) (USD(AT&L)) of an intent not to
exercise a fixed-price production option on a development contract for a major
weapon system reasonably in advance of the expiration of the option exercise
period.
(ii)
For other than major defense acquisition programs—
(A) Do not award a fixed-price type contract for
a development program effort unless—
(1)
The level of program risk permits realistic pricing;
(2)
The use of a fixed-price type contract permits an equitable and sensible
allocation of program risk between the Government and the contractor; and
(3)
A written determination that the criteria of paragraphs (b)(ii)(A)(1) and (2) of this section have been met is executed—
(i)
By the USD(AT&L) if the contract is over $25 million and is for:
research and development for a non-major system; the development of a major
system (as defined in FAR 2.101); or the development of a subsystem of a major
system; or
(ii)
By the contracting officer for any development not covered by paragraph
(b)(ii)(A)(3)(i) of this section.
(B) Obtain USD(AT&L) approval of the
Government’s prenegotiation position before negotiations begin, and obtain
USD(AT&L) approval of the negotiated agreement with the contractor before
the agreement is executed, for any action that is—
(1)
An increase of more than $250 million in the price or ceiling price of a
fixed-price type development contract, or a fixed-price type contract for the
lead ship of a class;
(2)
A reduction in the amount of work under a fixed-price type development
contract or a fixed-price type contract for the lead ship of a class, when the
value of the work deleted is $100 million or more; or
(3)
A repricing of fixed-price type production options to a development
contract, or a contract for the lead ship of a class, that increases the price
or ceiling price by more than $250 million for equivalent quantities.
235.006-70 Manufacturing
Technology Program.
In accordance with 10
U.S.C. 2521(d), for acquisitions under the Manufacturing Technology Program—
(a) Award all contracts
using competitive procedures; and
(b) Include in all
solicitations an evaluation factor that addresses the extent to which offerors
propose to share in the cost of the project (see FAR 15.304).
235.008 Evaluation for award.
See 209.570 for limitations on the award of contracts to
contractors acting as lead system integrators.
235.010 Scientific and technical
reports.
(b) For DoD, the Defense Technical Information Center is responsible for collecting all scientific and technical reports. For access to these reports, follow the procedures at PGI 235.010(b) (Pop-up Window or PGI Viewer Mode).
235.015-70 Special use
allowances for research facilities acquired by educational institutions.
(a) Definitions. As used in this
subsection—
(1) “Research
facility” means—
(i) Real
property, other than land; and
(ii)
Includes structures, alterations, and improvements, acquired for the
purpose of conducting scientific research under contracts with departments and
agencies of the DoD.
(2) “Special use
allowance” means a negotiated direct or indirect allowance—
(i) For
construction or acquisition of buildings, structures, and real property, other
than land; and
(ii) Where
the allowance is computed at an annual rate exceeding the rate which normally
would be allowed under FAR Subpart 31.3.
(b) Policy.
(1) Educational
institutions are to furnish the facilities necessary to perform defense
contracts. FAR 31.3 governs how much the
Government will reimburse the institution for the research programs. However, in extraordinary situations, the
Government may give special use allowances to an educational institution when
the institution is unable to provide the capital for new laboratories or
expanded facilities needed for defense contracts.
(2) Decisions to
provide a special use allowance must be made on a case-by-case basis, using the
criteria in paragraph (c) of this subsection.
(c) Authorization for special use allowance. The head of a contracting activity may
approve special use allowances only when all of the following conditions are
met—
(1) The research
facility is essential to the performance of DoD contracts;
(2) Existing
facilities, either Government or nongovernment, cannot meet program
requirements practically or effectively;
(3) The proposed
agreement for special use allowances is a sound business arrangement;
(4) The
Government's furnishing of Government-owned facilities is undesirable or
impractical; and
(5) The proposed
use of the research facility is to conduct essential Government research which
requires the new or expanded facilities.
(d) Application of the special use allowance.
(1) In
negotiating a special use allowance—
(i)
Compare the needs of DoD and of the institution for the research
facility to determine the amount of the special use allowance;
(ii)
Consider rental costs for similar space in the area where the research
facility is or will be located to establish the annual special use allowance;
(iii) Do
not include or allow—
(A)
The costs of land; or
(B)
Interest charges on capital;
(iv) Do
not include maintenance, utilities, or other operational costs;
(v) The
period of allowance generally will be—
(A)
At least ten years; or
(B)
A shorter period if the total amount to be allowed is less than the
construction or acquisition cost for the research facility;
(vi)
Generally, provide for allocation of the special use allowance equitably
among the Government contracts using the research facility;
(vii)
Special use allowances apply only in the years in which the Government
has contracts in effect with the institution.
However, if in any given year there is a reduced level of Government
research effort which results in the special use allowance being excessive
compared to the Government research funding, a separate special use allowance
may be negotiated for that year;
(viii)
Special use allowances may be adjusted for the period before construction
is complete if the facility is partially occupied and used for Government
research during that period.
(2) A special
use allowance may be based on either total or partial cost of construction or
acquisition of the research facility.
(i) When
based on total cost neither the normal use allowance nor depreciation will
apply—
(A)
During the special use allowance period; and
(B)
After the educational institution has recovered the total construction
or acquisition cost from the Government or other users.
(ii) When
based on partial cost, normal use allowance and depreciation—
(A)
Apply to the balance of costs during the special use allowance period to
the extent negotiated in the special use allowance agreement; and
(B) Do not apply after the special use allowance
period, except for normal use allowance applied to the balance.
(3) During the
special use allowance period, the research facility—
(i) Shall
be available for Government research use on a priority basis over nongovernment
use; and
(ii)
Cannot be put to any significant use other than that which justified the
special use allowance, unless the head of the contracting activity, who
approved the special use allowance, consents.
(4) The
Government will pay only an allocable share of the special use allowance when
the institution makes any substantial use of the research facility for parties
other than the Government during the period when the special use allowance is
in effect.
(5) In no event
shall the institution be paid more than the acquisition costs.
235.016 Broad agency
announcement.
To help achieve the
goals of Section 1207 of Pub. L. 99-661 (see Part 226), contracting officers
shall—
(1) Whenever
practicable, reserve discrete or severable areas of research interest contained
in broad agency announcements for exclusive competition among historically
black colleges and universities and minority institutions;
(2) Indicate such
reservation—
(i) In the broad
agency announcement; and
(ii) In the
announcement synopsis (see 205.207(d)).
235.017 Federally Funded
Research and
(a) Policy.
(2) No DoD
fiscal year 1992 or later funds may be obligated or expended to finance
activities of a DoD Federally Funded Research and Development Center (FFRDC) if
a member of its board of directors or trustees simultaneously serves on the
board of directors or trustees of a profit-making company under contract to
DoD, unless the FFRDC has a DoD-approved conflict of interest policy for its
members (Section 8107 of Pub. L. 102-172 and similar sections in subsequent
Defense appropriations acts).
235.017-1 Sponsoring agreements.
(c)(4) DoD-sponsored
FFRDCs that function primarily as research laboratories (C3I Laboratory operated
by the Institute for Defense Analysis, Lincoln Laboratory operated by
Massachusetts Institute of Technology, and Software Engineering Institute
operated by Carnegie Mellon) may respond to solicitations and announcements for
programs which promote research, development, demonstration, or transfer of
technology (Section 217, Pub. L. 103-337).
235.070 Indemnification against
unusually hazardous risks.
235.070-1 Indemnification under
research and development contracts.
(a) Under 10 U.S.C. 2354, and if authorized by
the Secretary concerned, contracts for research and/or development may provide
for indemnification of the contractor or subcontractors for—
(1) Claims by
third persons (including employees) for death, bodily injury, or loss of or
damage to property; and
(2) Loss of or
damage to the contractor's property to the extent that the liability, loss, or
damage—
(i)
Results from a risk that the contract defines as “unusually hazardous;”
(ii)
Arises from the direct performance of the contract; and
(iii) Is
not compensated by insurance or other means.
(b) Clearly define the
specific unusually hazardous risks to be indemnified. Submit this definition for approval with the
request for authorization to grant indemnification. Include the approved definition in the
contract.
235.070-2 Indemnification under
contracts involving both research and development and other work.
These contracts may
provide for indemnification under the authority of both 10 U.S.C. 2354 and Pub.
L. 85-804. Pub. L. 85-804 will apply
only to work to which 10 U.S.C. 2354 does not apply. Actions under Pub. L. 85-804 must also comply
with FAR Subpart 50.4.
235.070-3 Contract clauses.
When the contractor is
to be indemnified in accordance with 235.070-1, use either—
(a) The clause at
252.235-7000, Indemnification Under 10 U.S.C. 2354--Fixed Price; or
(b) The clause at
252.235-7001, Indemnification Under 10 U.S.C. 2354--Cost-Reimbursement, as
appropriate.
235.071 Export-controlled items.
For
requirements regarding access to export-controlled items, see Subpart 204.73.
235.072 Additional contract clauses.
(a) Use the clause at
252.235-7002, Animal Welfare, or one substantially the same, in solicitations
and contracts awarded in the
(b) Use the clause at
252.235-7003, Frequency Authorization, in solicitations and contracts for
developing, producing, constructing, testing, or operating a device requiring a
frequency authorization.
(c) Use the clause at
252.235-7010, Acknowledgment of Support and Disclaimer, in solicitations and
contracts for research and development.
(d) Use the clause at
252.235-7011, Final Scientific or Technical Report, in solicitations and contracts
for research and development.