32 C.F.R. Subpart J—Definitions of Terms Used in This Part
Title 32 - National Defense
A payment made to a recipient before the recipient disburses the funds for program purposes. Advance payments may be based upon recipients' requests or predetermined payment schedules. Research that creates new technology or demonstrates the viability of applying existing technology to new products and processes in a general way. Advanced research is most closely analogous to precompetitive technology development in the commercial sector (i.e., early phases of research and development on which commercial competitors are willing to collaborate, because the work is not so coupled to specific products and processes that the results of the work must be proprietary). It does not include development of military systems and hardware where specific requirements have been defined. It is typically funded in Research, Development, Test and Evaluation programs within Budget Activity 3, Advanced Technology Development. An official with the authority to enter into, administer, and/or terminate TIAs (see §37.125). Efforts that attempt to determine and exploit the potential of scientific discoveries or improvements in technology such as new materials, devices, methods and processes. It typically is funded in Research, Development, Test and Evaluation programs within Budget Activity 2, Applied Research (also known informally as research category 6.2) programs. Applied research normally follows basic research but may not be fully distinguishable from the related basic research. The term does not include efforts whose principal aim is the design, development, or testing of specific products, systems or processes to be considered for sale or acquisition; these efforts are within the definition of “development.” An agreement among the participants in a consortium that is not formally incorporated as a legal entity, by which they establish their relative rights and responsibilities (see §37.515). The transfer of a thing of value to a recipient to carry out a public purpose of support or stimulation authorized by a law of the United States (see 31 U.S.C. 6101(3)). Grants, cooperative agreements, and technology investment agreements are examples of legal instruments used to provide assistance. An audit of a single TIA, usually done at the cognizant agreements officer's request, to help resolve issues that arise during or after the performance of the research project. An award-specific audit of an individual award differs from a periodic audit of a participant (as defined in §37.1325). Efforts directed toward increasing knowledge and understanding in science and engineering, rather than the practical application of that knowledge and understanding. It typically is funded within Research, Development, Test and Evaluation programs in Budget Activity 1, Basic Research (also known informally as research category 6.1). A recipient's cash expenditures made as contributions toward cost sharing, including expenditures of money that third parties contributed to the recipient. A for-profit firm or segment of a for-profit firm (e.g., a division or other business unit) that does a substantial portion of its business in the commercial marketplace. A group of research-performing organizations that either is formally incorporated or that otherwise agrees to jointly carry out a research project (see definition of “articles of collaboration,” in §37.1225). A legal instrument which, consistent with 31 U.S.C. 6305, is used to enter into the same kind of relationship as a grant (see definition of “grant,” in §37.1295), except that substantial involvement is expected between the Department of Defense and the recipient when carrying out the activity contemplated by the cooperative agreement. The term does not include “cooperative research and development agreements” as defined in 15 U.S.C. 3710a. A portion of project costs that are borne by the recipient or non-Federal third parties on behalf of the recipient, rather than by the Federal Government. Recorded information, regardless of form or method of recording. The term includes technical data, which are data of a scientific or technical nature, and computer software. It does not include financial, cost, or other administrative information related to the administration of a TIA. The Office of the Secretary of Defense, a Military Department, a Defense Agency, or a DoD Field Activity. Tangible property, other than real property, that has a useful life of more than one year and an acquisition cost of $5,000 or more per unit. A Federal Government contract or assistance award for which the amounts of interim payments or the total amount ultimately paid (i.e., the sum of interim payments and final payment) are subject to redetermination or adjustment, based on the amounts expended by the recipient in carrying out the purposes for which the award was made. Most Federal Government grants and cooperative agreements are expenditure-based awards. Charges made to the project or program. They may be reported either on a cash or accrual basis, as shown in the following table: A legal instrument which, consistent with 31 U.S.C. 6304, is used to enter into a relationship: (a) The principal purpose of which is to transfer a thing of value to the recipient to carry out a public purpose of support or stimulation authorized by a law of the United States, rather than to acquire property or services for the Department of Defense's direct benefit or use. (b) In which substantial involvement is not expected between the Department of Defense and the recipient when carrying out the activity contemplated by the grant. The value of non-cash contributions made by a recipient or non-Federal third parties toward cost sharing. An educational institution that: (a) Meets the criteria in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001); and (b) Is subject to the provisions of OMB Circular A–110, “Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,” as implemented by the Department of Defense at 32 CFR part 32. Inventions, data, works of authorship, and other intangible products of intellectual effort that can be owned by a person, whether or not they are patentable or may be copyrighted. The term also includes mask works, such as those used in microfabrication, whether or not they are tangible. (a) Any corporation, trust, association, cooperative or other organization that: (1) Is operated primarily for scientific, educational, service, or similar purposes in the public interest. (2) Is not organized primarily for profit; and (3) Uses its net proceeds to maintain, improve, or expand the operations of the organization. (b) The term includes any nonprofit institution of higher education or nonprofit hospital. A consortium member or, in the case of an agreement with a single for-profit entity, the recipient. Note that a for-profit participant may be a firm or a segment of a firm (e.g., a division or other business unit). An audit of a participant, performed at an agreed-upon time (usually a regular time interval), to determine whether the participant as a whole is managing its Federal awards in compliance with the terms of those awards. Appendix C to this part describes what such an audit may cover. A periodic audit of a participant differs from an award-specific audit of an individual award (as defined in §37.1235). A Federal Government procurement contract. It is a legal instrument which, consistent with 31 U.S.C. 6303, reflects a relationship between the Federal Government and a State, a local government, or other recipient when the principal purpose of the instrument is to acquire property or services for the direct benefit or use of the Federal Government. See the more detailed definition of the term “contract” at 48 CFR 2.101. Gross income earned by the recipient or a participant that is generated by a supported activity or earned as a direct result of a TIA. Program income includes but is not limited to: income from fees for performing services; the use or rental of real property, equipment, or supplies acquired under a TIA; the sale of commodities or items fabricated under a TIA; and license fees and royalties on patents and copyrights. Interest earned on advances of Federal funds is not program income. A Federal Government program manager, scientific officer, or other individual who is responsible for managing the technical program being carried out through the use of a TIA. Real property, equipment, supplies, and intellectual property, unless stated otherwise. Land, including land improvements, structures and appurtenances thereto, but excluding movable machinery and equipment. An organization or other entity that receives a TIA from a DoD Component. Note that a for-profit recipient may be a firm or a segment of a firm (e.g., a division or other business unit). Basic, applied, and advanced research, as defined in this subpart. Tangible property other than real property and equipment. Supplies have a useful life of less than one year or an acquisition cost of less than $5,000 per unit. The cancellation of a TIA, in whole or in part, at any time prior to either: (a) The date on which all work under the TIA is completed; or (b) The date on which Federal sponsorship ends, as given in the award document or any supplement or amendment thereto. A special class of assistance instruments used to increase involvement of commercial firms in defense research programs and for other purposes (described in appendix A to this part) related to integrating the commercial and defense sectors of the nation's technology and industrial base. A technology investment agreement may be a cooperative agreement with provisions tailored for involving commercial firms (as distinct from a cooperative agreement subject to all of the requirements in 32 CFR part 34), or another kind of assistance transaction (see appendix B to this part). What your TIA is a cooperative agreement or another type of assistance transaction, as discussed in Appendix B to this part, the terms and conditions of the agreement must provide for recipients' compliance with applicable Federal statues and regulations. This appendix lists some of the more common requirements to aid you in identifying one that apply to your TIA. The list is not intended to be all-inclusive, however, and you may need to consult legal counsel to verify whether there are other that apply in your situation (e.g., due to a provision in the appropriations act for the specific funds that you are using or due to a statute or rule that applies to a particular program or type of activity). A. Certifications One requirement that applies to all TIA's currently requires you to obtain a certification at the time of proposal. That requirement is in a Governmentwide common rule about lobbying prohibitions, which is implemented by the DoD at 32 CFR part 28. The prohibitions apply to all financial assistance. Appendix A to 32 CFR part 22 includes a sample provision that you may use, to have proposers incorporate the certification by reference into their proposals. B. Assurance That Apply to All TIAs DoD policy is to use certification, as described in the preceding paragraph, only for national policy requirement that specifically require them. The usual approach to a communicating other national policy requirements to recipients is to incorporate them as award terms of conditions, or assurances. Appendix B to 32 CFR part 22 lists national policy requirements that commonly apply to grants and cooperative agreements. It also has suggested language for assurances to incorporate the requirements in award documents. Of those requirements, the following six apply to all TIAs: 1. Requirements concerning debarment and suspension in the Governmentwide common rule that the DoD has codified in 32 CFR part 25. The requirements apply to all nonprocurement transactions. 2. Requirements concerning drug-free workplace in the Governmentwide common rule that the DoD has codified at 32 CFR part 26. The requirements apply to all financial assistance. 3. Prohibitions on discrimination the basis of race, color, or national origin in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d, et seq. These apply to all financial assistance. They require recipients to flow down the prohibitions to any subrecipients performing a part of the substantive research program (as opposed to supplies from whom recipients purchase goods or services). For further information, see item 1. under the heading “Nondiscrimination” in Appendix B to 32 CFR part 22. 4. Prohibitions on discrimination on the basis of age, in the Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). They apply to all financial assistance and require flow down to subrecipients. For further information, see item d. under the heading “Nondiscrimination” in Appendix B to 32 CFR part 22. 5. Prohibition on discrimination on the basis of handicap, in section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). They apply to all financial assistance and require flow down to subrecipients. For further information, see item e.1. under the heading “Nondiscrimination” in Appendix B to 32 CFR part 22. 6. Preferences for use of U.S.-flag air carriers in the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118), which apply to uses of U.S. Government funds. C. Other Assurances Additional requirements listed in Appendix B to 32 CFR part 22 may apply in certain circumstances, as follows: 1. If construction work is to be done under a TIA or its subawards, it is subject to the prohibitions in Executive Order 11246 on discrimination on the basis of race, color, religion, sex, or national origin. For further information, see item b. under the heading “Nondiscrimination” in Appendix B to 32 CFR part 22. 2. If the research involves human subjects or animals, it is subject to the requirements in item a. or b., respectively, under the heading “Live organisms” in Appendix B to 32 CFR part 22. 3. If the research involves actions that may affect the environment, it is subject to the National Environmental Policy Act, which is item b.1. under the heading “Environmental Standards” in Appendix B to 32 CFR part 22. It also may be subject to one or more of the other requirements in items b.2. through b.6. under that heading, which concern flood-prone areas, coastal zones, coastal barriers, wild and scenic rivers, and underground sources of drinking water. 4. If the project may impact a historic property, it is subject to the National Historic Preservation Act of 1966 (16 U.S.C. 470, et seq.), as described under the heading “National Historic Preservation” in Appendix B to 32 CFR part 22. [68 FR 47160, Aug. 7, 2003, as amended at 70 FR 49477, Aug. 23, 2005] A. As discussed in §37.705, you must inform recipients of any national policy requirements that flow down to their purchases of goods or services (e.g., supplies or equipment) under their TIAs. Note that purchases of goods or services differ from subawards, which are for substantive research program performance. B. Appendix A to 32 CFR part 34 lists seven national policy requirements that commonly apply to firms' purchases under grants or cooperative agreements. Of those seven, two that apply to all recipients' purchases under TIAs are: 1. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). A contractor submitting a bid to the recipient for a contract award of $100,000 or more must file a certification with the recipient that it has not and will not use Federal appropriations for certain lobbying purposes. The contractor also must disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. For further details, see 32 CFR part 28, the DoD's codification of the Governmentwide common rule implementing this amendment. 2. Debarment and suspension. A contract award with an amount expected to equal or exceed $25,000 and certain other contract awards (see 32 CFR 25.220) shall not be made to parties listed on the Governmentwide Excluded Parties List System, in accordance with the DoD adoption at 32 CFR part 25 of the Governmentwide rule implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), “Debarment and Suspension.” The Excluded Parties List System contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than E.O. 12549. C. One other requirement applies only in cases where construction work is to be performed under the TIA with Federal funds or recipient funds counted toward required cost sharing: 1. Equal Employment Opportunity. Although construction work should happen rarely under a TIA, the agreements officer in that case should inform the recipient that Department of Labor regulations at 41 CFR 60–1.4(b) prescribe a clause that must be incorporated into construction awards and subawards. Further details are provided in Appendix B to Part 22 of the DoDGARs (32 CFR part 22), in section b. under the heading “Nondiscrimination.” [68 FR 47160, Aug. 7, 2003, as amended at 70 FR 49478, Aug. 23, 2005]
Title 32: National Defense
PART 37—TECHNOLOGY INVESTMENT AGREEMENTS
Subpart J—Definitions of Terms Used in This Part
§ 37.1205 Advance.
§ 37.1210 Advanced research.
§ 37.1215 Agreements officer.
§ 37.1220 Applied research.
§ 37.1225 Articles of collaboration.
§ 37.1230 Assistance.
§ 37.1235 Award-specific audit.
§ 37.1240 Basic research.
§ 37.1245 Cash contributions.
§ 37.1250 Commercial firm.
§ 37.1255 Consortium.
§ 37.1260 Cooperative agreement.
§ 37.1265 Cost sharing.
§ 37.1270 Data.
§ 37.1275 DoD Component.
§ 37.1280 Equipment.
§ 37.1285 Expenditure-based award.
§ 37.1290 Expenditures or outlays.
§ 37.1295 Grant.
§ 37.1300 In-kind contributions.
§ 37.1305 Institution of higher education.
§ 37.1310 Intellectual property.
§ 37.1315 Nonprofit organization.
§ 37.1320 Participant.
§ 37.1325 Periodic audit.
§ 37.1330 Procurement contract.
§ 37.1335 Program income.
§ 37.1340 Program official.
§ 37.1345 Property.
§ 37.1350 Real property.
§ 37.1355 Recipient.
§ 37.1360 Research.
§ 37.1365 Supplies.
§ 37.1370 Termination.
§ 37.1375 Technology investment agreements.
Appendix A to Part 37—What Is the Civil-Military Integration Policy That Is the Basis for Technology Investment Agreements?
Appendix B to Part 37—What Type of Instrument Is a TIA and What Statutory Authorities Does It Use?
Appendix C to Part 37—What Is the Desired Coverage for Periodic Audits of For-Profit Participants To Be Audited by IPAs?
Appendix D to Part 37—What Common National Policy Requirements May Apply and Need To Be Included in TIAs?
Appendix E to Part 37—What Provisions May a Participant Need To Include When Purchasing Goods or Services Under a TIA?
