32 C.F.R. Subpart H—Executing the Award
Title 32 - National Defense
At the time of the award, you must: (a) Ensure that the award document contains the appropriate terms and conditions and is signed by the appropriate parties, in accordance with §§37.1005 through 37.1015. (b) Document your analysis of the agreement in the award file, as discussed in §37.1020. (c) Provide information about the award to offices responsible for reporting, as described in §§37.1025 through 37.1035. (d) Distribute copies of the award document, as required by §37.1045. You are responsible for ensuring that the award document is complete and accurate. Your objective is to create a document that: (a) Addresses all issues; (b) States requirements directly. It is not helpful to readers to incorporate statutes or rules by reference, without sufficient explanation of the requirements. You generally should not incorporate clauses from the Federal Acquisition Regulation (48 CFR parts 1–53) or Defense Federal Acquisition Regulation Supplement (48 CFR parts 201–253), because those provisions are designed for procurement contracts that are used to acquire goods and services, rather than for TIAs or other assistance instruments. (c) Is written in clear and concise language, to minimize potential ambiguity. You necessarily will design and negotiate a TIA individually to meet the specific requirements of the particular project, so the complete list of substantive issues that you will address in the award document may vary. Every award document must address: (a) Project scope. The scope is an overall vision statement for the project, including a discussion of the project's purpose, objectives, and detailed military and commercial goals. It is a critical provision because it provides a context for resolving issues that may arise during post-award administration. In a fixed-support TIA, you also must clearly specify the well-defined outcomes that reliably indicate the amount of effort expended and serve as the basis for the level of the fixed support (see §§37.305 and 37.560(a)). (b) Project management. You should describe the nature of the relationship between the Federal Government and the recipient; the relationship among the participants, if the recipient is an unincorporated consortium; and the overall technical and administrative management of the project. TIAs are used to carry out collaborative relationships between the Federal Government and the recipient. Consequently, there must be substantial involvement of the DoD program official (see §37.220) and usually the administrative agreements officer. The program official provides technical insight, which differs from the usual technical oversight of a project. The management provision also should discuss how you and the recipient will make any modifications to the TIA. (c) Termination, enforcement, and disputes. Your TIA must provide for termination, enforcement remedies, and disputes and appeals procedures, in accordance with §37.925. (d) Funding. You must: (1) Show the total amount of the agreement and the total period of performance. (2) If the TIA is an expenditure-based award, state the Government's and recipient's agreed-upon cost shares. The award document should identify values for any in-kind contributions, determined in accordance with §§37.530 through 37.555, to preclude later disagreements about them. (3) Specify the amount of Federal funds obligated and the performance period for those obligated funds. (4) State, if the agreement is to be incrementally funded, that the Government's obligation for additional funding is contingent upon the availability of funds and that no legal obligation on the part of the Government exists until additional funds are made available and the agreement is amended. You also must include a prior approval requirement for changes in plans requiring additional Government funding, in accordance with §37.825. (e) Payment. You must choose the payment method and tell the recipient how, when, and where to submit payment requests, as discussed in §§37.805 through 37.815. Your payment method must take into account sound cash management practices by avoiding unwarranted cash advances. For an expenditure-based TIA, your payment provision must require the return of interest should excess cash balances occur, in accordance with §37.820. For any TIA using the milestone payment method described in §37.805(c), you must include language notifying the recipient that post-award administrators may adjust amounts of future milestone payments if a project's expenditures fall too far below the projections that were the basis for setting the amounts (see §37.575(c) and §37.1105(c)). (f) Records retention and access to records. You must include the records retention requirement at §37.910. You also must provide for access to for-profit and nonprofit participants' records, in accordance with §37.915 and §37.920. (g) Patents and data rights. In designing the patents and data rights provision, you must set forth the minimum required Federal Government rights in intellectual property generated under the award and address related matters, as provided in §§37.840 through 37.875. It is important to define all essential terms in the patent rights provision. (h) Foreign access to technology. You must include a provision, in accordance with §37.875, concerning foreign access and domestic manufacture of products using technology generated under the award. (i) Title to, management of, and disposition of tangible property. Your property provisions for for-profit and nonprofit participants must be in accordance with §§37.685 through 37.700. (j) Financial management systems. For an expenditure-based award, you must specify the minimum standards for financial management systems of both for-profit and nonprofit participants, in accordance with §§37.615 and 37.620. (k) Allowable costs. If the TIA is an expenditure-based award, you must specify the standards that both for-profit and nonprofit participants are to use to determine which costs may be charged to the project, in accordance with §§37.625 through 37.635, as well as §37.830. (l) Audits. If your TIA is an expenditure-based award, you must include an audit provision for both for-profit and nonprofit participants and subrecipients, in accordance with §§37.640 through 37.670 and §37.680. (m) Purchasing system standards. You should include a provision specifying the standards in §§37.705 and 37.710 for purchasing systems of for-profit and nonprofit participants, respectively. (n) Program income. You should specify requirements for program income, in accordance with §37.835. (o) Financial and programmatic reporting. You must specify the reports that the recipient is required to submit and tell the recipient when and where to submit them, in accordance with §§37.880 through 37.905. (p) Assurances for applicable national policy requirements. You must incorporate assurances of compliance with applicable requirements in Federal statutes, Executive orders, or regulations (except for national policies that require certifications). Appendix D to this part contains a list of commonly applicable requirements that you need to augment with any specific requirements that apply in your particular circumstances (e.g., general provisions in the appropriations act for the specific funds that you are obligating). (q) Other routine matters. The agreement should address any other issues that need clarification, including who in the Government will be responsible for post-award administration and the statutory authority or authorities for entering into the TIA (see appendix B to this part for a discussion of statutory authorities). In addition, the agreement must specify that it takes precedence over any inconsistent terms and conditions in collateral documents such as attachments to the TIA or the recipient's articles of collaboration. (a) If the recipient is a consortium that is not formally incorporated and the consortium members prefer to have the agreement signed by all of them individually, you may execute the agreement in that manner. (b) If they wish to designate one consortium member to sign the agreement on behalf of the consortium as a whole, you should not decide whether to execute the agreement in that way until you review the consortium's articles of collaboration with legal counsel. (1) The purposes of the review are to: (i) Determine whether the articles properly authorize one participant to sign on behalf of the other participants and are binding on all consortium members with respect to the research project; and (ii) Assess the risk that otherwise could exist when entering into an agreement signed by a single member on behalf of a consortium that is not a legal entity. For example, you should assess whether the articles of collaboration adequately address consortium members' future liabilities related to the research project (i.e., whether they will have joint and severable liability). (2) After the review, in consultation with legal counsel, you should determine whether it is better to have all of the consortium members sign the agreement individually or to allow them to designate one member to sign on all members' behalf.
Title 32: National Defense
PART 37—TECHNOLOGY INVESTMENT AGREEMENTS
Subpart H—Executing the Award
§ 37.1000 What are my responsibilities at the time of award?
The Award Document
§ 37.1005 What are my general responsibilities concerning the award document?
§ 37.1010 What substantive issues should my award document address?
§ 37.1015 How do I decide who must sign the TIA if the recipient is an unincorporated consortium?
Reporting Information About the Award
§ 37.1020 What must I document in my award file?
You should include in your award file an agreements analysis in which you:
(a) Briefly describe the program and detail the specific military and commercial benefits that should result from the project supported by the TIA. If the recipient is a consortium that is not formally incorporated, you should attach a copy of the signed articles of collaboration.
(b) Describe the process that led to the award of the TIA, including how you and program officials solicited and evaluated proposals and selected the one supported through the TIA.
(c) Explain how you decided that a TIA was the most appropriate instrument, in accordance with the factors in Subpart B of this part. Your explanation must include your answers to the relevant questions in §37.225(a) through (d).
(d) Explain how you valued the recipient's cost sharing contributions, in accordance with §§37.530 through 37.555. For a fixed-support TIA, you must document the analysis you did (see §37.560) to set the fixed level of Federal support; the documentation must explain how you determined the recipient's minimum cost share and show how you estimated the expenditures required to achieve the project outcomes.
(e) Document the results of your negotiation, addressing all significant issues in the TIA's provisions. For example, this includes specific explanations if you:
(1) Specify requirements for a participant's systems that vary from the standard requirements in §§37.615(a), 37.625(a), 37.630, or 37.705(a) in cases where those sections provide flexibility for you to do so.
(2) Provide that any audits are to be performed by an IPA, rather than the DCAA, where permitted under §37.650. Your documentation must include:
(i) The names and addresses of business units for which IPAs will be the auditors;
(ii) Estimated amounts of Federal funds expected under the award for those business units; and
(iii) The basis (e.g., a written statement from the recipient) for your judging that the business units do not currently perform under types of awards described in §37.650(b)(1) and (2) and are not willing to grant the DCAA audit access.
(3) Include an intellectual property provision that varies from Bayh-Dole requirements.
(4) Determine that cost sharing is impracticable.
§ 37.1025 Must I report information to the Defense Assistance Awards Data System?
Yes, you must give the necessary information about the award to the office in your organization that is responsible for preparing DD Form 2566, “DoD Assistance Award Action Report,” reports for the Defense Assistance Award Data System, to ensure timely and accurate reporting of data required by 31 U.S.C. 6101–6106 (see 32 CFR part 21, subpart E).
§ 37.1030 What information must I report to the Defense Technical Information Center?
(a) For any TIA, you must give your answers to the questions in §37.225(a) through (d) to the office in your DoD Component that is responsible for providing data on TIAs to the DTIC. Contact DTIC staff either by electronic mail at [email protected], by telephone at 1–800–225–3842, or at DTIC-OCA, 8725 John J. Kingman Rd., Suite 0944, Fort Belvoir, VA 22060–6218, if you are unsure about the responsible office in your DoD Component. The DTIC compiles the information to help the Department of Defense measure the Department-wide benefits of using TIAs and assess the instruments' value in helping to meet the policy objectives described in §37.205(b) and appendix A to this part.
(b) If the TIA uses the authority of 10 U.S.C. 2371, as described in §37.1035, your information submission for the DTIC under paragraph (a) of this section must include the additional data required for the DoD's annual report to Congress.
(c) If, as permitted under §37.650, the TIA includes a provision allowing a for-profit participant to have audits performed by an IPA, rather than the DCAA, you must report that fact with the other information you submit about the TIA. Note that you also must include information about any use of IPAs permitted by subawards that participants make to for-profit firms, as provided in §37.670. Information about a subaward under the TIA must be reported even if you receive the information in a subsequent year, when information about the TIA itself does not need to be reported.
(d) The requirements in this section to report information to the DTIC should not be confused with the post-award requirement to forward copies of technical reports to the DTIC, as described at §§37.890 and 37.895. The reporting requirements in this section are assigned the Report Control Symbol DD-AT&L(A) 1936.
§ 37.1035 How do I know if my TIA uses the 10 U.S.C. 2371 authority and I must report additional data under §37.1030(b)?
As explained in appendix B to this part, a TIA uses the authority of 10 U.S.C. 2371 and therefore must be included in the DoD's annual report to Congress on the use of 10 U.S.C. 2371 authorities if it:
(a) Is an assistance transaction other than a grant or cooperative agreement, by virtue of its patent rights provision; or
(b) Includes a provision to recover funds from a recipient, as described at §37.580.
§ 37.1040 When and how do I report information required by §37.1035?
Information that you report, in accordance with §37.1030, to the office that your DoD Component designates as the central point for reporting to the DTIC must be:
(a) Submitted by the dates that your central point establishes (which is consistent with the schedule DTIC specifies to DoD Components).
(b) In the format that your central point provides (which is consistent with the format that the DTIC specifies to DoD Components).
Distributing Copies of the Award Document
§ 37.1045 To whom must I send copies of the award document?
You must send a copy of the award document to the:
(a) Recipient. You must include on the first page of the recipient's copy a prominent notice about the current DoD requirements for payment by electronic funds transfer (EFT).
(b) Office you designate to administer the TIA. You are strongly encouraged to delegate post-award administration to the regional office of the Defense Contract Management Agency or Office of Naval Research that administers awards to the recipient. When delegating, you should clearly indicate on the cover sheet or first page of the award document that the award is a TIA, to help the post-award administrator distinguish it from other types of assistance instruments.
(c) Finance and accounting office designated to make the payments to the recipient.
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