PART 235—RESEARCH AND DEVELOPMENT CONTRACTING Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. Source: 56 FR 36416, July 31, 1991, unless otherwise noted. 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. [65 FR 32040, May 22, 2000] 235.006 Contracting methods and contract type. (b)(i) For major defense acquisition programs as defined in 10 U.S.C. 4201— (A) Follow the procedures at 234.004; and (B) Notify the milestone decision authority 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 ( 2 ( 3 1 2 ( i ( ii 3 i (B) Obtain USD(A&S) approval of the Government's prenegotiation position before negotiations begin, and obtain USD(A&S) approval of the negotiated agreement with the contractor before the agreement is executed, for any action that is— ( 1 ( 2 ( 3 [73 FR 4118, Jan. 24, 2008, as amended at 84 FR 65308, Nov. 27, 2019; 87 FR 65513, Oct. 28, 2022; 87 FR 76995, Dec. 16, 2022] 235.006-70 Manufacturing Technology Program. In accordance with 10 U.S.C. 4841(d) and 4872, 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). [65 FR 2058, Jan. 13, 2000, as amended at 69 FR 65092, Nov. 10, 2004; 87 FR 76995, Dec. 16, 2022] 235.006-71 Competition. (a)(1) Use of a broad agency announcement with peer or scientific review for the award of science and technology proposals in accordance with 235.016(a) fulfills the requirement for full and open competition (see 206.102(d)(2)). (2) Use of a commercial solutions opening with scientific, technological, or other subject-matter expert peer review for the award of innovative solutions or potential capabilities in accordance with subpart 212.70 fulfills the requirement for full and open competition (see 206.102-70). (b) For a contract that is initially awarded from the competitive selection of a proposal resulting from a broad agency announcement, see 234.005-1 for the use of contract line items or contract options for the development and demonstration or initial production of technology developed under the contract or the delivery of initial or additional items. [75 FR 71563, Nov. 24, 2010, as amended at 84 FR 4366, Feb. 15, 2019; 87 FR 25145, Apr. 28, 2022; 88 FR 55940, Aug. 17, 2023] 235.008 Evaluation for award. See 209.570 for limitations on the award of contracts to contractors acting as lead system integrators. [73 FR 1825, Jan. 10, 2008] 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). [69 FR 65092, Nov. 10, 2004] 235.015-70 Special use allowances for research facilities acquired by educational institutions. (a) Definitions. (1) Research facility (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 (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. (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. (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. (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. [56 FR 36416, July 31, 1991, as amended at 60 FR 29500, June 5, 1995] 235.016 Broad agency announcement. (a) General. (i) Basic research (budget activity 6.1). (ii) Applied research (budget activity 6.2). (iii) Advanced technology development (budget activity 6.3). (iv) Advanced component development and prototypes (budget activity 6.4). [84 FR 4366, Feb. 15, 2019] 235.017 Federally Funded Research and Development Centers. (a) Policy. [58 FR 28471, May 13, 1993] 235.017-1 Sponsoring agreements. (c)(4) DoD-sponsoring 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, Public Law 103-337). [60 FR 61598, Nov. 30, 1995, as amended at 69 FR 65092, Nov. 10, 2004] 235.070 Indemnification against unusually hazardous risks. 235.070-1 Indemnification under research and development contracts. (a) Under 10 U.S.C. 3861, 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. [56 FR 36416, July 31, 1991, as amended at 64 FR 51076, Sept. 21, 1999; 87 FR 76995, Dec. 16, 2022] 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. 3861 and Public Law 85-804. Public Law 85-804 will apply only to work to which 10 U.S.C. 3861 does not apply. Actions under Public Law 85-804 must also comply with FAR 50.104-3. [56 FR 36416, July 31, 1991, as amended at 78 FR 21850, Apr. 12, 2013; 87 FR 76995, Dec. 16, 2022] 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. 3861—Fixed Price; or (b) The clause at 252.235-7001, Indemnification Under 10 U.S.C. 3861—Cost-Reimbursement, as appropriate. [56 FR 36284, July 31, 1991, as amended at 87 FR 76995, Dec. 16, 2022] 235.071 Export-controlled items. For requirements regarding access to export-controlled items, see 225.7901. [73 FR 42278, July 21, 2008, as amended at 78 FR 36111, June 17, 2013] 235.072 Additional contract clauses. (a) Use a clause substantially the same as the clause at 252.235-7002, Animal Welfare, in solicitations and contracts involving research, development, test, and evaluation or training that use live vertebrate animals. (b) Use the basic or the alternate of 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. (1) Use the basic clause if agency procedures do not authorize the use of DD Form 1494, Application for Equipment Frequency Allocation, to obtain radio frequency authorization. (2) Use the alternate I clause if agency procedures authorize the use of DD Form 1494, Application for Equipment Frequency Allocation, to obtain frequency authorization. (c) Use the clause at 252.235-7010, Acknowledgement 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. (e) Use the clause at 252.235-7004, Protection of Human Subjects, in solicitations and contracts that include or may include research involving human subjects in accordance with 32 CFR Part 219, DoD Directive 3216.02, and 10 U.S.C. 980, including research that meets exemption criteria under 32 CFR 219.101(b). The clause— (1) Applies to solicitations and contracts awarded by any DoD component, regardless of mission or funding Program Element Code; and (2) Does not apply to use of cadaver materials alone, which are not directly regulated by 32 CFR Part 219 or DoD Directive 3216.02, and which are governed by other DoD policies and applicable State and local laws. [56 FR 36416, July 31, 1991, as amended at 60 FR 29500, June 5, 1995; 70 FR 35545, June 21, 2005. Redesignated at 73 FR 42278, July 21, 2008; 74 FR 37645, 37648, July 29, 2009; 79 FR 17447, Mar. 28, 2014; 79 FR 23501, Dec. 11, 2014]