[Federal Register Volume 67, Number 166 (Tuesday, August 27, 2002)]
[Rules and Regulations]
[Pages 54955-54957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21267]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 3

RIN 0790-AG92


Transactions Other Than Contracts, Grants, or Cooperative 
Agreements for Prototype Projects

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule.

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SUMMARY: This final rule codifies the conditions for appropriate use 
and defines a nontraditional Defense contractor consistent with section 
803 of the Floyd D. Spence National Defense Authorization Act for 
Fiscal Year 2001. Representatives of the military departments, Defense 
agencies and other DoD activities, have agreed on a final rule that 
amends the interim rule as a result of comments received. Audit policy 
is still being discussed and will be addressed by a separate rule, as 
appropriate.

EFFECTIVE DATE: This final rule is effective August 27, 2002.

FOR FURTHER INFORMATION CONTACT: Teresa Brooks, (703) 695-8567.

SUPPLEMENTARY INFORMATION:

Background and Purpose

    Section 845 of the National Defense Authorization Act for Fiscal 
Year 1994, Public Law 103-160, as amended, authorizes the Secretary of 
a Military Department, the Director of Defense Advanced Research 
Projects Agency and any other official designated by the Secretary of 
Defense, to enter into transactions other than contracts, grants or 
cooperative agreements in certain situations for prototype projects 
that are directly relevant to weapons or weapon systems proposed to be 
acquired or developed by the Department of Defense. Such transactions 
are commonly referred to as ``other transaction'' agreements for 
prototype projects. To the extent that a particular statute or 
regulation is limited in its applicability to the use of a procurement 
contract, it would generally not apply to ``other transactions'' for 
prototype projects.
    Part 3 to 32 CFR was established to codify policy pertaining to 
prototype ``other transactions'' that have a significant impact on the 
public and are subject to rulemaking. Additional guidance on prototype 
``other transactions'' directed at Government officials can be found on 
the Defense Procurement web site at: http://www.osd.dp.mil.
    A proposed rule was published in the Federal Register for public 
comment on November 21, 2001 (66 FR 58422-58425). A notice of public 
meeting was published in the Federal Register on March 4, 2002 (67 FR 
9632) and held on March 27, 2002. The proposed rule addressed 
conditions on use of ``other transactions'' for prototype projects, the 
nontraditional Defense contractor definition and audit policy. Comments 
on the proposed rule were received from five respondents and 
approximately 50 representatives of Government and industry attended 
the public meeting. The majority of the written comments and discussion 
at the public meeting focused on the audit policy and will be addressed 
in a later rule. Only one respondent commented on the conditions of law 
and none commented on the definition of a nontraditional Defense 
contractor. The following summarizes the comments regarding the 
conditions of law and the disposition.

A. Consistency of Terms

    One respondent identified the use of undefined terms that are 
confusing (e.g., ``subordinate element of the party or entities,'' 
``awardee'') and recommended expanding upon defined terms such a 
business unit and segment. The respondent recommended defined terms be 
consistently used through out the rule or definitions be added for 
undefined terms.
    Response: The DoD agrees. The final rule includes additional 
definitions and made changes to ensure consistent use throughout the 
rule.

B. Applicability of Limitations

    One respondent(s) questioned whether the statement ``As a matter of 
policy, these same restrictions apply any time cost sharing may be 
recognized when using OTA'' was intended to apply to all OTAs, not just 
OTAs for prototype projects. The respondent recommended it be deleted 
from this rule and be included in a new rule that applies to all OTA.
    Response: The DoD agrees the statement was confusing. The final 
rule establishes ``Limitations on Cost-Sharing'' as a separate section 
and clarifies that as a matter of policy, the cost-sharing limitations 
will also be applied to other OT agreements for prototype projects that 
provide for non-Federal cost-share.

[[Page 54956]]

Regulatory Evaluation

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that this rule is not a significant rule as 
defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.

Unfunded Mandates Reform Act (Sec. 202, Public Law 104-4)

    It has been certified that this rule does not contain a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that this part is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it would not, 
if promulgated, have a significant economic impact on a substantial 
number of small entities. The rule does not require additional record 
keeping or other significant expense by project participants.

Public Law 96-511, ``Paperwork Reduction Act of 1995'' (44 U.S.C. 3501 
et seq.)

    It has been certified that this rule does not impose any reporting 
or record keeping requirements under the Paperwork Reduction Act of 
1995.

Federalism (Executive Order 13132)

    It has been certified that this rule does not have federalism 
implications, as set forth in Executive Order 13132.

List of Subjects in 32 CFR part 3

    Government procurement, Transactions for prototype projects.

    Accordingly, part 3 of 32 CFR is amended as follows:

PART 3--TRANSACTIONS OTHER THAN CONTRACTS, GRANTS, OR COOPERATIVE 
AGREEMENTS FOR PROTOTYPE PROJECTS

    1. The authority citation for part 3 is revised to read as follows;

    Authority: Sec. 845, Pub. L. 103-160, 107 Stat. 1547, as 
amended.


    2. Section 3.1 is revised to read as follows:


Sec. 3.1  Purpose.

    This part consolidates rules that implement section 845 of the 
National Defense Authorization Act for Fiscal Year 1994, Public Law 
103-160, 107 Stat. 1547, as amended, and have a significant impact on 
the public. Section 845 authorizes the Secretary of a Military 
Department, the Director of Defense Advanced Research Projects Agency, 
and any other official designated by the Secretary of Defense, to enter 
into transactions other than contracts, grants, or cooperative 
agreements in certain situations for prototype projects that are 
directly relevant to weapons or weapon systems proposed to be acquired 
or developed by the Department of Defense.


Secs. 3.2, 3.3, and 3.4  [Redesignated as Secs. 3.3, 3.4, and 3.7]

    3. Section 3.2, 3.3, and 3.4 are redesignated as Secs. 3.3, 3.4, 
and 3.7, respectively.

    4. New Sec. 3.2 is added to read as follows:


Sec. 3.2  Background.

    ``Other transactions'' is the term commonly used to refer to the 10 
U.S.C. 2371 authority to enter into transactions other than contracts, 
grants or cooperative agreements. ``Other transactions'' are generally 
not subject to the Federal laws and regulations limited in 
applicability to contracts, grants or cooperative agreements. As such, 
they are not required to comply with the Federal Acquisition Regulation 
(FAR) and its supplements (48 CFR).

    5. Newly redesignated Sec. 3.4 is amended to add new definitions in 
alphabetical order to read as follows:


Sec. 3.4  Definitions.

    Agreements Officer. An individual with the authority to enter into, 
administer, or terminate OTs for prototype projects and make related 
determinations and findings.
    Awardee. Any business unit that is the direct recipient of an OT 
prototype agreement.
    Business unit. Any segment of an organization, or an entire 
business organization which is not divided into segments.
* * * * *
    Nontraditional Defense contractor. A business unit that has not, 
for a period of at least one year prior to the date of the OT 
agreement, entered into or performed on:
    (1) Any contract that is subject to full coverage under the cost 
accounting standards prescribed pursuant to section 26 of the Office of 
Federal Procurement Policy Act (41 U.S.C. 422) and the regulations 
implementing such section; or
    (2) Any other contract in excess of $500,000 to carry out prototype 
projects or to perform basic, applied, or advanced research projects 
for a Federal agency, that is subject to the Federal Acquisition 
Regulation.
    Segment. One of two or more divisions, product departments, plants, 
or other subdivisions of an organization reporting directly to a home 
office, usually identified with responsibility for profit and/or 
producing a product or service.
    Senior Procurement Executive. The following individuals:
    (1) Department of the Army--Assistant Secretary of the Army 
(Acquisition, Logistics and Technology);
    (2) Department of the Navy--Assistant Secretary of the Navy 
(Research, Development and Acquisition);
    (3) Department of the Air Force--Assistant Secretary of the Air 
Force (Acquisition);
    (4) The Directors of Defense Agencies who have been delegated 
authority to act as Senior Procurement Executive for their respective 
agencies.
    Subawardee. Any business unit of a party, entity or subordinate 
element performing effort under the OT prototype agreement, other than 
the awardee.

    6. New Sec. 3.5 is added to read as follows:


Sec. 3.5  Appropriate use.

    In accordance with statute, this authority may be used only when:
    (a) At least one nontraditional Defense contractor is participating 
to a significant extent in the prototype project; or
    (b) No nontraditional Defense contractor is participating to a 
significant extent in the prototype project, but at least one of the 
following circumstances exists:
    (1) At least one third of the total cost of the prototype project 
is to be paid out of funds provided by non-Federal parties to the 
transaction.
    (2) The Senior Procurement Executive for the agency determines in 
writing that exceptional circumstances justify the use of a transaction 
that provides for innovative business arrangements or structures that 
would not be feasible or appropriate under a procurement contract.
    7. New Sec. 3.6 is added to read as follows:


Sec. 3.6   Limitations on cost-sharing.

    (a) When a nontraditional Defense contractor is not participating 
to a significant extent in the prototype project and cost-sharing is 
the reason for using OT authority, then the non-Federal amounts counted 
as provided, or to be provided, by the business units of an awardee or 
subawardee participating in the performance of the OT agreement may not 
include costs that were incurred before the date on

[[Page 54957]]

which the OT agreement becomes effective. Costs that were incurred for 
a prototype project by the business units of an awardee or subawardee 
after the beginning of negotiations, but prior to the date the OT 
agreement becomes effective, may be counted as non-Federal amounts if 
and to the extent that the Agreements Officer determines in writing 
that:
    (1) The awardee or subawardee incurred the costs in anticipation of 
entering into the OT agreement; and
    (2) It was appropriate for the awardee or subawardee to incur the 
costs before the OT agreement became effective in order to ensure the 
successful implementation of the OT agreement.
    (b) As a matter of policy, these limitations on cost-sharing apply 
any time cost-sharing may be recognized when using OT authority for 
prototype projects.

    8. Newly redesignated Sec. 3.7 is amended by revising the section 
heading to read as follows:


Sec. 3.7  Comptroller General access.

* * * * *

    Dated: August 14, 2002.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 02-21267 Filed 8-26-02; 8:45 am]
BILLING CODE 5001-08-M