
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-107 Section 1048(i)(2)]
[Document affected by Public Law 107-107 Section 822]
[CITE: 10USC2371]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                PART IV--SERVICE, SUPPLY, AND PROCUREMENT
 
                  CHAPTER 139--RESEARCH AND DEVELOPMENT
 
Sec. 2371. Research projects: transactions other than contracts 
        and grants
        
    (a) Additional Forms of Transactions Authorized.--The Secretary of 
Defense and the Secretary of each military department may enter into 
transactions (other than contracts, cooperative agreements, and grants) 
under the authority of this subsection in carrying out basic, applied, 
and advanced research projects. The authority under this subsection is 
in addition to the authority provided in section 2358 of this title to 
use contracts, cooperative agreements, and grants in carrying out such 
projects.
    (b) Exercise of Authority by Secretary of Defense.--In any exercise 
of the authority in subsection (a), the Secretary of Defense shall act 
through the Defense Advanced Research Projects Agency or any other 
element of the Department of Defense that the Secretary may designate.
    (c) Advance Payments.--The authority provided under subsection (a) 
may be exercised without regard to section 3324 of title 31.
    (d) Recovery of Funds.--(1) A cooperative agreement for performance 
of basic, applied, or advanced research authorized by section 2358 of 
this title and a transaction authorized by subsection (a) may include a 
clause that requires a person or other entity to make payments to the 
Department of Defense or any other department or agency of the Federal 
Government as a condition for receiving support under the agreement or 
other transaction.
    (2) The amount of any payment received by the Federal Government 
pursuant to a requirement imposed under paragraph (1) may be credited, 
to the extent authorized by the Secretary of Defense, to the appropriate 
account established under subsection (f). Amounts so credited shall be 
merged with other funds in the account and shall be available for the 
same purposes and the same period for which other funds in such account 
are available.
    (e) Conditions.--(1) The Secretary of Defense shall ensure that--
        (A) to the maximum extent practicable, no cooperative agreement 
    containing a clause under subsection (d) and no transaction entered 
    into under subsection (a) provides for research that duplicates 
    research being conducted under existing programs carried out by the 
    Department of Defense; and
        (B) to the extent that the Secretary determines practicable, the 
    funds provided by the Government under a cooperative agreement 
    containing a clause under subsection (d) or a transaction authorized 
    by subsection (a) do not exceed the total amount provided by other 
    parties to the cooperative agreement or other transaction.

    (2) A cooperative agreement containing a clause under subsection (d) 
or a transaction authorized by subsection (a) may be used for a research 
project when the use of a standard contract, grant, or cooperative 
agreement for such project is not feasible or appropriate.
    (f) Support Accounts.--There is hereby established on the books of 
the Treasury separate accounts for each of the military departments and 
the Defense Advanced Research Projects Agency for support of research 
projects and development projects provided for in cooperative agreements 
containing a clause under subsection (d) and research projects provided 
for in transactions entered into under subsection (a). Funds in those 
accounts shall be available for the payment of such support.
    (g) Regulations.--The Secretary of Defense shall prescribe 
regulations to carry out this section.
    (h) Annual Report.--(1) Not later than 90 days after the end of each 
fiscal year, the Secretary of Defense shall submit to the Committee on 
Armed Services of the Senate and the Committee on Armed Services of the 
House of Representatives a report on the use by the Department of 
Defense during such fiscal year of--
        (A) cooperative agreements authorized under section 2358 of this 
    title that contain a clause under subsection (d); and
        (B) transactions authorized by subsection (a).

    (2) The report shall include, with respect to the cooperative 
agreements and other transactions covered by the report, the following:
        (A) The technology areas in which research projects were 
    conducted under such agreements or other transactions.
        (B) The extent of the cost-sharing among Federal Government and 
    non-Federal sources.
        (C) The extent to which the use of the cooperative agreements 
    and other transactions--
            (i) has contributed to a broadening of the technology and 
        industrial base available for meeting Department of Defense 
        needs; and
            (ii) has fostered within the technology and industrial base 
        new relationships and practices that support the national 
        security of the United States.

        (D) The total amount of payments, if any, that were received by 
    the Federal Government during the fiscal year covered by the report 
    pursuant to a clause described in subsection (d) that was included 
    in the cooperative agreements and other transactions, and the amount 
    of such payments, if any, that were credited to each account 
    established under subsection (f).

    (i) Protection of Certain Information From Disclosure.--(1) 
Disclosure of information described in paragraph (2) is not required, 
and may not be compelled, under section 552 of title 5 for five years 
after the date on which the information is received by the Department of 
Defense.
    (2)(A) Paragraph (1) applies to information described in 
subparagraph (B) that is in the records of the Department of Defense if 
the information was submitted to the Department in a competitive or 
noncompetitive process having the potential for resulting in an award, 
to the party submitting the information, of a cooperative agreement for 
performance of basic, applied, or advanced research authorized by 
section 2358 of this title or another transaction authorized by 
subsection (a).
    (B) The information referred to in subparagraph (A) is the 
following:
        (i) A proposal, proposal abstract, and supporting documents.
        (ii) A business plan submitted on a confidential basis.
        (iii) Technical information submitted on a confidential basis.

(Added Pub. L. 101-189, div. A, title II, Sec. 251(a)(1), Nov. 29, 1989, 
103 Stat. 1403; amended Pub. L. 101-510, div. A, title XIV, 
Sec. 1484(k)(9), Nov. 5, 1990, 104 Stat. 1719; Pub. L. 102-190, div. A, 
title VIII, Sec. 826, Dec. 5, 1991, 105 Stat. 1442; Pub. L. 102-484, 
div. A, title II, Sec. 217, Oct. 23, 1992, 106 Stat. 2352; Pub. L. 103-
35, title II, Sec. 201(c)(4), May 31, 1993, 107 Stat. 98; Pub. L. 103-
160, div. A, title VIII, Sec. 827(b), title XI, Sec. 1182(a)(6), Nov. 
30, 1993, 107 Stat. 1712, 1771; Pub. L. 103-355, title I, Sec. 1301(b), 
Oct. 13, 1994, 108 Stat. 3285; Pub. L. 104-106, div. A, title XV, 
Sec. 1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 104-201, div. A, 
title II, Sec. 267(a)-(c)(1)(A), title X, Sec. 1073(e)(1)(B), Sept. 23, 
1996, 110 Stat. 2467, 2468, 2658; Pub. L. 105-85, div. A, title VIII, 
Sec. 832, Nov. 18, 1997, 111 Stat. 1842; Pub. L. 105-261, div. A, title 
VIII, Sec. 817, Oct. 17, 1998, 112 Stat. 2089; Pub. L. 106-65, div. A, 
title X, Sec. 1067(1), Oct. 5, 1999, 113 Stat. 774.)


                               Amendments

    1999--Subsec. (h)(1). Pub. L. 106-65 substituted ``and the Committee 
on Armed Services'' for ``and the Committee on National Security'' in 
introductory provisions.
    1998--Subsec. (i)(2)(A). Pub. L. 105-261 substituted ``cooperative 
agreement for performance of basic, applied, or advanced research 
authorized by section 2358 of this title'' for ``cooperative agreement 
that includes a clause described in subsection (d)''.
    1997--Subsec. (i). Pub. L. 105-85 added subsec. (i).
    1996--Subsec. (b). Pub. L. 104-201, Sec. 1073(e)(1)(B), inserted 
``Defense'' before ``Advanced Research Projects Agency''.
    Subsec. (e). Pub. L. 104-201, Sec. 267(a), inserted ``(1)'' before 
``The Secretary of Defense'', redesignated former pars. (1) and (2) as 
subpars. (A) and (B), respectively, inserted ``and'' after semicolon at 
end of subpar. (A), substituted a period for ``; and'' at end of subpar. 
(B), added par. (2), and struck out par. (3) which read as follows: ``a 
cooperative agreement containing a clause under subsection (d) or a 
transaction authorized under subsection (a) is used for a research 
project only when the use of a standard contract, grant, or cooperative 
agreement for such project is not feasible or appropriate.''
    Subsec. (f). Pub. L. 104-201, Sec. 1073(e)(1)(B), inserted 
``Defense'' before ``Advanced Research Projects Agency''.
    Subsec. (h). Pub. L. 104-201, Sec. 267(b), reenacted heading without 
change and amended text generally. Prior to amendment, text read as 
follows: ``Not later than 60 days after the end of each fiscal year, the 
Secretary of Defense shall submit to the Committee on Armed Services of 
the Senate and the Committee on National Security of the House of 
Representatives a report on all cooperative agreements entered into 
under section 2358 of this title during such fiscal year that contain a 
clause authorized by subsection (d) and on all transactions entered into 
under subsection (a) during such fiscal year. The report shall contain, 
with respect to each such cooperative agreement and transaction, the 
following:
        ``(1) A general description of the cooperative agreement or 
    other transaction (as the case may be), including the technologies 
    for which research is provided for under such agreement or 
    transaction.
        ``(2) The potential military and, if any, commercial utility of 
    such technologies.
        ``(3) The reasons for not using a contract or grant to provide 
    support for such research.
        ``(4) The amount of the payments, if any, that were received by 
    the Federal Government during the fiscal year covered by the report 
    pursuant to a clause included in such cooperative agreement or other 
    transaction pursuant to subsection (d).
        ``(5) The amount of the payments reported under paragraph (4), 
    if any, that were credited to each account established under 
    subsection (f).''
    Pub. L. 104-106 substituted ``Committee on Armed Services of the 
Senate and the Committee on National Security of the House of 
Representatives'' for ``Committees on Armed Services of the Senate and 
House of Representatives''.
    Subsec. (i). Pub. L. 104-201, Sec. 1073(e)(1)(B), which directed 
amendment of subsec. (i) by inserting ``Defense'' before ``Advanced 
Research Projects Agency'', could not be executed because of the 
renumbering of subsec. (i) as section 2371a of this title by Pub. L. 
104-201, Sec. 267(c)(1)(A). See below.
    Pub. L. 104-201, Sec. 267(c)(1)(A), renumbered subsec. (i) of this 
section as section 2371a of this title.
    1994--Pub. L. 103-355 amended section generally. Prior to amendment 
section related to cooperative agreements and other transactions for 
advanced research projects.
    1993--Subsec. (a). Pub. L. 103-160, Sec. 827(b)(1)(C), substituted 
``section 2358 of this title'' for ``subsection (a)'' in par. (1) and 
``subsection (d)'' for ``subsection (e)'' in par. (2).
    Pub. L. 103-160, Sec. 827(b)(1)(A), (B), redesignated subsec. (b) as 
(a) and struck out former subsec. (a), as amended by Pub. L. 103-160, 
Sec. 1182(a)(6), (h), which read as follows: ``The Secretary of Defense, 
in carrying out advanced research projects through the Advanced Research 
Projects Agency, and the Secretary of each military department, in 
carrying out advanced research projects, may enter into cooperative 
agreements and other transactions with any person, any agency or 
instrumentality of the United States, any unit of State or local 
government, any educational institution, and any other entity.''
    Pub. L. 103-160, Sec. 1182(a)(6), substituted ``Advanced Research 
Projects Agency'' for ``Defense Advanced Research Projects Agency''.
    Subsec. (b). Pub. L. 103-160, Sec. 827(b)(1)(B), redesignated 
subsec. (c) as (b). Former subsec. (b) redesignated (a).
    Subsec. (c). Pub. L. 103-160, Sec. 827(b)(1)(B), (2)(A), 
redesignated subsec. (d) as (c) and inserted ``and development'' after 
``research'' in two places in par. (1). Former subsec. (c) redesignated 
(b).
    Subsec. (d). Pub. L. 103-160, Sec. 827(b)(1)(B), (D), (2)(B), 
redesignated subsec. (e), as amended by Pub. L. 103-160, 
Sec. 1182(a)(6), (h), as (d) and substituted ``section 2358 of this 
title'' for ``subsection (a)'' and ``research and development'' for 
``advanced research''. Former subsec. (d) redesignated (c).
    Subsec. (e). Pub. L. 103-160, Sec. 827(b)(1)(B), (E), (2)(B), (C), 
redesignated subsec. (f) as (e), in par. (1) substituted ``research and 
development are'' for ``advanced research is'', in par. (3) substituted 
``research and development'' for ``advanced research'', in par. (4) 
substituted ``subsection (a)'' for ``subsection (b)'', and in par. (5) 
substituted ``subsection (d)'' for ``subsection (e)''. Former subsec. 
(e) redesignated (d).
    Pub. L. 103-160, Sec. 1182(a)(6), substituted ``Advanced Research 
Projects Agency'' for ``Defense Advanced Research Projects Agency''.
    Subsec. (f). Pub. L. 103-160, Sec. 827(b)(1)(B), redesignated 
subsec. (g), as amended by Pub. L. 103-160, Sec. 1182(a)(6), (h), as 
(f). Former subsec. (f) redesignated (e).
    Subsec. (g). Pub. L. 103-160, Sec. 827(b)(1)(B), redesignated 
subsec. (g), as amended by Pub. L. 103-160, Sec. 1182(a)(6), (h), as 
(f).
    Pub. L. 103-160, Sec. 1182(a)(6), substituted ``Advanced Research 
Projects Agency'' for ``Defense Advanced Research Projects Agency''.
    Pub. L. 103-35 substituted ``granted by section 12'' for ``granted 
by section 11'' and ``provisions of sections 11 and 12'' for 
``provisions of sections 10 and 11''.
    1992--Subsec. (g). Pub. L. 102-484 added subsec. (g).
    1991--Subsec. (a). Pub. L. 102-190, Sec. 826(a), inserted ``and the 
Secretary of each military department, in carrying out advanced research 
projects,''.
    Subsec. (b)(1). Pub. L. 102-190, Sec. 826(b)(1)(A), struck out ``by 
the Secretary'' after ``transactions entered into''.
    Subsec. (b)(2). Pub. L. 102-190, Sec. 826(b)(1)(B), substituted ``to 
the appropriate account'' for ``to the account''.
    Subsec. (d). Pub. L. 102-190, Sec. 826(b)(2), substituted ``The 
Secretary of Defense'' for ``The Secretary'' in introductory provisions.
    Subsec. (e). Pub. L. 102-190, Sec. 826(b)(3), substituted ``separate 
accounts for each of the military departments and the Defense Advanced 
Research Projects Agency'' for ``an account'' and ``those accounts'' for 
``such account''.
    Subsec. (f)(5). Pub. L. 102-190, Sec. 826(b)(4), substituted ``each 
account'' for ``the account''.
    Subsec. (g). Pub. L. 102-190, Sec. 826(c), struck out subsec. (g) 
which read as follows: ``The authority of the Secretary to enter into 
cooperative agreements and other transactions under this section expires 
at the close of September 30, 1991.''
    1990--Subsec. (f). Pub. L. 101-510 substituted ``Committees on'' for 
``Committees of'' in introductory provisions.


                    Effective Date of 1994 Amendment

    For effective date and applicability of amendment by Pub. L. 103-
355, see section 10001 of Pub. L. 103-355, set out as a note under 
section 251 of Title 41, Public Contracts.


  Authority of Defense Advanced Research Projects Agency To Carry Out 
                       Certain Prototype Projects

    Section 845 of Pub. L. 103-160, as amended by Pub. L. 104-201, div. 
A, title VIII, Sec. 804, title X, Sec. 1073(e)(1)(D), (2)(A), Sept. 23, 
1996, 110 Stat. 2605, 2658; Pub. L. 105-261, div. A, title II, Sec. 241, 
Oct. 17, 1998, 112 Stat. 1954; Pub. L. 106-65, div. A, title VIII, 
Sec. 801, title X, Sec. 1066(d)(6), Oct. 5, 1999, 113 Stat. 700, 773; 
Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Secs. 803, 804(a)], Oct. 
30, 2000, 114 Stat. 1654, 1654A-205, 1654A-206, provided that:
    ``(a) Authority.--The Director of the Defense Advanced Research 
Projects Agency, the Secretary of a military department, or any other 
official designated by the Secretary of Defense may, under the authority 
of section 2371 of title 10, United States Code, carry out prototype 
projects that are directly relevant to weapons or weapon systems 
proposed to be acquired or developed by the Department of Defense.
    ``(b) Exercise of Authority.--(1) Subsections (e)(1)(B) and (e)(2) 
of such section 2371 shall not apply to projects carried out under 
subsection (a).
    ``(2) To the maximum extent practicable, competitive procedures 
shall be used when entering into agreements to carry out projects under 
subsection (a).
    ``(c) Comptroller General Review.--(1) Each agreement entered into 
by an official referred to in subsection (a) to carry out a project 
under that subsection that provides for payments in a total amount in 
excess of $5,000,000 shall include a clause that provides for the 
Comptroller General, in the discretion of the Comptroller General, to 
examine the records of any party to the agreement or any entity that 
participates in the performance of the agreement.
    ``(2) The requirement in paragraph (1) shall not apply with respect 
to a party or entity, or a subordinate element of a party or entity, 
that has not entered into any other agreement that provides for audit 
access by a Government entity in the year prior to the date of the 
agreement.
    ``(3)(A) The right provided to the Comptroller General in a clause 
of an agreement under paragraph (1) is limited as provided in 
subparagraph (B) in the case of a party to the agreement, an entity that 
participates in the performance of the agreement, or a subordinate 
element of that party or entity if the only agreements or other 
transactions that the party, entity, or subordinate element entered into 
with Government entities in the year prior to the date of that agreement 
are cooperative agreements or transactions that were entered into under 
this section or section 2371 of title 10, United States Code.
    ``(B) The only records of a party, other entity, or subordinate 
element referred to in subparagraph (A) that the Comptroller General may 
examine in the exercise of the right referred to in that subparagraph 
are records of the same type as the records that the Government has had 
the right to examine under the audit access clauses of the previous 
agreements or transactions referred to in such subparagraph that were 
entered into by that particular party, entity, or subordinate element.
    ``(4) The head of the contracting activity that is carrying out the 
agreement may waive the applicability of the requirement in paragraph 
(1) to the agreement if the head of the contracting activity determines 
that it would not be in the public interest to apply the requirement to 
the agreement. The waiver shall be effective with respect to the 
agreement only if the head of the contracting activity transmits a 
notification of the waiver to Congress and the Comptroller General 
before entering into the agreement. The notification shall include the 
rationale for the determination.
    ``(5) The Comptroller General may not examine records pursuant to a 
clause included in an agreement under paragraph (1) more than three 
years after the final payment is made by the United States under the 
agreement.
    ``(d) Appropriate Use of Authority.--(1) The Secretary of Defense 
shall ensure that no official of an agency enters into a transaction 
(other than a contract, grant, or cooperative agreement) for a prototype 
project under the authority of this section unless--
        ``(A) there is at least one nontraditional defense contractor 
    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:
            ``(i) At least one third of the total cost of the prototype 
        project is to be paid out of funds provided by parties to the 
        transaction other than the Federal Government.
            ``(ii) The senior procurement executive for the agency (as 
        designated for the purposes of section 16(3) of the Office of 
        Federal Procurement Policy Act (41 U.S.C. 414(3))[)] 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 
        contract.
    ``(2)(A) Except as provided in subparagraph (B), the amounts counted 
for the purposes of this subsection as being provided, or to be 
provided, by a party to a transaction with respect to a prototype 
project that is entered into under this section other than the Federal 
Government do not include costs that were incurred before the date on 
which the transaction becomes effective.
    ``(B) Costs that were incurred for a prototype project by a party 
after the beginning of negotiations resulting in a transaction (other 
than a contract, grant, or cooperative agreement) with respect to the 
project before the date on which the transaction becomes effective may 
be counted for purposes of this subsection as being provided, or to be 
provided, by the party to the transaction if and to the extent that the 
official responsible for entering into the transaction determines in 
writing that--
        ``(i) the party incurred the costs in anticipation of entering 
    into the transaction; and
        ``(ii) it was appropriate for the party to incur the costs 
    before the transaction became effective in order to ensure the 
    successful implementation of the transaction.
    ``(e) Nontraditional Defense Contractor Defined.--In this section, 
the term `nontraditional defense contractor' means an entity that has 
not, for a period of at least one year prior to the date that a 
transaction (other than a contract, grant, or cooperative agreement) for 
a prototype project under the authority of this section is entered into, 
entered into or performed with respect to--
        ``(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.
    ``(f) Period of Authority.--The authority to carry out projects 
under subsection (a) shall terminate at the end of September 30, 2004.''

                  Section Referred to in Other Sections

    This section is referred to in sections 2358, 2511, 2519 of this 
title; title 49 section 5506.
