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(b) Programs in which commercial or non-developmental items can satisfy the military requirement are preferred as candidate programs. A nominated program will address which standard commercial, industrial practices will be used in the pilot program and how those practices Will be applied.

(c) Nomination of Candidate programs must be accompanied by a list of waivers being requested to Statutes, FAR, DFARS, DoD Directives 4 and Instructions, 5 and where applicable, DoD Component regulations. Waivers being requested must be a CCOmpanied by rationale and justification for the waiver. The justification must include:

4 See footnote 3 to $2.4(b). 5 See footnote 3 to $2.4(b).

(1) The provision of law proposed to be waived Or limited. (2) The effects of the provision of law on the acquisition, including Specific examples. (3) The actions taken to ensure that the waiver or limitation will not reduce the efficiency, integrity, and effectiveness Of the acquisition process used for the defense acquisition program; and (4) A discussion of the efficiencies or Savings, if any, that will result from the waiver or limitation. (d) No nominated program shall be accepted until the Under Secretary of Defense has determined that the Candidate program is properly planned.

PARTS 3–20 [RESERVED]

REGULATIONS

PART 21–DoD GRANTS AND AGREEMENTS-GENERAL MATTERS

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(a) DOD Directive 3210.61 established the Defense Grant and Agreement Regulatory System (DGARS). The directive authorized publication of policies and procedures Comprising the DGARS in the DOD Grant and Agreement Regulations (DODGARS), in DoD instructions, and in Other DOD publications, aS appropriate. Thus, the DODGARS are One element. Of the DGAR.S. (b) The purposes of the DODGARS, in COnjunction with Other elements Of the DGARS, are to provide uniform poliCies and procedures for grantS and CoOperative agreements awarded by DOD Component S, in Order to meet DOD needs for: (1) Efficient program execution, effective program Oversight, and proper Stewardship Of Federal funds. (2) Compliance with relevant Statutes; Executive Orders; and applicable guidance, Such as Office of Management, and Budget (OMB) circulars. (3) Collection from DoD Components, retention, and dissemination of management and fiscal data related to grantS and agreement.S. (c) The Director of Defense Research and Engineering, or his Or her designee: (1) Develops and implements DGARS policies and procedures. (2) ISSueS and maintains the DOD Grant, and Agreement, Regulations and Other DoD publications that comprise the DGARS.

$21.110 Applicability and relationship to acquisition regulations.

(a) Applicability to grants and cooperative agreements. The DoD Grant and Agreement Regulations (DODGARS) apply to all DOD grants and cooperative agreement.S.

purpose,

1 Copies may be obtained, at Cost, from the

National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. Authorized users may also obtain Copies from the Defense Technical Information Center, 8725 John J. Kingman Rd., Suite 0944, Fort Belvoir, VA 22060–6218.

(b) Applicability to other momprocurememt instruments. (1) In accordance with DoD Directive 3210.6, the DODGARS may include rules that apply to other nonprocurement instruments, when specifically required in Order to implement a Statute, Executive Order, or Government.Wide rule that applies to other nonprocurement instruments, as well as to grantS and Cooperative agreement.S. For example, the rule on nonprocurement debarment and Suspension in 32 CFR part 25, subparts A through E, applies to all nonprocurement transactions, including grants, COOperative agreement S, Contracts of aSSistance, loans and loan guarantees (see definition of “primary covered transaction” at 32 CFR 25.110(a)(1)(i)). (2) The following is a list of DODGARS rules that apply not only to grantS and COOperative agreement S, but also to Other types Of nonprocurement, instrument.S: (i) Requirements for reporting to the Defense ASSistance Award Data SyStem, in Subpart C of this part. (ii) The rule On nonprocurement debarment and Suspension in 32 CFR part 25, Subparts A through E. (iii) Drug-free workplace requirements in 32 CFR part 25, subpart F. (iv) Restrictions On lobbying in 32 CFR part 28. (v) Administrative requirements for grants, COOperative agreements, and Other financial assistance to: (A) Universities and other nonprofit Organizations, in 32 CFR part 32. (B) State and local government.S, in 32 CFR part 33. (3) Grants Officers should be aware that each rule that applies to Other types of nonprocurement instruments (i.e., Other than grantS and COOperative agreements) States its applicability to Such instrument.S. However, grantS OffiCerS must exercise Caution when determining the applicability Of SOme GOVernment.Wide rules that are included in the DODGARS, because a term may be defined differently in a Governmentwide rule than it is defined elsewhere in the DoDGARS. For example, the Government.Wide implementation. Of the Drug-Free Workplace Act of 1988 (32 CFR part 25, subpart, F) states that it applies to grants, but defines ‘‘grants” to include COOperative agree

ments and other forms of financial aSSistance.

(c) Relationship to acquisition regulations. The Federal Acquisition Regulation (FAR) (48 CFR parts 1–53), the Defense Federal Acquisition Regulation Supplement (DFARS) (48 CFR parts 201–270), and DoD Component Supplements to the FAR and DFARS apply to DoD Components’ procurement contracts used to acquire goods and Services for the direct benefit Or use Of the Federal Government. Policies and proCedures in the FAR, and DFARS do not, apply to grantS, COOperative agreement S, Or Other nonprocurement transactions unless the DODGARS Specify that they apply.

$21.115 Compliance and implementation.

The Head of each DOD Component that awards Or administers grant S and COOperative agreements, Or his Or her designee:

(a) IS responsible for ensuring COmpliance with the DODGARS within that DoD Component.

(b) May authorize the issuance of regulations, procedures, Or instructions that are necessary to implement DGARS policies and procedures within the DOD Component, Or to Supplement the DODGARS to Satisfy needs that are Specific to the DOD Component, as long aS Such regulations, procedures, Or inStructions do not impose additional COSt.S Or administrative burdens On reCipients Or potential recipient.S. Heads of DoD Components or their designees Shall establish policies and procedures in area.S where uniform policies and procedures throughout the DoD Component are required, Such as for:

(1) Requesting Cla.SS deviations from the DODGARS (see $21.125) or exemptions from the provisions of 31 U.S.C. 6301 et Seq., that govern the appropriate uSe Of COntractS, grantS, and COOperative agreements (see 32 CFR 22.220).

(2) Designating One Or more Grant Appeal Authorities to resolve Claims, disputes, and appeals (See 32 CFR 22.815).

(3) Reporting data. On a SSistance awards and programs, as required by 31 U.S.C. Chapter 61 (see Subpart C of this part).

(4) Prescribing requirements for use and disposition of real property a Cquired under awards, if the DoD Component makes any awards to institutions of higher education Or to Other nonprofit organizations under which real property is acquired in Whole Or in part with Federal funds (see 32 CFR 32.32).

$21.120 Publication and maintenance.

(a) The DODGARS are published as Chapter I, Subchapter B, title 32 of the Code of Federal Regulations (CFR) and in a separate loose-leaf edition. The loose-leaf edition is divided into partS, subparts, and Sections, to parallel the CFR, publication. CrOSS-references within the DODGARS are Stated as CFR Citations (e.g., a reference to $21.115 in part 21 would be to 32 CFR 21.115). (b) Updates to the DODGARS are published in the FEDERAL REGISTER. When finalized, updates also are published as Defense Grant, and Agreement Circulars, with revised pages for the Separate, loose-leaf edition. (c) Revisions to the DODGARS are recommended to the Director Of Defense Research and Engineering (DDR&E) by a Standing Working group. The DDR&E, Director of Defense Procurement, and each Military Department shall be represented On the WOrking group. Other DoD Components that use grantS Or COOperative agreement.S may also nominate representatives. The working group meet S When neCeSSary.

$21.125 Deviations.

(a) The Head of the DOD Component Or his Or her designee may authorize individual deviationS from the DODGARS, which are deviations that affect Only One grant or COOperative agreement, if Such deviations are not prohibited by statute, executive Order Or regulation.

(b) Cla.SS deviations that affect more than One grant Or COOperative agreement must be approved in advance by the Director, Defense Research and Engineering (DDR&E) or his or her des– ignee. Note that OMB concurrence also is required for deviations from two parts of the DODGARS, 32 CFR parts 32 and 33, in accordance with 32 CFR 32.4 and 33.6, respectively.

(C) Copies of justifications and agenCy approvals for individual deviations and Written request.S for Class deviations shall be Submitted to: Deputy Director, Defense Research and Engineering, ATTN: Research, 3080 Defense Pentagon, Washington DC 20301–3080.

(d) Copies of requests and approvals for individual and Cla.SS deviations Shall be maintained in award files.

$21.130 Definitions.

Acquisition. The acquiring (by purChase, lease, Or barter) of property or Services for the direct benefit Or use of the United States Government (See more detailed definition at 48 CFR 2.101). In accordance with 31 U.S.C. 6303, procurement Contracts are the appropriate legal instrument.S for acquir– ing Such property Or Services. Assistance. 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 and COOperative agreement.S are exam— ples of legal instrument.S used to provide a SSistance. Contract. See the definition for proCurement Contract in this Section. Comtracting activity. An activity to which the Head of a DOD COmponent, has delegated broad authority regarding acquisition functions, pursuant to 48 CFR 1.601. Contracting officer. A person with the authority to enter into, administer, and/or terminate COntract S and make related determinations and findingS. A more detailed definition Of the term appears at 48 CFR 2.101. Cooperative agreement. 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 “grant”), 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, agreement.S’’ as defined in 15 U.S.C. 3710a. Deviation. The iSSuance Or uSe Of a policy or procedure that is inconsistent With the DODGAR.S.

DoD Components. The Office of the Secretary of Defense, the Military Departments, the Defense Agencies, and DOD Field Activities. Grant. A legal instrument which, conSistent with 31 U.S.C. 6304, is used to enter into a relationship: (1) 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 OI UIS62. (2) In which substantial involvement is not expected between the Department. Of Defense and the recipient, when carrying Out the activity contemplated by the grant. Grants officer. An Official with the authority to enter into, administer, and/ Or terminate grantS Or COOperative agreement.S. Nonprocurement instrument. A legal instrument. Other than a procurement, COntract. Examples include instrument.S Of financial assistance, Such as grantS Or COOperative agreements, and those of technical assistance, which provide Services in lieu of money. Procurement contract. 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 for Contract at 48 CFR 2.101. Recipient. An Organization Or Other entity receiving a grant Or COOperative agreement from a DoD Component.

Subport B–Authorities dnd Responsibilities

$21.200 Purpose.

This Subpart describes the Sources and flow of authority to use grants and COOperative agreements, and assigns the broad responsibilities associated with DOD COmpOnents’ use Of Such inStrument.S.

$21.205 DoD Components’ authorities.

(a) In accordance with 31 U.S.C. 6301 et seq., DoD Components shall use grantS and COOperative agreement.S as legal instrument.S reflecting a SSistance relationships between the United States Government and recipients. (b) Unlike the use of a procurement contract (for which Federal agencies have inherent, Constitutional authority), use of a grant Or COOperative agreement to Carry Out a program requires authorizing legislation, the intent. Of which Supports the use of an asSistance instrument (e.g., the intent of the legislation authorizing a program Supports a judgment that the principal purpose of the program is assistance, rather than acquisition). DoD CompomentS may award grants and COOperative agreement.S under a number Of Statutory authorities that fall into three Categories: (1) Authorities that statutes provide to the Secretary of Defense. These authorities generally are delegated by the Secretary Of Defense to Heads of DOD Components, usually through DOD directives, instructions, or policy memoranda that are not part of the Defense Grant and Agreement Regulatory System. Examples Of Statutory authorities in this Category are: (i) Authority under 10 U.S.C. 2391 to make grantS or conclude Cooperative agreement.S to a SSist, State and local government.S in planning and Carrying Out COmmunity adjustment.S and economic diversification required by Changes in military installations or in DOD COntracts Or Spending that may have a direct and Significant adverse COnSequence On the affected community. (ii) Authority under 10 U.S.C. 2413 to enter into COOperative agreements with entities that furnish procurement technical assistance to businesses. (2) Authorities that statutes may provide directly to Heads of DoD Compoments. When a statute authorizes the head Of a DOD COmponent to use a grant. Or COOperative agreement Or to Carry Out a program with a principal purpose of a SSistance, use of that authority requires no delegation by the Secretary of Defense. For example, 10 |U.S.C. 2358 authorizes the Secretaries

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