Definitions for DoD Grant and Agreement Regulations, 51229-51238 [2020-16409]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Unknown Section]
[Pages 51229-51238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16409]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

2 CFR Part 1108

[DOD-2016-OS-0051]
RIN 0790-AJ46


Definitions for DoD Grant and Agreement Regulations

AGENCY: Office of the Secretary, Department of Defense (DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule is the fifth of a sequence of six final rules 
published in the Federal Register to update the DoD Grant and Agreement 
Regulations (DoDGARs). Additionally, this rule provides definitions of 
terms that are common to the DoDGARs and establishes a central 
regulatory location for each term.

DATES: This rule is effective October 19, 2020.

FOR FURTHER INFORMATION CONTACT: Barbara Orlando, Basic Research 
Office, 571-372-6413.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Final Rule

    This final rule incorporates the Office of Management and Budget's 
(OMB) guidance to Federal agencies on administrative requirements, cost 
principles, and audit requirements that apply to Federal grants, 
cooperative agreements, and other assistance instruments (2 CFR part 
200). Additionally, this rule provides definitions of terms that are 
common to the DoDGARs and establishes a central regulatory location for 
each term.

B. Legal Authorities for the Regulatory Action

    There are two statutory authorities for this rule:
     10 U.S.C. 113, which establishes the Secretary of Defense 
as the head of the Department of Defense (DoD); and
     5 U.S.C. 301, which authorizes the head of an Executive 
department to prescribe regulations for the governance of that 
department and the performance of its business.

II. Regulatory History

    In December 2014 (79 FR 76047), DoD established an interim 
implementation of the final guidance, ``Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards,'' published by the Office of Management and Budget (OMB) on 
December 26, 2013, in 2 CFR part 200 (Uniform Guidance--available at 78 
FR 78589). DoD then published a Notice of Proposed Rulemaking (November 
7, 2016 (81 FR 78360)) that proposed changes to 2 CFR part 1108, 
Definitions, that would establish definitions of terms that are common 
to most portions of those regulations, as well as create a central 
location for the definitions.

III. Comments and Responses

    DoD did not receive public comments in response to the Notice of 
Proposed Rulemaking that proposed 2 CFR part 1108, Definitions, which 
was published in the Federal Register on November 7, 2016. However, in 
reviewing the five other rules proposed on that date, which are being 
published as final rules in today's Federal Register, and in developing 
the yet-to-be-published portions of the updated DoDGARs, DoD identified 
the need for changes to make corrections and enhance the clarity and 
currency of this part and its consistency with other parts of the 
DoDGARs. Therefore, we:
     Added ``or agreements'' to modify ``officer'' in 2 CFR 
1108.80, Claim.
     Added ``Indian tribe'' in 2 CFR 1108.85(a), Cognizant 
agency for indirect costs.
     Added a definition of ``cost-type award'' at 2 CFR 
1108.128 to be parallel to other terms defined in 2 CFR part 1108.
     Added a definition of ``prior approval'' at 2 CFR 1108.298 
to ensure consistent understanding of use of the term.
     Added to the definition of ``State'' in 2 CFR 1108.350 the 
qualifier ``for purposes of the administrative requirements of these 
regulations . . .'' for clarity. Although this part already recognizes 
that a term can be defined differently in a national policy 
requirement, there also may be instances where an authorizing statute 
defines the term ``State'' differently when establishing eligibility 
for financial assistance.
     Modified the name of appendix A by substituting the term 
``types of awards'' with ``types of legal instruments'' (i.e., 
Background on assistance, acquisition, and terms for types of legal 
instruments) for consistency with the usage in the Federal Grant and 
Cooperative Agreement Act. Throughout this part, where appropriate, we 
used the word(s) ``instruments'' or ``legal instruments, in lieu of 
``awards.''
     Eliminated redundancy, e.g., by removing ``prime'' as a 
modifier of the defined term ``award.''
     Updated language to ensure use of current terminology, 
e.g., substituted ``notice of funding opportunity'' for ``program 
announcement'' in 2 CFR 1108.405(a), Voluntary (committed or 
uncommitted) cost sharing.
    In addition, we made some minor edits, e.g., changing plural usage 
to singular where the context warranted it; using defined terms, rather 
than descriptive language; and substituting language that is consistent 
with other parts of the DoDGARs.

IV. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive Orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on these statutes or E.O.s.

A. Regulatory Planning and Review

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits

[[Page 51230]]

(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been designated as a ``not significant'' regulatory 
action, and not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has not been reviewed by 
the Office of Management and Budget (OMB) under the requirements of 
these Executive Orders.
    Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs) directs agencies to reduce regulation and control 
regulatory costs and provides that ``for every one new regulation 
issued, at least two prior regulations be identified for elimination, 
and that the cost of planned regulations be prudently managed and 
controlled through a budgeting process.'' This rule is not subject to 
the requirements of this Executive Order because it is not significant 
under Executive Order 12866.
Costs
    DoD has found that this rule will not impose costs on the public 
because this rule is establishing a central regulatory location for 
definitions in the DoDGARs without imposing additional requirements or 
burdens on the public.
Benefits
    DoD determined that creating a central location for definitions 
used throughout the DoDGARs will help maximize long term benefits in 
relation to costs and burdens for recipients of DoD awards. The public 
will benefit from all terms being located in one location.
Alternatives
    1. No action--If no action was taken, DoD would not be compliant 
with OMB requirements to move all financial assistance regulations to 2 
CFR.
    2. Next Best alternative--The next best alternative would be to add 
additional definitions, beyond those found in the DODGARs, which give 
background explanations for the terms that are in the DODGARs. While 
the new definitions may add additional context to the wording in the 
DODGARs, it would be more beneficial to expand the definition than to 
direct the public to additional definitions.

B. Congressional Review Act (5 U.S.C. 801, et seq.)

    Under the Congressional Review Act, a major rule may not take 
effect until at least 60 days after submission to Congress of a report 
regarding the rule. A major rule is one that would have an annual 
effect on the economy of $100 million or more or have certain other 
impacts. This rule is not a major rule under the Congressional Review 
Act.

C. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. This rule will not impose any impacts on any entities. This 
means that there will be no economic impacts on any entities. 
Therefore, the Department of Defense under the Regulatory Flexibility 
Act \1\ certifies that this rule will not have a significant economic 
impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \1\ 5 U.S.C. 601, et seq. (1980).
---------------------------------------------------------------------------

D. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the person in the FOR FURTHER 
INFORMATION CONTACT section of this rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any 1 year. Although this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Collection of Information

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520) applies to 
collections of information using identical questions posed to, or 
reporting or recordkeeping requirements imposed on, ten or more members 
of the public. This rule does not call for a new collection of 
information under the PRA.

G. Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This proposed rule does not have federalism implications 
that warrant the preparation of a federalism assessment in accordance 
with Executive Order 13132.

List of Subjects in 2 CFR Part 1108

    Accounting, Business and Industry, Cooperative agreements, Grants 
administration, Hospitals, Indians, Nonprofit organizations, Reporting 
and recordkeeping requirements, Small business, State and local 
governments.


0
Accordingly, under the authority of 5 U.S.C. 301 and 10 U.S.C. 113, 2 
CFR chapter XI, subchapter A, is amended by adding part 1108 to read as 
follows:

PART 1108--DEFINITIONS OF TERMS USED IN SUBCHAPTERS A THROUGH F OF 
THIS CHAPTER

Subpart A--General
Sec.
1108.1 Purpose of this part.
1108.2 Precedence of definitions of terms in national policy 
requirements.
1108.3 Definitions of terms used in the Governmentwide cost 
principles or single audit requirements.
1108.4 Definitions of terms that vary depending on context.
Subpart B--Definitions
1108.10 Acquire.
1108.15 Acquisition.
1108.20 Acquisition cost.
1108.25 Administrative offset.
1108.30 Advance payment.
1108.35 Advanced research.
1108.40 Agreements officer.
1108.45 Applied research.
1108.50 Approved budget.

[[Page 51231]]

1108.55 Assistance.
1108.60 Award.
1108.65 Award administration office.
1108.70 Basic research.
1108.75 Capital asset.
1108.80 Claim.
1108.85 Cognizant agency for indirect costs.
1108.90 Contract.
1108.95 Contracting activity.
1108.100 Contracting officer.
1108.105 Contractor.
1108.110 Cooperative agreement.
1108.115 Co-principal investigator.
1108.120 Cost allocation plan.
1108.125 Cost sharing or matching.
1108.128 Cost-type award.
1108.130 Cost-type contract.
1108.135 Cost-type subaward.
1108.140 Debarment.
1108.145 Debt.
1108.150 Delinquent debt.
1108.155 Development.
1108.160 Direct costs.
1108.165 DoD Components.
1108.170 Equipment.
1108.175 Exempt property.
1108.180 Expenditures.
1108.185 Federal interest.
1108.190 Federal share.
1108.195 Fixed-amount award.
1108.200 Fixed-amount subaward.
1108.205 Foreign organization.
1108.210 Foreign public entity.
1108.215 Grant.
1108.220 Grants officer.
1108.225 Indian tribe.
1108.230 Indirect costs (also known as ``Facilities and 
Administrative,'' or F&A, costs).
1108.235 Institution of higher education.
1108.240 Intangible property.
1108.245 Local government.
1108.250 Management decision.
1108.255 Nonprocurement instrument.
1108.260 Nonprofit organization.
1108.265 Obligation.
1108.270 Office of Management and Budget.
1108.275 Outlays.
1108.280 Participant support costs.
1108.285 Period of performance.
1108.290 Personal property.
1108.295 Principal investigator.
1108.298 Prior approval
1108.300 Procurement contract.
1108.305 Procurement transaction.
1108.310 Program income.
1108.315 Project costs.
1108.320 Property.
1108.325 Real property.
1108.330 Recipient.
1108.335 Research.
1108.340 Simplified acquisition threshold.
1108.345 Small award.
1108.350 State.
1108.355 Subaward.
1108.360 Subrecipient.
1108.365 Supplies.
1108.370 Suspension.
1108.375 Technology investment agreement.
1108.380 Termination.
1108.385 Third-party in-kind contribution.
1108.390 Total value.
1108.395 Unique entity identifier.
1108.400 Unobligated balance.
1108.405 Voluntary (committed or uncommitted) cost sharing.
1108.410 Working capital advance.
Appendix A to Part 1108--Background on Assistance, Acquisition, and 
Terms for Types of Legal Instruments

    Authority:  5 U.S.C. 301 and 10 U.S.C. 113.

Subpart A--General


Sec.  1108.1  Purpose of this part.

    (a) This part provides:
    (1) Definitions of terms used in subchapters A through F of this 
chapter; and
    (2) Background information as context for understanding terms 
related to assistance and acquisition purposes, legal instruments that 
DoD Components make at the prime tier, and lower-tier transactions into 
which recipients and subrecipients enter when carrying out programs at 
lower tiers under DoD awards.
    (b) This part is, for DoD, the regulatory implementation of OMB 
guidance in subpart A of 2 CFR part 200.


Sec.  1108.2  Precedence of definitions of terms in national policy 
requirements.

    (a) General. Some portions of the DoD Grant and Agreement 
Regulations (DoDGARs) may use a term in relation to compliance with a 
national policy requirement in a statute, Executive order, or other 
source that defines the term differently than it is defined in subpart 
B of this part. For purposes of that particular national policy 
requirement, the definition of a term provided by the source of the 
requirement and any regulation specifically implementing it takes 
precedence over the definition in subpart B of this part. Using the 
definition of a term that takes precedence for each national policy 
requirement is therefore important when determining the applicability 
and effect of that requirement.
    (b) Examples. (1) Current portions of the DoDGARs that specifically 
implement national policy requirements, as described in paragraph (a) 
of this section, are:
    (i) A Governmentwide regulation currently codified by DoD at 32 CFR 
part 26, which implements the Drug-Free Workplace Act of 1988 as it 
applies to grants (41 U.S.C. chapter 81, as amended);
    (ii) A Government regulation currently codified by DoD at 32 CFR 
part 28, which implements restrictions on lobbying in 31 U.S.C. 1352;
    (iii) A DoD regulation at part 1125 of this chapter, which 
implements Governmentwide guidance on nonprocurement debarment and 
suspension (2 CFR part 180) that has bases both in statute (section 
2455 of Public Law 103-355, 108 Stat. 3327) and in Executive orders 
12549 and 12689; and
    (iv) Part 1122 of this chapter, which provides standard wording of 
terms and conditions related to a number of national policy 
requirements.
    (2) To illustrate that a term may be defined differently in 
conjunction with specific national policy requirements than it is in 
this part, the term ``State'' is defined differently in the drug-free 
workplace requirements at 32 CFR part 26, the lobbying restrictions at 
32 CFR part 28, and Subpart B of this part.


Sec.  1108.3  Definitions of terms used in the Governmentwide cost 
principles or single audit requirements.

    (a) Some DoDGARs provisions state that DoD Components or recipients 
must comply with single audit or cost principles requirements in a 
Governmentwide issuance that contains defined terms and include the 
requirements by reference to the issuance without restating them.
    (b) For any term in one of those issuances, this part includes the 
definition of the term only if the DoDGARs also use that term directly.
    (c) If the DoDGARs only use the term indirectly, i.e., through the 
DoDGARs' reference to the issuance, then this part will not include a 
definition and a user of the DoDGARs should consult definitions in the 
pertinent Governmentwide source, as follows:
    (1) The Single Audit Act requirements for audits of recipients and 
subrecipients that are in subpart F of OMB guidance in 2 CFR part 200;
    (2) The Governmentwide cost principles for institutions of higher 
education, nonprofit organizations, States, local governments, and 
Indian tribes that are contained in subpart E of OMB guidance in 2 CFR 
part 200; and
    (3) The cost principles for for-profit entities at Subpart 31.2 of 
the Federal Acquisition Regulation (FAR) at 48 CFR part 31, as 
supplemented by provisions of the Defense Federal Acquisition 
Regulation Supplement at subpart 231.2 of 48 CFR part 231.


Sec.  1108.4  Definitions of terms that vary depending on context.

    DoDGARs definitions of some terms related to types of legal 
instruments (e.g., ``contract'') and purposes for which they are used 
(e.g., ``procurement'' or ``acquisition'') may vary, depending on the 
context. Appendix A to this part provides additional information about 
those terms and their definitions.

[[Page 51232]]

Subpart B--Definitions


Sec.  1108.10  Acquire.

    Acquire means to:
    (a) When the term is used in connection with a DoD Component action 
at the prime tier, obtain property or services by purchase, lease, or 
barter for the direct benefit or use of the United States Government.
    (b) When the term is used in connection with a recipient action or 
a subrecipient action at a tier under a DoD Component's award:
    (1) Purchase services;
    (2) Obtain property under the award by:
    (i) Purchase;
    (ii) Construction;
    (iii) Fabrication;
    (iv) Development;
    (v) The recipient's or subrecipient's donation of the property to 
the project or program under the award to meet a cost-sharing or 
matching requirement (i.e., including within the entity's share of the 
award's project costs the value of the remaining life of the property 
or its fair market value, rather than charging depreciation); or
    (vi) Otherwise.


Sec.  1108.15  Acquisition.

    Acquisition means the process of acquiring as described in:
    (a) Paragraph (a) of Sec.  1108.10 when used in connection with DoD 
Component actions at the prime tier.
    (b) Paragraph (b) of Sec.  1108.10 when used in connection with 
recipient or subrecipient actions at a lower tier under a DoD 
Component's award.


Sec.  1108.20   Acquisition cost.

    Acquisition cost means the cost of an asset to a recipient or 
subrecipient, including the cost to ready the asset for its intended 
use.
    (a) For example, when used in conjunction with:
    (1) The purchase of equipment, the term means the net invoice price 
of the equipment, including the cost of any modifications, attachments, 
accessories, or auxiliary apparatus necessary to make it usable for the 
purpose for which it is acquired.
    (2) Equipment that a recipient or subrecipient constructs or 
fabricates--or software that it develops--under an award, the term 
includes, when capitalized in accordance with generally accepted 
accounting principles (GAAP):
    (i) The construction and fabrication costs of that equipment; and
    (ii) The development costs of that software.
    (b) Ancillary charges, such as taxes, duty, protective in-transit 
insurance, freight, and installation may be included in, or excluded 
from, the acquisition cost in accordance with the recipient's or 
subrecipient's regular accounting practices.


Sec.  1108.25  Administrative offset.

    Administrative offset means an action whereby money payable by the 
United States Government to, or held by the Government for, a recipient 
is withheld to satisfy a delinquent debt.


Sec.  1108.30  Advance payment.

    Advance payment means a payment that DoD or a recipient or 
subrecipient makes by any appropriate payment mechanism, including a 
predetermined payment schedule, before the recipient or subrecipient 
disburses the funds for project or program purposes.


Sec.  1108.35  Advanced research.

    Advanced research means advanced technology development that 
creates new technology or demonstrates the viability of applying 
existing technology to new products and processes in a general way. 
Advanced research is most closely analogous to precompetitive 
technology development in the commercial sector (i.e., early phases of 
research and development on which commercial competitors are willing to 
collaborate, because the work is not so coupled to specific products 
and processes that the results of the work must be proprietary). It 
does not include development of military systems and hardware where 
specific requirements have been defined. It is typically funded in 
Advanced Technology Development (Budget Activity 3) programs within 
DoD's Research, Development, Test and Evaluation (RDT&E) 
appropriations.


Sec.  1108.40  Agreements officer.

    Agreements officer means a DoD official with the authority to enter 
into, administer, and/or terminate technology investment agreements.


Sec.  1108.45  Applied research.

    Applied research means efforts that attempt to determine and 
exploit the potential of scientific discoveries or improvements in 
technology, such as new materials, devices, methods and processes. It 
typically is funded in Applied Research (Budget Activity 2) programs 
within DoD's Research, Development, Test and Evaluation (RDT&E) 
appropriations. Applied research often follows basic research but may 
not be fully distinguishable from the related basic research. The term 
does not include efforts whose principal aim is the design, 
development, or testing of specific products, systems or processes to 
be considered for sale or acquisition, efforts that are within the 
definition of ``development.''


Sec.  1108.50  Approved budget.

    Approved budget means, in conjunction with a DoD Component award to 
a recipient, the most recent version of the budget the recipient 
submitted, and the DoD Component approved (either at the time of the 
initial award or subsequently), to summarize planned expenditures for 
the project or program under the award. It includes:
    (a) All Federal funding made available to the recipient under the 
award to use for project or program purposes.
    (b) Any cost sharing or matching that the recipient is required to 
provide under the award.
    (c) Any options that have been exercised but not any options that 
have not yet been exercised.


Sec.  1108.55  Assistance.

    Assistance means 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, cooperative 
agreements, and technology investment agreements are examples of legal 
instruments that DoD Components use to provide assistance.


Sec.  1108.60  Award.

    Award means a grant, cooperative agreement, technology investment 
agreement, or other nonprocurement instrument subject to one or more 
parts of the DoDGARs. Within each part of the regulations, the term 
includes only the types of instruments subject to that part.


Sec.  1108.65  Award administration office.

    Award administration office means a DoD Component office that 
performs post-award functions related to the administration of grants, 
cooperative agreements, technology investment agreements, or other 
nonprocurement instruments subject to one or more parts of the DoDGARs.


Sec.  1108.70  Basic research.

    Basic research means efforts directed toward increasing knowledge 
and understanding in science and engineering, rather than the practical 
application of that knowledge and understanding. It typically is funded 
within Basic Research (Budget Activity 1) programs within DoD's 
Research, Development, Test and Evaluation (RDT&E) appropriations. For 
the purposes of the DoDGARs, basic research includes:
    (a) Research-related, science and engineering education and 
training,

[[Page 51233]]

including graduate fellowships and research traineeships; and
    (b) Research instrumentation and other activities designed to 
enhance the infrastructure for science and engineering research.


Sec.  1108.75  Capital asset.

    Capital asset means a tangible or intangible asset used in 
operations having a useful life of more than one year which is 
capitalized in accordance with GAAP. Capital assets include:
    (a) Land, buildings (facilities), equipment, and intellectual 
property (including software) whether acquired by purchase, 
construction, manufacture, lease-purchase, exchange, or through capital 
leases; and
    (b) Additions, improvements, modifications, replacements, 
rearrangements, reinstallations, renovations or alterations to capital 
assets that materially increase their value or useful life (not 
ordinary repairs and maintenance).


Sec.  1108.80  Claim.

    Claim means a written demand or written assertion by one of the 
parties to an award seeking as a matter of right, the payment of money 
in a sum certain, the adjustment or interpretation of an award term or 
condition, or other relief arising under or relating to the award. A 
routine request for payment that is not in dispute when submitted is 
not a claim. The submission may be converted to a claim by written 
notice to the grants or agreements officer if it is disputed either as 
to liability or amount or is not acted upon in a reasonable time.


Sec.  1108.85  Cognizant agency for indirect costs.

    Cognizant agency for indirect costs means the Federal agency 
responsible for reviewing, negotiating, and approving cost allocation 
plans and indirect cost proposals on behalf of all Federal agencies. 
The cognizant agency for indirect costs for a particular entity may be 
different than the cognizant agency for audit. The cognizant agency for 
indirect costs:
    (a) For an institution of higher education, nonprofit organization, 
State, local government, or Indian tribe is assigned as described in 
the appendices to 2 CFR part 200. See 2 CFR 200.19 for specific 
citations to those appendices.
    (b) For a for-profit entity, normally will be the agency with the 
largest dollar amount of pertinent business, as described in the 
Federal Acquisition Regulation at 48 CFR 42.003.


Sec.  1108.90  Contract.

    Contract means a procurement transaction, as that term is defined 
in this subpart. A contract is a transaction into which a recipient or 
subrecipient enters. It is therefore distinct from the term 
``procurement contract,'' which is a transaction that a DoD Component 
awards at the prime tier.


Sec.  1108.95  Contracting activity.

    Contracting activity means an activity to which the Head of a DoD 
Component has delegated broad authority regarding acquisition functions 
pursuant to 48 CFR 1.601.


Sec.  1108.100  Contracting officer.

    Contracting officer means a DoD official with the authority to 
enter into, administer, and/or terminate procurement contracts and make 
related determinations and findings.


Sec.  1108.105  Contractor.

    Contractor means an entity to which a recipient or subrecipient 
awards a procurement transaction (also known as a contract).


Sec.  1108.110  Cooperative agreement.

    Cooperative agreement means 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 of ``grant'' in this subpart), 
except that substantial involvement is expected between DoD and the 
recipient when carrying out the activity contemplated by the 
cooperative agreement. The term does not include ``cooperative research 
and development agreements'' as defined in 15 U.S.C. 3710a.


Sec.  1108.115  Co-principal investigator.

    Co-principal investigator means any one of a group of individuals 
whom an organization that is carrying out a research project with DoD 
support designates as sharing the authority and responsibility for 
leading and directing the research intellectually and logistically, 
other than the one among the group identified as the primary contact 
for scientific, technical, and related budgetary matters (see the 
definition of ``principal investigator'').


Sec.  1108.120  Cost allocation plan.

    Cost allocation plan means either a:
    (a) Central service cost allocation plan, as defined at 2 CFR 200.9 
and described in Appendix V to 2 CFR part 200; or
    (b) Public assistance cost allocation plan as described in Appendix 
VI to 2 CFR part 200.


Sec.  1108.125  Cost sharing or matching.

    Cost sharing or matching means the portion of project costs not 
borne by the Federal Government, unless a Federal statute authorizes 
use of any Federal funds for cost sharing or matching.


Sec.  1108.128  Cost type award.

    Cost-type award means an award that a DoD Component makes that 
provides for the recipient to be paid based on the actual, allowable 
costs it incurs in carrying out the award.


Sec.  1108.130  Cost-type contract.

    Cost-type contract means a procurement transaction awarded by a 
recipient or a subrecipient at any tier under a DoD Component's grant 
or cooperative agreement that provides for the contractor to be paid on 
the basis of the actual, allowable costs it incurs (plus any fee or 
profit for which the contract provides).


Sec.  1108.135  Cost-type subaward.

    Cost-type subaward means a subaward that:
    (a) A recipient or subrecipient makes to another entity at the next 
lower tier; and
    (b) Provides for payments to the entity that receives the cost-type 
subaward based on the actual, allowable costs it incurs in carrying out 
the subaward.


Sec.  1108.140  Debarment.

    Debarment means an action taken by a Federal agency debarring 
official to exclude a person or entity from participating in covered 
Federal transactions, in accordance with debarment and suspension 
policies and procedures for:
    (a) Nonprocurement instruments, which are in OMB guidance at 2 CFR 
part 180, as implemented by the DoD at 2 CFR part 1125; or
    (b) Procurement contracts, which are in the Federal Acquisition 
Regulation at 48 CFR 9.4.


Sec.  1108.145  Debt.

    Debt means any amount of money or any property owed to a Federal 
agency by any person, organization, or entity except another United 
States Federal agency. Debts include any amounts due from insured or 
guaranteed loans, fees, leases, rents, royalties, services, sales of 
real or personal property, or overpayments, penalties, damages, 
interest, fines and forfeitures, and all other claims and similar 
sources. For the purposes of this chapter, amounts due a non-
appropriated fund instrumentality are not debts owed the United States.

[[Page 51234]]

Sec.  1108.150  Delinquent debt.

    Delinquent debt means a debt:
    (a) That the debtor fails to pay by the date specified in the 
initial written notice from the agency owed the debt, normally within 
30 calendar days, unless the debtor makes satisfactory payment 
arrangements with the agency by that date; and
    (b) With respect to which the debtor has elected not to exercise 
any available appeals or has exhausted all agency appeal processes.


Sec.  1108.155  Development.

    Development means, when used in the context of ``research and 
development,'' the systematic use of scientific and technical knowledge 
in the design, development, testing, or evaluation of potential new 
products, processes, or services to meet specific performance 
requirements or objectives. It includes the functions of design 
engineering, prototyping, and engineering testing. It typically is 
funded within programs in Budget Activities 4 through 7 of DoD's 
Research, Development, Test and Evaluation (RDT&E) appropriations.


Sec.  1108.160  Direct costs.

    Direct costs means any costs that are identified specifically with 
a particular final cost objective, such as an award, in accordance with 
the applicable cost principles.


Sec.  1108.165  DoD Components.

    DoD Components means the Office of the Secretary of Defense; the 
Military Departments; the National Guard Bureau (NGB); and all Defense 
Agencies, DoD Field Activities, and other organizational entities 
within the DoD that are authorized to award or administer grants, 
cooperative agreements, and other non-procurement instruments subject 
to the DoDGARs.


Sec.  1108.170  Equipment.

    Equipment means tangible personal property (including information 
technology systems) having a useful life of more than one year and a 
per-unit acquisition cost which equals or exceeds the lesser of:
    (a) $5,000; or
    (b) The recipient's or subrecipient's capitalization threshold for 
financial statement purposes.


Sec.  1108.175  Exempt property.

    (a) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds under a DoD Component's awards, for 
which the DoD Component:
    (1) Has statutory authority to vest title in recipients (or allow 
for vesting in subrecipients) without further obligation to the Federal 
Government or subject to conditions the DoD Component considers 
appropriate; and
    (2) Elects to use that authority to do so.
    (b) An example of exempt property authority is contained in the 
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6306) for 
tangible personal property acquired under an award to conduct basic or 
applied research by a nonprofit institution of higher education or 
nonprofit organization whose primary purpose is conducting scientific 
research.


Sec.  1108.180  Expenditures.

    Expenditures mean charges made by a recipient or subrecipient to a 
project or program under an award.
    (a) The charges may be reported on a cash or accrual basis, as long 
as the methodology is disclosed and is consistently applied.
    (b) For reports prepared on a cash basis, expenditures are the sum 
of:
    (1) Cash disbursements for direct charges for property and 
services;
    (2) The amount of indirect expense charged;
    (3) The value of third-party in-kind contributions applied; and
    (4) The amount of cash advance payments and payments made to 
subrecipients.
    (c) For reports prepared on an accrual basis, expenditures are the 
sum of:
    (1) Cash disbursements for direct charges for property and 
services;
    (2) The amount of indirect expense incurred;
    (3) The value of third-party in-kind contributions applied; and
    (4) The net increase or decrease in the amounts owed by the 
recipient or subrecipient for:
    (i) Goods and other property received;
    (ii) Services performed by employees, contractors, subrecipients, 
and other payees; and
    (iii) Programs for which no current services or performance are 
required, such as annuities, insurance claims, or other benefit 
payments.


Sec.  1108.185  Federal interest.

    Federal interest means, in relation to real property, equipment, or 
supplies acquired or improved under an award or subaward, the dollar 
amount that is the product of the:
    (a) Federal share of total project costs; and
    (b) Current fair market value of the property, improvements, or 
both, to the extent the costs of acquiring or improving the property 
were included as project costs.


Sec.  1108.190  Federal share.

    Federal share means the portion of the project costs under an award 
that is paid by Federal funds.


Sec.  1108.195  Fixed-amount award.

    Fixed-amount award means a DoD Component grant or cooperative 
agreement that provides for the recipient to be paid on the basis of 
performance and results, rather than the actual, allowable costs the 
recipient incurs.


Sec.  1108.200  Fixed-amount subaward.

    Fixed-amount subaward means a subaward:
    (a) That a recipient or subrecipient makes to another entity at the 
next lower tier; and
    (b) Under which the total amount to be paid to the other entity is 
based on performance and results, and not on the actual, allowable 
costs that entity incurs.


Sec.  1108.205  Foreign organization.

    Foreign organization means an entity that is:
    (a) A public or private organization that is located in a country 
other than the United States and its territories and is subject to the 
laws of the country in which it is located, irrespective of the 
citizenship of project staff or place of performance;
    (b) A private nongovernmental organization located in a country 
other than the United States and its territories that solicits and 
receives cash contributions from the general public;
    (c) A charitable organization located in a country other than the 
United States and its territories that is nonprofit and tax exempt 
under the laws of its country of domicile and operation, and is not a 
university, college, accredited degree-granting institution of 
education, private foundation, hospital, organization engaged 
exclusively in research or scientific activities, church, synagogue, 
mosque or other similar entity organized primarily for religious 
purposes; or
    (d) An organization located in a country other than the United 
States and its territories that is not recognized as a foreign public 
entity.


Sec.  1108.210  Foreign public entity.

    Foreign public entity means:
    (a) A foreign government or foreign governmental entity;
    (b) A public international organization, which is an organization 
entitled to enjoy privileges, exemptions, and immunities as an 
international organization under the International Organizations 
Immunities Act (22 U.S.C. 288-288f);

[[Page 51235]]

    (c) An entity owned (in whole or in part) or controlled by a 
foreign government; or
    (d) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.


Sec.  1108.215  Grant.

    Grant means a legal instrument which, consistent with 31 U.S.C. 
6304, is used to enter into a relationship:
    (a) Of which the principal purpose 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 DoD's direct benefit or use.
    (b) In which substantial involvement is not expected between DoD 
and the recipient when carrying out the activity contemplated by the 
award.


Sec.  1108.220  Grants officer.

    Grants officer means a DoD official with the authority to enter 
into, administer, and/or terminate grants or cooperative agreements.


Sec.  1108.225  Indian tribe.

    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (43 U.S.C. Chapter 33), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians (25 U.S.C. 450b(e)). See the annually published Bureau of 
Indian Affairs list of Indian Entities Recognized and Eligible to 
Receive Services.


Sec.  1108.230  Indirect costs (also known as ``Facilities and 
Administrative,'' or F&A, costs).

    Indirect costs means those costs incurred for a common or joint 
purpose benefitting more than one cost objective, and not readily 
assignable to the cost objectives specifically benefitted, without 
effort disproportionate to the results achieved.


Sec.  1108.235  Institution of higher education.

    Institution of higher education has the meaning specified at 20 
U.S.C. 1001.


Sec.  1108.240  Intangible property.

    Intangible property means:
    (a) Property having no physical existence, such as trademarks, 
copyrights, patents and patent applications; and
    (b) Property such as loans, notes and other debt instruments, lease 
agreements, stock and other instruments of property ownership, whether 
the property is considered tangible or intangible.


Sec.  1108.245  Local government.

    Local government means any unit of government within a State, 
including a:
    (a) County;
    (b) Borough;
    (c) Municipality;
    (d) City;
    (e) Town;
    (f) Township;
    (g) Parish;
    (h) Local public authority, including any public housing agency 
under the United States Housing Act of 1937;
    (i) Special district;
    (j) School district;
    (k) Intrastate district;
    (l) Council of governments, whether or not incorporated as a 
nonprofit corporation under State law; and
    (m) Any other agency or instrumentality of a multi-, regional, or 
intra-state or local government.


Sec.  1108.250  Management decision.

    Management decision means a written decision issued to an audited 
entity by a DoD Component, another Federal agency that has audit or 
indirect cost cognizance or oversight responsibilities for the audited 
entity, or a recipient or subrecipient from which the audited entity 
received an award or subaward. The DoD Component, cognizant or 
oversight agency, recipient, or subrecipient issues the management 
decision to specify the corrective actions that are necessary after 
evaluating the audit findings and the audited entity's corrective 
action plan.


Sec.  1108.255  Nonprocurement instrument.

    Nonprocurement instrument means a legal instrument other than a 
procurement contract that a DoD Component may award. Examples include 
an instrument of financial assistance, such as a grant or cooperative 
agreement, or an instrument of technical assistance, which provides 
services in lieu of money.


Sec.  1108.260  Nonprofit organization.

    Nonprofit organization means any corporation, trust, association, 
cooperative, or other organization, not including an institution of 
higher education, that:
    (a) Is operated primarily for scientific, educational, service, 
charitable, or similar purposes in the public interest;
    (b) Is not organized primarily for profit; and
    (c) Uses net proceeds to maintain, improve, or expand the 
operations of the organization.


Sec.  1108.265  Obligation.

    Obligation means:
    (a) When used in conjunction with a DoD Component's award, a 
legally binding agreement that will result in outlays, either 
immediately or in the future. Examples of actions through which a DoD 
Component incurs an obligation include the grants or agreements 
officer's signature of a grant, cooperative agreement, or technology 
investment agreement (or modification of such an award) authorizing the 
recipient to use funds under the award.
    (b) When used in conjunction with a recipient's or subrecipient's 
use of funds under an award or subaward, an order placed for property 
and services, a contract or subaward made, or a similar transaction, 
during a given period that requires payment during the same or a future 
period.


Sec.  1108.270  Office of Management and Budget.

    Office of Management and Budget means the Executive Office of the 
President, United States Office of Management and Budget.


Sec.  1108.275  Outlays.

    Outlays means ``expenditures,'' as defined in this subpart.


Sec.  1108.280  Participant support costs.

    Participant support costs means direct costs for items such as 
stipends or subsistence allowances, travel allowances, and registration 
fees paid to or on behalf of participants or trainees (but not 
employees) in connection with conferences or training projects.


Sec.  1108.285  Period of performance.

    Period of performance means the time during which a recipient or 
subrecipient may incur new obligations to carry out the work authorized 
under an award or subaward, respectively.


Sec.  1108.290  Personal property.

    Personal property means property other than real property. It may 
be tangible, having physical existence, or intangible, such as 
copyrights, patents, and securities.


Sec.  1108.295  Principal investigator.

    Principal investigator means either:
    (a) The single individual whom an organization that is carrying out 
a research project with DoD support designates as having an appropriate 
level of authority and responsibility for leading and directing the 
research intellectually and logistically, which includes the proper 
conduct of the research, the appropriate use of funds, and compliance 
with administrative

[[Page 51236]]

requirements such as the submission of performance reports to DoD; or
    (b) If the organization designates more than one individual as 
sharing that authority and responsibility, the individual within that 
group identified by the organization as the one with whom the DoD 
Component's program manager generally should communicate as the primary 
contact for scientific, technical, and related budgetary matters 
concerning the project (others within the group are ``co-principal 
investigators,'' as defined in this subpart).


Sec.  1108.298  Prior approval.

    Prior approval means written or electronic approval by a DoD grants 
or agreements officer evidencing prior consent. When prior approval is 
required for an activity or expenditure that would result in a direct 
cost to a DoD award, the grants or agreements officer's signature on an 
award that includes the planned activity or expenditure in the scope of 
work or approved budget satisfies the requirement for prior approval. 
Otherwise, a recipient is required to obtain such approval after award.


Sec.  1108.300  Procurement contract.

    Procurement contract means 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. A procurement 
contract is a prime-tier transaction and therefore distinct from a 
recipient's or subrecipient's ``procurement transaction'' or 
``contract'' as defined in this subpart.


Sec.  1108.305  Procurement transaction.

    Procurement transaction means a legal instrument by which a 
recipient or subrecipient purchases property or services it needs to 
carry out the project or program under its award or subaward, 
respectively. A procurement transaction is distinct both from 
``subaward'' and ``procurement contract,'' as those terms are defined 
in this subpart.


Sec.  1108.310  Program income.

    Program income means gross income earned by a recipient or 
subrecipient that is directly generated by a supported activity or 
earned as a result of an award or subaward (during the period of 
performance unless the award or subaward specifies continuing 
requirements concerning disposition of program income after the end of 
that period).
    (a) Program income includes, but is not limited to, income from:
    (1) Fees for services performed;
    (2) The use or rental of real or personal property for which the 
recipient or subrecipient is accountable under the award or subaward 
(whether acquired under the award or subaward, or other Federal awards 
from which accountability for the property was transferred);
    (3) The sale of commodities or items fabricated under the award or 
subaward;
    (4) License fees and royalties on patents and copyrights; and
    (5) Payments of principal and interest on loans made with award or 
subaward funds.
    (b) Program income does not include:
    (1) Interest earned on advances of Federal funds;
    (2) Proceeds from the sale of real property or equipment under the 
award; or
    (3) Unless otherwise specified in Federal statute or regulation, or 
the terms and conditions of the award or subaward:
    (i) Rebates, credits, discounts, and interest earned on any of 
them; or
    (ii) Governmental revenues, taxes, special assessments, levies, 
fines, and similar revenues raised by the recipient or subrecipient.


Sec.  1108.315  Project costs.

    Project costs means the total of:
    (a) Allowable costs incurred under an award by the recipient, 
including costs of any subawards and contracts under the award; and
    (b) Cost-sharing or matching contributions that are required under 
the award, which includes voluntary committed (but not voluntary 
uncommitted) contributions and the value of any third-party in-kind 
contributions.


Sec.  1108.320  Property.

    Property means real property and personal property (equipment, 
supplies, intangible property, and debt instruments), unless stated 
otherwise.


Sec.  1108.325  Real property.

    Real property means land, including land improvements, structures 
and appurtenances thereto, but excluding moveable machinery and 
equipment.


Sec.  1108.330   Recipient.

    Recipient means an entity that receives an award directly from a 
DoD Component. The term does not include subrecipients.


Sec.  1108.335  Research.

    Research means basic, applied, and advanced research.


Sec.  1108.340  Simplified acquisition threshold.

    Simplified acquisition threshold means the dollar amount set by the 
Federal Acquisition Regulation at 48 CFR subpart 2.1, which is adjusted 
periodically for inflation in accordance with 41 U.S.C. 1908.


Sec.  1108.345  Small award.

    Small award means a DoD grant or cooperative agreement or a 
subaward with a total value over the life of the award that does not 
exceed the simplified acquisition threshold.


Sec.  1108.350  State.

    State, for purposes of applying the administrative requirements in 
these regulations, means any State of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, 
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, 
and any agency or instrumentality thereof exclusive of local 
governments.


Sec.  1108.355  Subaward.

    Subaward means a legal instrument by which a recipient or 
subrecipient at any tier transfers--for performance by an entity at the 
next lower tier--a portion of the substantive program for which the DoD 
Component made an award.


Sec.  1108.360  Subrecipient.

    Subrecipient means an entity that receives a subaward.


Sec.  1108.365  Supplies.

    Supplies means all tangible personal property, including computing 
devices, acquired under an award that does not meet the definition of 
equipment in this subpart.


Sec.  1108.370  Suspension.

    Suspension means either:
    (a) When used in the context of a specific award or subaward, the 
temporary withdrawal of authority for that recipient or subrecipient to 
obligate funds under the award or subaward, pending its taking 
corrective action or a decision to terminate the award or subaward.
    (b) When used in the context of an entity, an action by a DoD 
Component's suspending official under 2 CFR part 1125, DoD's regulation 
implementing OMB guidance on nonprocurement debarment and suspension in 
2 CFR part 180, to immediately exclude the entity from participating in 
covered

[[Page 51237]]

Federal Government transactions, pending completion of an investigation 
and any legal or debarment proceedings that ensue.


Sec.  1108.375  Technology investment agreement.

    Technology investment agreement means one of a special class of 
assistance instruments used to increase involvement of commercial firms 
in defense research programs and for other purposes related to 
integration of the commercial and defense sectors of the nation's 
technology and industrial base. Technology investment agreements 
include one kind of cooperative agreement with provisions tailored for 
involving commercial firms, as well as one kind of assistance 
transaction other than a grant or cooperative agreement. Technology 
investment agreements are subject to, and described more fully in, 32 
CFR part 37.


Sec.  1108.380  Termination.

    Termination means the ending of an award or subaward, in whole or 
in part, at any time prior to the planned end of period of performance.


Sec.  1108.385  Third-party in-kind contribution.

    Third-party in-kind contribution means the value of a non-cash 
contribution (i.e., property or services) that:
    (a) A non-Federal third party contributes, without charge, either 
to a recipient or subrecipient at any tier under a DoD Component's 
award; and
    (b) Is identified and included in the approved budget of the DoD 
Component's award, as a contribution being used toward meeting the 
award's cost-sharing or matching requirement (which includes voluntary 
committed, but not voluntary uncommitted, contributions).


Sec.  1108.390  Total value.

    Total value of a DoD grant, cooperative agreement, or TIA means the 
total amount of costs that are currently expected to be charged to the 
award over its life, which includes amounts for:
    (a) The Federal share and any non-Federal cost sharing or matching 
required under the award; and
    (b) Any options, even if not yet exercised, for which the costs 
have been established in the award.


Sec.  1108.395  Unique entity identifier.

    Unique entity identifier means the identifier required for System 
for Award Management registration to uniquely identify entities with 
which the Federal Government does business (currently the Dun and 
Bradstreet Data Universal Numbering System, or DUNS, number).


Sec.  1108.400  Unobligated balance.

    Unobligated balance means the amount of funds under an award or 
subaward that the recipient or subrecipient has not obligated. The 
amount is computed by subtracting the cumulative amount of the 
recipient's or subrecipient's unliquidated obligations and expenditures 
of funds from the cumulative amount of funds that it was authorized to 
obligate under the award or subaward.


Sec.  1108.405  Voluntary (committed or uncommitted) cost sharing.

    (a) Voluntary cost sharing means cost sharing that an entity 
pledges voluntarily in its application (i.e., not due to a stated cost-
sharing requirement in the notice of funding opportunity to which the 
entity's application responds).
    (b) Voluntary committed cost sharing means voluntary cost sharing 
that a DoD Component accepts through inclusion in the approved budget 
for the project or program and as a binding requirement of the terms 
and conditions of the award made to the entity in response to its 
application.
    (c) Voluntary uncommitted cost sharing means voluntary cost sharing 
that does not meet the criteria in paragraph (b) of this section.


Sec.  1108.410  Working capital advance.

    Working capital advance means a payment method under which funds 
are advanced to a recipient or subrecipient to cover its estimated 
disbursement needs for a given initial period, after which the DoD 
component making the award makes payment to the recipient or 
subrecipient by way of reimbursement.

Appendix A to Part 1108--Background on Assistance, Acquisition, and 
Terms for Types of Legal Instruments

I. Purpose of This Appendix

    This appendix provides background intended to clarify some 
terms:
    A. That are used in this chapter to describe either types of 
legal instruments that DoD Components, recipients, and subrecipients 
issue, or the purposes for which those types of instruments are 
used; and
    B. For which this part provides definitions that vary depending 
on the context within which the terms are used.

II. Why Definitions of Some Terms Are Context-Dependent

    A. The DoDGARs contain both:
    1. Direction to DoD Components concerning their award of grants 
and cooperative agreements at the prime tier; and
    2. Terms and conditions that DoD Components include in their 
grants and cooperative agreements to specify the Government's and 
recipients' rights and responsibilities, including post-award 
requirements with which recipients' actions must comply.
    B. In some cases, the same defined term or two closely related 
terms are used in relation to both DoD Component actions at the 
prime tier and recipient or subrecipient actions at lower tiers 
under DoD Components' awards. But a given defined term may have 
meanings that differ at the two tiers. For example, in part because 
the Federal Grant and Cooperative Agreement Act applies to DoD 
Component actions at the prime tier but not to recipient or 
subrecipient actions at lower tiers (see sections III and IV of this 
appendix):
    1. The terms ``acquire'' and ``acquisition'' do not have 
precisely the same meaning in conjunction with actions at the prime 
and lower tiers.
    2. The meaning of the term ``procurement contract'' used to 
describe DoD Component prime-tier actions is not precisely the same 
as the meaning of ``procurement transaction'' or ``contract'' used 
to describe recipient or subrecipient actions at lower tiers.

III. Background: Distinguishing Prime-Tier Relationships and Legal 
Instruments

    A. The Federal Grant and Cooperative Agreement Act (31 U.S.C. 
chapter 63) specifies that the type of legal instrument a DoD 
Component is to use is based on the nature of the relationship 
between the DoD Component and the recipient.
    B. Specifically, except where another statute authorizes DoD to 
do otherwise, 31 U.S.C. chapter 63 specifies use of:
    1. A procurement contract as the legal instrument reflecting a 
relationship between a DoD Component and a recipient when the 
principal purpose of the relationship is to acquire property or 
services for the direct benefit or use of the Federal Government.
    2. A grant or cooperative agreement as the legal instrument 
reflecting a relationship between those two parties when the 
principal purpose of the relationship is to transfer a thing of 
value to the recipient to carry out a public purpose of support or 
stimulation authorized by Federal statute.
    C. The terms ``acquisition'' and ``assistance'' are defined in 
this part to correspond to the principal purposes described in 
paragraphs III.B.1 and 2 of this section, respectively. Using those 
terms, paragraphs III.B.1 and B.2 may be restated to say that grants 
and cooperative agreements are assistance instruments that DoD 
Components use, as distinct from procurement contracts they use for 
acquisition.

IV. Background: Distinguishing Types of Recipients' and Subrecipients' 
Instruments

    A. While the Federal Grant and Cooperative Agreement Act applies 
to Federal agencies, it does not govern types of instruments that 
recipients and subrecipients of any tier use. That statute does not 
require a recipient or subrecipient to:
    1. Consider any instrument it makes at a lower tier under a 
Federal assistance award

[[Page 51238]]

to be a grant or cooperative agreement. Therefore, at its option, a 
recipient or subrecipient may consider all of its lower-tier 
instruments to be ``contracts.''
    2. Associate an ``assistance'' relationship, as that term is 
defined in this part and used in this chapter, with any lower-tier 
transaction that it makes.
    B. However, the DoDGARs in this chapter do distinguish between 
two classes of lower-tier transactions that recipients and 
subrecipients make: Subawards and procurement transactions. The 
distinction promotes uniformity in requirements for lower-tier 
transactions under DoD grants and cooperative agreements. It is 
based on a long-standing distinction in OMB guidance to Federal 
agencies, currently at 2 CFR part 200, which DoD implements in this 
chapter.
    C. The distinction between a subaward and procurement 
transaction is based on the primary purpose of that transaction.
    1. The transaction is a subaward if a recipient or subrecipient 
enters into it with another entity at the next lower tier in order 
to transfer--for performance by that lower-tier entity--a portion of 
the substantive program for which the DoD grant or cooperative 
agreement provided financial assistance to the recipient. Because 
the Federal Grant and Cooperative Agreement Act does not apply to 
the recipient or subrecipient, it may make a subaward as defined in 
this part using an instrument that it considers a contract.
    2. The transaction is a procurement transaction if the recipient 
or subrecipient enters into it in order to purchase goods or 
services from the lower-tier entity that the recipient or 
subrecipient needs to perform its portion of the substantive program 
supported by the DoD award.

    Dated: July 24, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-16409 Filed 8-18-20; 8:45 am]
BILLING CODE 5001-06-P