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test and evaluation services by the providing party's officers, employees, or governmental agencies.

(2) The user party may also be charged indirect costs relating to the use of the test facility, but only to the extent specified in the memorandum or other agreement.

(c) DETERMINATION OF INDIRECT COSTS; DELEGATION OF AUTHORITY.—(1) The Secretary of Defense shall determine the appropriateness of the amount of indirect costs charged by the United States pursuant to subsection (b)(2).

(2) The Secretary may delegate the authority under paragraph (1) only to the Deputy Secretary of Defense and to one other official of the Department of Defense.

(d) RETENTION OF FUNDS COLLECTED BY THE UNITED STATES.— Amounts collected by the United States from a party using a test facility of the United States pursuant to a memorandum or other agreement under this section shall be credited to the appropriation accounts from which the costs incurred by the United States in providing such test facility were paid. (e) DEFINITIONS. In this section:

(1) The term “direct cost”, with respect to the use of a test facility pursuant to a memorandum or other agreement under subsection (a)

(A) means any item of cost that is easily and readily identified to a specific unit of work or output within the test facility where the use occurred, that would not have been incurred if such use had not occurred; and

(B) may include costs of labor, materials, facilities, utilities, equipment, supplies, and any other resources of the test facility that are consumed or damaged in connection with

(i) the use; or

(ii) the maintenance of the test facility for purposes of the use. (2) The term "indirect cost", with respect to the use of a test facility pursuant to a memorandum or other agreement under subsection (a)

(A) means any item of cost that is not easily and readily identified to a specific unit of work or output within the test facility where the use occurred; and

(B) may include general and administrative expenses for such activities as supporting base operations, manufacturing, supervision, procurement of office supplies, and utilities that are accumulated costs allocated among several users.

(3) The term “test facility” means a range or other facility at which testing of defense equipment may be carried out. (Added P.L. 107–107, $ 1213(a), Dec. 28, 2001, 115 Stat. 1250.)

CHAPTER 139_RESEARCH AND DEVELOPMENT

Sec. 2351. Availability of appropriations. (2352. Repealed.] 2353. Contracts: acquisition, construction, or furnishing of test facilities and

equipment. 2354. Contracts: indemnification provisions. [2355. Repealed.) [2356. Repealed.] [2357. Repealed.] 2358. Research and development projects. 2359. Science and technology programs to be conducted so as to foster the transi

tion of science and technology to higher levels of research, development,

test, and evaluation. 2359a. Technology Transition Initiative. 2359b. Defense Acquisition Challenge Program. 2360. Research and development laboratories: contracts for services of university

students. 2361. Award of grants and contracts to colleges and universities: requirement of

competition. [2362. Repealed.] (2363. Repealed.] 2364. Coordination and communication of defense research activities. [2365. Repealed.) 2366. Major systems and munitions programs: survivability testing and lethality

testing required before full-scale production. 2367. Use of federally funded research and development centers. [2368. Repealed.] [2369. Repealed.) (2370. Repealed. 2370a. Medical countermeasures against biowarfare threats: allocation of funding

between near-term and other threats. 2371. Research projects: transactions other than contracts and grants. 2371a. Cooperative research and development agreements under Stevenson

Wydler Technology Innovation Act of 1980. 2372. Independent research and development and bid and proposal costs:

payments to contractors. 2373. Procurement for experimental purposes, 2374. Merit-based award of grants for research and development. 2374a. Prizes for advanced technology achievements. 2374b. Prizes for achievements in promoting science, mathematics, engineering,

or technology education. $ 2351. Availability of appropriations

(a) Funds appropriated to the Department of Defense for research and development remain available for obligation for a period of two consecutive years.

(b) Funds appropriated to the Department of Defense for research and development may be used

(1) for the purposes of section 2353 of this title; and

(2) for purposes related to research and development for which expenditures are specifically authorized in other appro[$ 2352. Repealed. P.L. 104-106, § 1062(c)(1), Feb. 10, 1996,

priations for the Department of Defense. (Added as $2361 P.L. 97–258, $2(b)(3)(B), Sept. 13, 1982, 96 Stat. 1052; transferred, redesignated as $2351, and amended P.L. 100–370, şi(g)(1), July 19, 1988, 102 Stat. 846.)

110 Stat. 444] $ 2353. Contracts: acquisition, construction, or furnishing of

test facilities and equipment (a) A contract of a military department for research or development, or both, may provide for the acquisition or construction by, or furnishing to, the contractor, of research, developmental, or test facilities and equipment that the Secretary of the military department concerned determines to be necessary for the performance of the contract. The facilities and equipment, and specialized housing for them, may be acquired or constructed at the expense of the United States, and may be lent or leased to the contractor with or without reimbursement, or may be sold to him at fair value. This subsection does not authorize new construction or improvements having general utility.

(b) Facilities that would not be readily removable or separable without unreasonable expense or unreasonable loss of value may not be installed or constructed under this section on property not owned by the United States, unless the contract contains

(1) a provision for reimbursing the United States for the fair value of the facilities at the completion or termination of the contract or within a reasonable time thereafter;

(2) an option in the United States to acquire the underlying land; or

(3) an alternative provision that the Secretary concerned considers to be adequate to protect the interests of the United States in the facilities.

(c) Proceeds of sales or reimbursements under this section shall be paid into the Treasury as miscellaneous receipts, except to the extent otherwise authorized by law with respect to property acquired by the contractor. (Aug. 10, 1956, ch. 1041, 70A Stat. 134.) $ 2354. Contracts: indemnification provisions

(a) With the approval of the Secretary of the military department concerned, any contract of a military department for research or development, or both, may provide that the United States will indemnify the contractor against either or both of the following, but only to the extent that they arise out of the direct performance of the contract and to the extent not compensated by insurance or otherwise:

(1) Claims (including reasonable expenses of litigation or settlement) by third persons, including employees of the contractor, for death, bodily injury, or loss of or damage to property, from a risk that the contract defines as unusually hazardous.

(2) Loss of or damage to property of the contractor from a risk that the contract defines as unusually hazardous.

(b) A contract, made under subsection (a), that provides for indemnification must also provide for

(1) notice to the United States of any claim or suit against the contractor for the death, bodily injury, or loss of or damage to property; and

(2) control of or assistance in the defense by the United States, at its election, of that suit or claim.

(c) No payment may be made under subsection (a) unless the Secretary of the department concerned, or an officer or official of his department designated by him, certifies that the amount is just and reasonable.

(d) Upon approval by the Secretary concerned, payments under subsection (a) may be made from

(1) funds obligated for the performance of the contract concerned;

(2) funds available for research or development, or both, and not otherwise obligated; or

(3) funds appropriated for those payments. (Aug. 10, 1956, ch. 1041, 70A Stat. 134.) [2355. Repealed. P.L. 103–355, $ 2002(a), Oct. 13, 1994, 108

Stat. 3303] [$2356. Repealed. P.L. 104-106, $ 802(a), Feb. 10, 1996, 110

Stat. 390] [$ 2357. Repealed. P.L. 101-510, § 1301(11), Nov. 5, 1990, 104

Stat. 1668)

$ 2358. Research and development projects

(a) AUTHORITY.—The Secretary of Defense or the Secretary of a military department may engage in basic research, applied research, advanced research, and development projects that

1 Section 606 of P.L. 92–436 provides:

SEC. 606. (a) No part of the funds appropriated pursuant to this or any other Act for the Department of Defense or any of the Armed Forces may be used at any institution of higher learning if the Secretary of Defense or his designee determines that recruiting personnel of any of the Armed Forces of the United States are being barred by the policy of such institution from the premises of the institution; except in a case where the Secretary of the service concerned certifies to the Congress in writing that a specific course of instruction is not available at any other institution of higher learning and furnishes to the Congress the reasons why such course of instruction is of vital importance to the security of the United States.

(b) The prohibition made by subsection (a) of this section as it applies to research and development funds shall not apply if the Secretary of Defense or his designee determines that the expenditure is a continuation or a renewal of a previous program with such institution which is likely to make a significant contribution to the defense effort.

(c) The Secretaries of the military departments shall furnish to the Secretary of Defense or his designee within 60 days after (Sept. 29, 1972) and each January 31 and June 30 thereafter the names of any institution of higher learning which the Secretaries determine on such dates are affected by the prohibitions contained in this section.

Section 252 of the National Defense Authorization Act for Fiscal Year 1994 (P.L. 103–160; 107 Stat. 1607) provides: SEC. 252. INCLUSION OF WOMEN AND MINORITIES IN CLINICAL RESEARCH

PROJECTS. (a) GENERAL RULE.—In conducting or supporting clinical research, the Secretary of Defense shall ensure that

(1) women who are members of the Armed Forces are included as subjects in each project of such research; and

(2) members of minority groups who are members of the Armed Forces are included as subjects of such research. (b) WAIVER AUTHORITY.—The requirement in subsection (a) regarding women and members of minority groups who are members of the Armed Forces may be waived by the Secretary of Defense with respect to a project of clinical research if the Secretary determines that the inclusion, as subjects in the project, of women and members of minority groups, respectively,

(1) is inappropriate with respect to the health of the subjects;
(2) is inappropriate with respect to the purpose of the research; or

(3) is inappropriate under such other circumstances as the Secretary of Defense may designate. (c) REQUIREMENT FOR ANALYSIS OF RESEARCH.—In the case of a project of clinical research in which women or members of minority groups will under subsection (a) be included as subjects of the research, the Secretary of Defense shall ensure that the project is designed and carried out so as to provide for a valid analysis of whether the variables being tested in the research affect women or members of minority groups, as the case may be, differently than other persons who are subjects of the research.

Subsections (a) through (d) of section 802 of the National Defense Authorization Act for Fiscal Year 1994 (P.L. 103–160), as amended, provide:

(a) ESTABLISHMENT.-The Secretary of Defense, through the Director of Defense Research and Engineering, may establish a University Research Initiative Support Program.

(b) PURPOSE.—Under the program, the Director may award grants and contracts to eligible institutions of higher education to support the conduct of research and development relevant to requirements of the Department of Defense.

(c) ELIGIBILITY.-An institution of higher education is eligible for a grant or contract under the program if the institution has received less than a total of $2,000,000 in grants and contracts from the Department of Defense in the two most recent fiscal years for which complete statistics are available when proposals are requested for such grant or contract.

(d) COMPETITION REQUIRED.—The Director shall use competitive procedures in awarding grants and contracts under the program.

(e) SELECTION PROCESS.-In awarding grants and contracts under the program, the Director shall use a merit-based selection process that is consistent with the provisions of section 2361(a) of title 10, United States Code.

Section 257 of the National Defense Authorization Act for Fiscal Year 1995 (P.L. 103–337), as amended, provides: SEC. 257. DEFENSE EXPERIMENTAL PROGRAM TO STIMULATE COMPETITIVE RE

SEARCH. (a) PROGRAM REQUIRED.—The Secretary of Defense, acting through the Director of Defense Research and Engineering, shall carry out a Defense Experimental Program to Stimulate Competitive Research (DEPSCOR) as part of the university research programs of the Department of Defense.

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