[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2003 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
32
Parts 1 to 190
Revised as of July 1, 2003
National Defense
Containing a codification of documents of general
applicability and future effect
As of July 1, 2003
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 32:
Subtitle A--Department of Defense
Chapter I-- Office of the Secretary of Defense 5
Finding Aids:
Table of CFR Titles and Chapters........................ 761
Alphabetical List of Agencies Appearing in the CFR...... 779
List of CFR Sections Affected........................... 789
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 2.1 refers to
title 32, part 2, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2003.
[[Page ix]]
THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
End. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2003.
The current regulations issued by the Department of Defense appear
in the volumes containing parts 1-189 and parts 190-399; those issued by
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear
in the volume containing parts 700-799, and those issued by the
Department of the Air Force, Defense Logistics Agency, Selective Service
System, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office, National Security
Council, Office of Science and Technology Policy, Office for Micronesian
Status Negotiations, and Office of the Vice President of the United
States appear in the volume containing parts 800 to end.
[[Page x]]
[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This book contains parts 1 to 190)
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Part
SUBTITLE A--Department of Defense
chapter i--Office of the Secretary of Defense............... 2
Cross References: For Department of Defense Federal Acquisition
Regulations, see 48 CFR chapter 2.
[[Page 3]]
Subtitle A--Department of Defense
[[Page 5]]
CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE
(Parts 1 to 190)
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SUBCHAPTER A--ACQUISITION
Part Page
1 [Reserved]
2 Pilot program policy........................ 11
3 Transactions other than contracts, grants,
or cooperative agreements for prototype
projects................................ 13
4-8 [Reserved]
SUBCHAPTER B--MILITARY COMMISSIONS
9 Procedures for Trails by Military
Commissions of Certain.................. 21
10 Military Commission Instructions............ 30
11 Crimes and Elements of Trails by Military
Commission.............................. 31
12 Responsibilities of the Chief Prosecutor,
Prosecutors, and Assistant Prosecutors.. 42
13 Responsibilities of the Chief Defense
Counsel, Detailed Defense Counsel, and
Civilian Defense Counsel................ 44
14 Qualification of Civilian Defense Counsel... 47
15 Reporting Relationships for Military
Commission Personnel.................... 52
16 Sentencing.................................. 53
17 Administrative Procedures................... 54
18-20 [Reserved]
SUBCHAPTER C--DOD GRANT AND AGREEMENT REGULATIONS
21 DoD grants and agreements--General matters.. 57
22 DoD grants and agreements--Award and
administration.......................... 64
25 Governmentwide debarment and suspension
(nonprocurement) and governmentwide
requirements for drug-free workplace
(grants)................................ 97
[[Page 6]]
28 New restrictions on lobbying................ 116
32 Administrative requirements for grants and
agreements with institutions of higher
education, hospitals, and other non-
profit organizations.................... 128
33 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 157
34 Administrative requirements for grants and
agreements with for-profit organizations 185
SUBCHAPTER D--PERSONNEL, MILITARY AND CIVILIAN
43 Personal commercial solicitation on DoD
installations........................... 205
44 Screening the Ready Reserve................. 212
45 Certificate of release or discharge from
active duty (DD Form 214/5 Series)...... 216
47 Active duty service for civilian or
contractual groups...................... 231
48 Retired serviceman's family protection plan. 236
53 Wearing of the uniform...................... 246
54 Allotments for child and spousal support.... 246
56 Nondiscrimination on the basis of handicap
in programs and activities assisted or
conducted by the Department of Defense.. 251
57 Provision of early intervention and special
education services to eligible DoD
dependents in overseas areas............ 270
58 Human Immunodeficiency Virus (HIV-1)........ 292
59 Voluntary military pay allotments........... 299
61 Medical malpractice claims against military
and civilian personnel of the Armed
Forces.................................. 302
62b Drunk and drugged driving by DoD personnel.. 302
64 Management and mobilization of regular and
reserve retired military members........ 312
67 Educational requirements for appointment of
reserve component officers to a grade
above first lieutenant or lieutenant
(junior grade).......................... 317
68 Provision of free public education for
eligible children pursuant to section 6,
Public Law 81-874....................... 319
69 School boards for Department of Defense
domestic dependent elementary and
secondary schools....................... 325
70 Discharge review board (DRB) procedures and
standards............................... 329
71 Eligibility requirements for education of
minor dependents in overseas areas...... 364
73 Training simulators and devices............. 369
[[Page 7]]
74 Appointment of doctors of osteopathy as
medical officers........................ 373
75 Conscientious objectors..................... 374
77 Program to encourage public and community
service................................. 382
78 Voluntary State tax withholding from retired
pay..................................... 392
80 Provision of early intervention services to
eligible infants and toddlers with
disabilities and their families, and
special education children with
disabilities within the section 6 school
arrangements............................ 395
81 Paternity claims and adoption proceedings
involving members and former members of
the Armed Forces........................ 418
85 Health promotion............................ 420
86 Criminal history background checks on
individuals in child care services...... 424
88 Transition assistance for military personnel 435
93 Acceptance of service of process; release of
official information in litigation; and
testimony by NSA personnel as witnesses. 438
94 Naturalization of aliens serving in the
Armed Forces of the United States and of
alien spouses and/or alien adopted
children of military and civilian
personnel ordered overseas.............. 443
96 Acquisition and use of criminal history
record information by the military
services................................ 446
97 Release of official information in
litigation and testimony by DoD
personnel as witnesses.................. 448
99 Procedures for States and localities to
request indemnification................. 451
100 Unsatisfactory performance of ready reserve
obligation.............................. 453
101 Participation in Reserve training programs.. 458
104 Civilian employment and reemployment rights
of applicants for, and Service members
and former Service members of the
Uniformed Services...................... 461
105 Employment and volunteer work of spouses of
military personnel...................... 471
107 Personal services authority for direct
health care providers................... 473
110 Standardized rates of subsistence allowance
and commutation instead of uniforms for
members of the Senior Reserve Officers'
Training Corps.......................... 474
112 Indebtedness of military personnel.......... 480
113 Indebtedness procedures of military
personnel............................... 483
142 Copyrighted sound and video recordings...... 499
[[Page 8]]
143 DoD policy on organizations that seek to
represent or organize members of the
Armed Forces in negotiation or
collective bargaining................... 500
144 Service by members of the Armed Forces on
State and local juries.................. 503
145 Cooperation with the Office of Special
Counsel of the Merit Systems Protection
Board................................... 505
146 Compliance of DoD members, employees, and
family members outside the United States
with court orders....................... 510
147 Adjudicative guidelines for determining
eligibility for access to classified
information............................. 512
148 National policy and implementation of
reciprocity of facilities............... 525
149 Policy on technical surveillance
countermeasures......................... 528
SUBCHAPTER E--REGULATIONS PERTAINING TO MILITARY JUSTICE
150 Courts of criminal appeals rules of practice
and procedure........................... 530
151 Status of forces policies and information... 538
152 Review of the manual for courts-martial..... 544
153 Legal assistance matters.................... 547
SUBCHAPTER F--SECURITY
154 Department of Defense personnel security
program regulation...................... 551
155 Defense industrial personnel security
clearance program....................... 614
156 Department of Defense personnel security
program (DoDPSP)........................ 621
158 Guidelines for systematic declassification
review of classified information in
permanently valuable DoD records........ 623
SUBCHAPTER G--DEFENSE CONTRACTING
160 Defense acquisition regulatory system....... 631
162 Productivity Enhancing Capital Investment
(PECI).................................. 633
165 Recoupment of nonrecurring costs on sales of
U.S. items.............................. 637
168a National defense science and engineering
graduate fellowships.................... 641
169 Commercial activities program............... 642
169a Commercial activities program procedures.... 646
171 Implementation of Wildfire Suppression
Aircraft Transfer Act of 1996........... 688
172 Disposition of proceeds from DoD sales of
surplus personal property............... 691
[[Page 9]]
173 Competitive information certificate and
profit reduction clause................. 697
SUBCHAPTER H--CLOSURES AND REALIGNMENT
174 Revitalizing base closure communities....... 701
175 Revitalizing base closure communities--Base
closure community assistance............ 702
176 Revitalizing base closure communities and
community assistance--Community
redevelopment and homeless assistance... 717
SUBCHAPTER I--CIVIL DEFENSE
185 Military support to civil authorities (MSCA) 727
SUBCHAPTERS J-K [RESERVED]
SUBCHAPTER L--ENVIRONMENT
187 Environmental effects abroad of major
Department of Defense actions........... 739
189 Mineral exploration and extraction on DoD
lands................................... 748
190 Natural Resources Management Program........ 750
[[Page 11]]
SUBCHAPTER A--ACQUISITION
PART 1 [RESERVED]
PART 2--PILOT PROGRAM POLICY--Table of Contents
Sec.
2.1 Purpose.
2.2 Statutory relief for participating programs.
2.3 Regulatory relief for participating programs.
2.4 Designation of participating programs.
2.5 Criteria for designation of participating programs.
Authority: 10 U.S.C. 2340 note.
Source: 62 FR 17549, Apr. 10, 1997, unless otherwise noted.
Sec. 2.1 Purpose.
Section 809 of Public Law 101-510, ``National Defense Authorization
Act for Fiscal Year 1991,'' as amended by section 811 of Public Law 102-
484, ``National Defense Authorization Act for Fiscal Year 1993'' and
Public Law 103-160, ``National Defense Authorization Act for Fiscal Year
1994,'' authorizes the Secretary of Defense to conduct the Defense
Acquisition Pilot Program. In accordance with section 809 of Public Law
101-510, the Secretary may designate defense acquisition programs for
participation in the Defense Acquisition Pilot Program.
(a) The purpose of the pilot programs is to determine the potential
for increasing the efficiency and effectiveness of the acquisition
process. Pilot programs shall be conducted in accordance with the
standard commercial, industrial practices. As used in this policy, the
term ``standard commercial, industrial practice'' refers to any
acquisition management practice, process, or procedure that is used by
commercial companies to produce and sell goods and services in the
commercial marketplace. This definition purposely implies a broad range
of potential activities to adopt commercial practices, including
regulatory and statutory streamlining, to eliminate unique Government
requirements and practices such as government-unique contracting
policies and practices, government-unique specifications and standards,
and reliance on cost determination rather than price analysis.
(b) Standard commercial, industrial practices include, but are not
limited to:
(1) Innovative contracting policies and practices;
(2) Performance and commercial specifications and standards;
(3) Innovative budget policies;
(4) Establishing fair and reasonable prices without cost data;
(5) Maintenance of long-term relationships with quality suppliers;
(6) Acquisition of commercial and non-developmental items (including
components); and
(7) Other best commercial practices.
Sec. 2.2 Statutory relief for participating programs.
(a) Within the limitations prescribed, the applicability of any
provision of law or any regulation prescribed to implement a statutory
requirement may be waived for all programs participating in the Defense
Acquisition Pilot Program, or separately for each participating program,
if that waiver or limit is specifically authorized to be waived or
limited in a law authorizing appropriations for a program designated by
statute as a participant in the Defense Acquisition Pilot Program.
(b) Only those laws that prescribe procedures for the procurement of
supplies or services; a preference or requirement for acquisition from
any source or class of sources; any requirement related to contractor
performance; any cost allowability, cost accounting, or auditing
requirements; or any requirement for the management of, testing to be
performed under, evaluation of, or reporting on a defense acquisition
program may be waived.
(c) The requirements in section 809 of Public Law 101-510, as
amended by section 811 of Public Law 102-484, the requirements in any
law enacted on or after the enactment of Public Law 101-510 (except to
the extent that a waiver or limitation is specifically authorized for
such a defense acquisition program by statute), and any provision of law
that ensures the financial integrity of
[[Page 12]]
the conduct of a Federal Government program or that relates to the
authority of the Inspector General of the Department of Defense may not
be considered for waiver.
Sec. 2.3 Regulatory relief for participating programs.
(a) A program participating in the Defense Acquisition Pilot Program
will not be subject to any regulation, policy, directive, or
administrative rule or guideline relating to the acquisition activities
of the Department of Defense other than the Federal Acquisition
Regulation (FAR) \1\, the Defense FAR Supplement (DFARS) \2\, or those
regulatory requirements added by the Under Secretary of Defense for
Acquisition and Technology, the Head of the Component, or the DoD
Component Acquisition Executive.
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\1\ Copies of this Department of Defense publication may be obtained
from the Government Printing Office, Superintendent of Documents,
Washington, DC 20402.
\2\ See footnote 1 to Sec. 2.3(a).
---------------------------------------------------------------------------
(b) Provisions of the FAR and/or DFARS that do not implement
statutory requirements may be waived by the Under Secretary of Defense
for Acquisition and Technology using appropriate administrative
procedures. Provisions of the FAR and DFARS that implement statutory
requirements may be waived or limited in accordance with the procedures
for statutory relief previously mentioned.
(c) Regulatory relief includes relief from use of government-unique
specifications and standards. Since a major objective of the Defense
Acquisition Pilot Program is to promote standard, commercial industrial
practices, functional performance and commercial specifications and
standards will be used to the maximum extent practical. Federal or
military specifications and standards may be used only when no practical
alternative exists that meet the user's needs. Defense acquisition
officials (other than the Program Manager or Commodity Manager) may only
require the use of military specifications and standards with advance
approval from the Under Secretary of Defense for Acquisition and
Technology, the Head of the DoD Component, or the DoD Component
Acquisition Executive.
Sec. 2.4 Designation of participating programs.
(a) Pilot programs may be nominated by a DoD Component Head or
Component Acquisition Executive for participation in the Defense
Acquisition Pilot Program. The Under Secretary of Defense for
Acquisition and Technology shall determine which specific programs will
participate in the pilot program and will transmit to the Congressional
defense committees a written notification of each defense acquisition
program proposed for participation in the pilot program. Programs
proposed for participation must be specifically designated as
participants in the Defense Acquisition Pilot Program in a law
authorizing appropriations for such programs and provisions of law to be
waived must be specifically authorized for waiver.
(b) Once included in the Defense Acquisition Pilot Program, decision
and approval authority for the participating program shall be delegated
to the lowest level allowed in the acquisition regulations consistent
with the total cost of the program (e.g., under DoD Directive 5000.1,
\3\ an acquisition program that is a major defense acquisition program
would be delegated to the appropriate Component Acquisition Executive as
an acquisition category IC program)
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\3\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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(c) At the time of nomination approval, the Under Secretary of
Defense for Acquisition and Technology will establish measures to judge
the success of a specific program, and will also establish a means of
reporting progress towards the measures.
Sec. 2.5 Criteria for designation of participating programs.
(a) Candidate programs must have an approved requirement, full
program funding assured prior to designation, and low risk. Nomination
of a candidate program to participate in the Defense Acquisition Pilot
Program should occur as early in the program's life-cycle as possible.
Developmental programs will only be considered on an exception basis.
[[Page 13]]
(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 accompanied by rationale and
justification for the waiver. The justification must include:
---------------------------------------------------------------------------
\4\ See footnote 3 to Sec. 2.4(b).
\5\ See footnote 3 to Sec. 2.4(b).
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(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.
PART 3--TRANSACTIONS OTHER THAN CONTRACTS, GRANTS, OR COOPERATIVE AGREEMENTS
FOR PROTOTYPE PROJECTS--Table of Contents
Sec.
3.1 Purpose.
3.2 Background.
3.3 Applicability.
3.4 Definitions.
3.5 Appropriate use.
3.6 Limitations on cost-sharing.
3.7 Comptroller General access.
3.8 DoD access to records policy.
Authority: Sec. 845, Pub. L. 103-160, 107 Stat. 1547, as amended.
Source: 66 FR 57383, Nov. 15, 2001, unless otherwise noted.
Sec. 3.1 Purpose.
This part consolidates rules that implement section 845 of the
National Defense Authorization Act for Fiscal Year 1994, Public Law 103-
160, 107 Stat. 1547, as amended, and have a significant impact on the
public. Section 845 authorizes the Secretary of a Military Department,
the Director of Defense Advanced Research Projects Agency, and any other
official designated by the Secretary of Defense, to enter into
transactions other than contracts, grants, or cooperative agreements in
certain situations for prototype projects that are directly relevant to
weapons or weapon systems proposed to be acquired or developed by the
Department of Defense.
[67 FR 54956, Aug. 27, 2002]
Sec. 3.2 Background.
``Other transactions'' is the term commonly used to refer to the 10
U.S.C. 2371 authority to enter into transactions other than contracts,
grants or cooperative agreements. ``Other transactions'' are generally
not subject to the Federal laws and regulations limited in applicability
to contracts, grants or cooperative agreements. As such, they are not
required to comply with the Federal Acquisition Regulation (FAR) and its
supplements (48 CFR).
[67 FR 54956, Aug. 27, 2002]
Sec. 3.3 Applicability.
This part applies to the Secretary of a Military Department, the
Directors of the Defense Agencies, and any other official designated by
the Secretary of Defense to enter into transactions other than
contracts, grants or cooperative agreements for prototype projects that
are directly relevant to weapons or weapon systems proposed to be
acquired or developed by the Department of Defense, under authority of
10 U.S.C. 2371. Such transactions are commonly referred to as ``other
transaction'' agreements and are hereafter referred to as agreements.
[65 FR 35576, June 5, 2000. Redesignated at 67 FR 54956, Aug. 27, 2002]
[[Page 14]]
Sec. 3.4 Definitions.
Agency point of contact (POC). The individual identified by the
military department or defense agency as its POC for prototype OTs.
Agreements Officer. An individual with the authority to enter into,
administer, or terminate OTs for prototype projects and make related
determinations and findings.
Approving Official. The official responsible for approving the OTs
acquisition strategy and resulting OT agreement. This official must be
at least one level above the Agreements Officer and at no lower level
than existing agency thresholds associated with procurement contracts.
Awardee. Any business unit that is the direct recipient of an OT
agreement.
Business unit. Any segment of an organization, or an entire business
organization which is not divided into segments.
Contracting activity. An element of an agency designated by the
agency head and delegated broad authority regarding acquisition
functions. It includes elements designated by the Director of a Defense
Agency which has been delegated contracting authority through its agency
charter.
Cost-type OT. Agreements where payments are based on amounts
generated from the awardee's financial or cost records or that require
at least one third of the total costs to be provided by non-Federal
parties pursuant to statute or require submittal of financial or cost
records/reports to determine whether additional effort can be
accomplished for the fixed amount.
Fixed-price type OT. Agreements where payments are not based on
amounts generated from the awardee's financial or cost records.
Head of the contracting activity (HCA). The official who has overall
responsibility for managing the contracting activity.
Nontraditional Defense contractor. A business unit that has not, for
a period of at least one year prior to the date of the OT agreement,
entered into or performed on (1) any contract that is subject to full
coverage under the cost accounting standards prescribed pursuant to
section 26 of the Office of Federal Procurement Policy Act (41 U.S.C.
422) and the regulations implementing such section; or (2) any other
contract in excess of $500,000 to carry out prototype projects or to
perform basic, applied, or advanced research projects for a Federal
agency, that is subject to the Federal Acquisition Regulation.
Procurement contract. A contract awarded pursuant to the Federal
Acquisition Regulation.
Qualified Independent Public Accountant. An accountant that is
licensed or works for a firm that is licensed in the state or other
political jurisdiction where they operate their professional practice
and comply with the applicable provisions of the public accountancy law
and rules of the jurisdiction where the audit is being conducted.
Segment. One of two or more divisions, product departments, plants,
or other subdivisions of an organization reporting directly to a home
office, usually identified with responsibility for profit and/or
producing a product or service.
Senior Procurement Executive. The following individuals:
(1) Department of the Army--Assistant Secretary of the Army
(Acquisition, Logistics and Technology);
(2) Department of the Navy--Assistant Secretary of the Navy
(Research, Development and Acquisition);
(3) Department of the Air Force--Assistant Secretary of the Air
Force (Acquisition).
(4) The Directors of Defense Agencies who have been delegated
authority to act as Senior Procurement Executive for their respective
agencies.
Single Audit Act. Establishes uniform audit requirements for audits
of state and local government, universities, and non-profit
organizations that expend Federal awards.
Subawardee. Any business unit of a party, entity or subordinate
element performing effort under the OT agreement, other than the
awardee.
Traditional Defense contractor. Any business unit that does not meet
the definition of a nontraditional Defense contractor.
[68 FR 27457, May 20, 2003]
[[Page 15]]
Sec. 3.5 Appropriate use.
In accordance with statute, this authority may be used only when:
(a) At least one nontraditional Defense contractor is participating
to a significant extent in the prototype project; or
(b) No nontraditional Defense contractor is participating to a
significant extent in the prototype project, but at least one of the
following circumstances exists:
(1) At least one third of the total cost of the prototype project is
to be paid out of funds provided by non-Federal parties to the
transaction.
(2) The Senior Procurement Executive for the agency determines in
writing that exceptional circumstances justify the use of a transaction
that provides for innovative business arrangements or structures that
would not be feasible or appropriate under a procurement contract.
[67 FR 54956, Aug. 27, 2002]
Sec. 3.6 Limitations on cost-sharing.
(a) When a nontraditional Defense contractor is not participating to
a significant extent in the prototype project and cost-sharing is the
reason for using OT authority, then the non-Federal amounts counted as
provided, or to be provided, by the business units of an awardee or
subawardee participating in the performance of the OT agreement may not
include costs that were incurred before the date on which the OT
agreement becomes effective. Costs that were incurred for a prototype
project by the business units of an awardee or subawardee after the
beginning of negotiations, but prior to the date the OT agreement
becomes effective, may be counted as non-Federal amounts if and to the
extent that the Agreements Officer determines in writing that:
(1) The awardee or subawardee incurred the costs in anticipation of
entering into the OT agreement; and
(2) It was appropriate for the awardee or subawardee to incur the
costs before the OT agreement became effective in order to ensure the
successful implementation of the OT agreement.
(b) As a matter of policy, these limitations on cost-sharing apply
any time cost-sharing may be recognized when using OT authority for
prototype projects.
[67 FR 54956, Aug. 27, 2002]
Sec. 3.7 Comptroller General access.
(a) A clause must be included in solicitations and agreements for
prototype projects awarded under authority of 10 U.S.C. 2371, that
provide for total government payments in excess of $5,000,000 to allow
Comptroller General access to records that directly pertain to such
agreements.
(b) The clause referenced in paragraph (a) of this section will not
apply with respect to a party or entity, or subordinate element of a
party or entity, that has not entered into any other contract, grant,
cooperative agreement or ``other transaction'' agreement that provides
for audit access by a government entity in the year prior to the date of
the agreement. The clause must be included in all agreements described
in paragraph (a) of this section in order to fully implement the law by
covering those participating entities and their subordinate elements
which have entered into prior agreements providing for Government audit
access, and are therefore not exempt. The presence of the clause in an
agreement will not operate to require Comptroller General access to
records from any party or participating entity, or subordinate element
of a party or participating entity, or subordinate element of a party or
participating entity, which is otherwise exempt under the terms of the
clause and the law.
(c)(1) The right provided to the Comptroller General in a clause of
an agreement under paragraph (a) of this part, is limited as provided by
subparagraph (c)(2) of this part 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
cooperative 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 10 U.S.C. 2371 or Section 845
of the National Defense Authorization Act for Fiscal Year
[[Page 16]]
1994 (Pub. L. 103-160; 10 U.S.C. 2371 note).
(c)(2) The only records of a party, other entity, or subordinate
element referred to in subparagraph (c)(1) of this part 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 cooperative agreements or transactions referred
to in such subparagraph that were entered into by that particular party,
entity, or subordinate element.
(d) The head of the contracting activity (HCA) that is carrying out
the agreement may waive the applicability of the Comptroller General
access requirement if the HCA determines it would not be in the public
interest to apply the requirement to the agreement. The waiver will be
effective with respect to the agreement only if the HCA transmits a
notification of the waiver to the Committees on Armed Services of the
Senate and the House of Representatives, the Comptroller General, and
the Director, Defense Procurement before entering into the agreement.
The notification must include the rationale for the determination.
(e) The HCA must notify the Director, Defense Procurement of
situations where there is evidence that the Comptroller General Access
requirement caused companies to refuse to participate or otherwise
restricted the Department's access to companies that typically do not do
business with the Department.
(f) In no case will the requirement to examine records under the
clause referenced in paragraph (a) of this section apply to an agreement
where more than three years have passed after final payment is made by
the government under such an agreement.
(g) The clause referenced in paragraph (a) of this section, must
provide for the following:
(1) The Comptroller General of the United States, in the discretion
of the Comptroller General, shall have access to and the right to
examine records of any party to the agreement or any entity that
participates in the performance of this agreement that directly pertain
to, and involve transactions relating to, the agreement.
(2) Excepted from the Comptroller General access requirement is any
party to this agreement or any entity that participates in the
performance of the agreement, or any subordinate element of such party
or entity, that, in the year prior to the date of the agreement, has not
entered into any other contract, grant, cooperative agreement, or
``other transaction'' agreement that provides for audit access to its
records by a government entity.
(3)(A) The right provided to the Comptroller General is limited as
provided in subparagraph (B) in the case of a party to the agreement,
any entity that participates in the performance of the agreement, or a
subordinate element of that party or entity if the only cooperative
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 10 U.S.C. 2371 or Section 845
of the National Defense Authorization Act for Fiscal Year 1994 (Pub. L.
103-160; 10 U.S.C. 2371 note).
(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) This clause shall not be construed to require any party or
entity, or any subordinate element of such party or entity, that
participates in the performance of the agreement, to create or maintain
any record that is not otherwise maintained in the ordinary course of
business or pursuant to a provision of law.
(5) The Comptroller General shall have access to the records
described in this clause until three years after the
[[Page 17]]
date the final payment is made by the United States under this
agreement.
(6) The recipient of the agreement shall flow down this provision to
any entity that participates in the performance of the agreement.
[65 FR 35576, June 5, 2000. Redesignated at 67 FR 54956, Aug. 27, 2002]
Sec. 3.8 DoD access to records policy.
(a) Applicability. This section provides policy concerning DoD
access to awardee and subawardee records on OT agreements for prototype
projects. This access is separate and distinct from Comptroller General
access.
(1) Fixed-price type OT agreements. (i) General--DoD access to
records is not generally required for fixed-price type OT agreements. In
order for an agreement to be considered a fixed-price type OT agreement,
it must adequately specify the effort to be accomplished for a fixed
amount and provide for defined payable milestones, with no provision for
financial or cost reporting that would be a basis for making adjustment
in either the work scope or price of the effort.
(ii) Termination considerations. The need to provide for DoD access
to records in the case of termination of a fixed-price type OT can be
avoided by limiting potential termination settlements to an amount
specified in the original agreement or to payment for the last completed
milestone. However, if a fixed-price agreement provides that potential
termination settlement amounts may be based on amounts generated from
cost or financial records and the agreement exceeds the specified
threshold, the OT should provide that DoD will have access to records in
the event of termination.
(2) Cost-type OT agreements. (i) Single Audit Act--In accordance
with the requirements of Public Law 98-502, as amended by Public Law
104-156, 110 STAT. 1396-1404, when a business unit that will perform the
OT agreement, or a subawardee, meets the criteria for an audit pursuant
to the Single Audit Act, the DoD must have sufficient access to the
entity's records to assure compliance with the provisions of the Act.
(ii) Traditional Defense contractors. The DoD shall have access to
records on cost-type OT agreements with traditional Defense contractors
that provide for total Government payments in excess of $5,000,000. The
content of the access to records clause shall be in accordance with
paragraph (c) of this section. The value establishing the threshold is
the total value of the agreement including all options.
(iii) Nontraditional Defense contractors. The DoD should have access
to records on cost-type OT agreements with nontraditional Defense
contractors that provide for total Government payments in excess of
$5,000,000. The content of the access to records clause should be in
accordance with paragraph (c) of this section. The value establishing
the threshold is the total value of the agreement including all options.
(iv) DoD access below threshold. The Agreements Officer has the
discretion to determine whether to include DoD access to records when
the OT does not meet any of the requirements in (a)(2)(i) through
(a)(2)(iii) of this section. The content of that access to records
clause should be tailored to meet the particular circumstances of the
agreement.
(v) Examples of cost-type OT agreements. (A) An agreement that
requires at least one-third cost share pursuant to statute.
(B) An agreement that includes payable milestones, but provides for
adjustment of the milestone amounts based on actual costs or reports
generated from the awardee's financial or cost records.
(C) An agreement that is for a fixed-Government amount, but the
agreement provides for submittal of financial or cost records/reports to
determine whether additional effort can be accomplished for the fixed
amount.
(3) Subawardees. When a DoD access to records provision is included
in the OT agreement, the awardee shall use the criteria established in
paragraphs (a)(2)(i) through (a)(2)(iii) of this section to determine
whether DoD access to records clauses should be included in subawards.
(b) Exceptions. (1) Nontraditional Defense contractors--(i) The
Agreements Officers may deviate, in part or in
[[Page 18]]
whole, from the application of this access to records policy for a
nontraditional Defense contractor when application of the policy would
adversely impact the government's ability to incorporate commercial
technology or execute the prototype project.
(ii) The Agreements Officer will document:
(A) What aspect of the audit policy was not applied;
(B) Why it was problematic;
(C) What means will be used to protect the Government's interest;
and
(D) Why the benefits of deviating from the policy outweigh the
potential risks.
(iii) This determination will be reviewed by the approving official
as part of the pre-award approval of the agreement and submitted to the
agency POC within 10 days of award.
(iv) The agency POC will forward all such documentation received in
any given fiscal year, to the Director, Defense Procurement by 15
October of each year.
(2) Traditional Defense contractor. (i) Any departure from this
policy for other than nontraditional Defense contractors must be
approved by the Head of the Contracting Activity prior to award and set
forth the exceptional circumstances justifying deviation.
(ii) Additionally, the justification will document:
(A) What aspect of the policy was not applied;
(B) Why it was problematic;
(C) What means will be used to protect the Government's interest;
and
(D) Why the benefits of deviating from the policy outweigh the
potential risks.
(iii) The HCA will forward documentation associated with such
waivers in any given fiscal year, to the Director, Defense Procurement
by 15 October of each year.
(3) DoD access below the threshold. When the Agreements Officer
determines that access to records is appropriate for an agreement below
the $5,000,000 threshold, the content, length and extent of access may
be mutually agreed to by the parties, without documenting reasons for
departing from the policy of this section.
(4) Flow down provisions. The awardee shall submit justification for
any exception to the DoD access to records policy to the Agreements
Officer for subawardees. The Agreements Officer will review and obtain
appropriate approval, as set forth in paragraphs (b)(1) and (b)(2) of
this section.
(c) Content of DoD access to records clause. When a DoD access to
records clause is included as part of the OT agreement, address the
following areas during the negotiation of the clause:
(1) Frequency of audits. Audits will be performed when the
Agreements Officer determines it is necessary to verify statutory cost
share or to verify amounts generated from financial or cost records that
will be used as the basis for payment or adjustment of payment.
(2) Means of accomplishing audits. (i) Business units subject to the
Single Audit Act--When the awardee or subawardee is a state government,
local government, or nonprofit organization whose Federal cost
reimbursement contracts and financial assistance agreements are subject
to the Single Audit Act (Public Law 98-502, as amended by Public Law
104-156, 110 STAT. 1396-1404), the clause must apply the provisions of
that Act for purposes of performing audits of the awardee or subawardee
under the agreement.
(ii) Business units not subject to the Single Audit Act currently
performing on procurement contracts. The clause must provide that DCAA
will perform any necessary audits if, at the time of agreement award,
the awardee or subawardee is not subject to the Single Audit Act and is
performing a procurement contract that is subject to the Cost Principles
Applicable to Commercial Organizations (48 CFR part 31.2) and/or the
Cost Accounting Standards (48 CFR part 99).
(iii) Other business units. DCAA or a qualified IPA may perform any
necessary audit of a business unit of the awardee or subawardee if, at
the time of agreement award, the business unit does not meet the
criteria in (c)(2)(i) or (c)(2)(ii) of this section. The clause must
provide for the use of a qualified IPA if such a business unit will not
accept the agreement if the Government has access to the business unit's
[[Page 19]]
records. The Agreements Officer will include a statement in the file
that the business unit is not performing on a procurement contract
subject to the Cost Principles or Cost Accounting Standards at the time
of agreement award, and will not accept the agreement if the government
has access to the business unit's records. The Agreements Officer will
also prepare a report (Part III to the annual report submission) for the
Director, Defense Procurement that identifies, for each business unit
that is permitted to use an IPA: the business unit's name, address and
the expected value of its award. When the clause provides for use of an
IPA to perform any necessary audits, the clause must state that:
(A) The IPA will perform the audit in accordance with Generally
Accepted Government Auditing Standards (GAGAS). Electronic copies of the
standards may be accessed at www.gao.gov. Printed copies may be
purchased from the U.S. Government Printing Office (for ordering
information, call (202) 512-1800 or access the Internet Site at
www.gpo.gov).
(B) The Agreements Officers' authorized representative has the right
to examine the IPA's audit report and working papers for 3 years after
final payment or three years after issuance of the audit report,
whichever is later, unless notified otherwise by the Agreements Officer.
(C) The IPA will send copies of the audit report to the Agreements
Officer and the Assistant Inspector General (Audit Policy and Oversight)
[AIG(APO)], 400 Army Navy Drive, Suite 737, Arlington, VA 22202.
(D) The IPA will report instances of suspected fraud directly to the
DoDIG.
(E) The Government has the right to require corrective action by the
awardee or subawardee if the Agreements Officer determines (subject to
appeal under the disputes clause of the agreement) that the audit has
not been performed or has not been performed in accordance with GAGAS.
The Agreements Officer should take action promptly once the Agreements
Officer determines that the audit is not being accomplished in a timely
manner or the audit is not performed in accordance with GAGAS but
generally no later than twelve (12) months of the date requested by the
Agreements Officer. The awardee or subawardee may take corrective action
by having the IPA correct any deficiencies identified by the Agreements
Officer, having another IPA perform the audit, or electing to have the
Government perform the audit. If corrective action is not taken, the
Agreements Officer has the right to take one or more of the following
actions:
(1) Withhold or disallow a specified percentage of costs until the
audit is completed satisfactorily. The agreement should include a
specified percentage that is sufficient to enhance performance of
corrective action while also not being unfairly punitive.
(2) Suspend performance until the audit is completed satisfactorily;
and/or
(3) Terminate the agreement if the agreements officer determines
that imposition of either (c)(2)(iii)(E)(1) or (c)(2)(iii)(e)(2) of this
section is not practical.
(F) If it is found that the awardee or subawardee was performing a
procurement contract subject to Cost Principles Applicable to Commercial
Organizations (48 CFR part 31.2) and/or Cost Accounting Standards (48
CFR part 99) at the time of agreement award, the Agreements Officer, or
an authorized representative, has the right to audit records of the
awardee or subawardee to verify the actual costs or reporting
information used as the basis for payment or to verify statutorily
required cost share under the agreement, and the IPA is to be paid by
the awardee or subawardee. The cost of an audit performed in accordance
with this policy is reimbursable based on the business unit's
established accounting practices and subject to any limitations in the
agreement.
(3) Scope of audit. The Agreements Officer should coordinate with
the auditor regarding the nature of any audit envisioned.
(4) Length and extent of access. (i) Clauses that do not provide for
use of an IPA--The clause must provide for the Agreements Officer's
authorized representative to have access to directly pertinent records
of those business units of the awardee or subawardee's
[[Page 20]]
performing effort under the OT agreement, when needed to verify the
actual costs or reporting used as the basis for payment or to verify
statutorily required cost share under the agreement.
(ii) Clauses that provide for use of an IPA to perform the audits.
The clause must:
(A) Provide the Agreements Officer's authorized representative
access to the IPA's audit reports and working papers to ensure that the
IPA has performed the audit in accordance with GAGAS.
(B) State that the Government will make copies of contractor records
contained in the IPA's work papers if needed to demonstrate that the
audit was not performed in accordance with GAGAS.
(C) State that the Government has no direct access to any awardee or
subawardee records unless it is found that the awardee or subawardee was
performing a procurement contract subject to Cost Principles (48 CFR
part 31) and/or Cost Accounting Standards (48 CFR part 99) at the time
of agreement award.
(iii) Business Units subject to the Single Audit Act. The clause
must provide access to the extent authorized by the Single Audit Act.
(iv) Record Retention/Period of Access. The clause must require that
the awardee and subawardee retain, and provide access to, the records
referred to in (c)(4)(i) and (c)(4)(ii) of this section for three years
after final payment, unless notified of a shorter or longer period by
the Agreements Officer.
(5) Awardee flow down responsibilities. Agreements must require
awardees to include the necessary provisions in subawards that meet the
conditions set forth in this DoD access to records policy.
(d) DoDIG and GAO access. In accordance with statute, if an
agreement gives the Agreements Officer or another DoD component official
access to a business unit's records, the DoDIG or GAO are granted the
same access to those records.
[68 FR 27457, May 20, 2003]
PARTS 4-8 [RESERVED]
[[Page 21]]
SUBCHAPTER B--MILITARY COMMISSIONS
PART 9--PROCEDURES FOR TRIALS BY MILITARY COMMISSIONS OF CERTAIN NON-UNITED
STATES CITIZENS IN THE WAR AGAINST TERROISM--Table of Contents
Sec.
9.1 Purpose.
9.2 Establishment of Military Commissions.
9.3 Jurisdiction.
9.4 Commission personnel.
9.5 Procedures accorded the accused.
9.6 Conduct of the trial.
9.7 Regulations.
9.8 Authority.
9.9 Protection of State secrets.
9.10 Other.
9.11 Amendment.
9.12 Delegation.
Authority: 5 U.S.C. 552(1)(a)(1)(C) and (D).
Source: 68 FR 39374, July 1, 2003, unless otherwise noted.
Sec. 9.1 Purpose.
This part implements policy, assigns responsibilities, and
prescribes procedures under the United States Constitution, Article II,
section 2 and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism'' (3 CFR, 2001 comp., p. 918, 66 FR 57833), for trials before
military commissions of individuals subject to the President's Military
Order. These procedures shall be implemented and construed so as to
ensure that any such individual receives a full and fair trial before a
military commission, as required by the President's Military Order.
Unless otherwise directed by the Secretary of Defense, and except for
supplemental procedures established pursuant to the President's Military
Order or this part, the procedures prescribed herein and no others shall
govern such trials.
Sec. 9.2 Establishment of Military Commissions.
In accordance with the President's Military Order, the Secretary of
Defense or a designee (``Appointing Authority'') may issue orders from
time to time appointing one or more military commissions to try
individuals subject to the President's Military Order and appointing any
other personnel necessary to facilitate such trials.
Sec. 9.3 Jurisdiction.
(a) Over persons. A military commission appointed under this part
(``Commission'') shall have jurisdiction over only an individual or
individuals (``the Accused''):
(1) Subject to the President's Military Order; and
(2) Alleged to have committed an offense in a charge that has been
referred to the Commission by the Appointing Authority.
(b) Over offenses. Commissions established hereunder shall have
jurisdiction over violations of the laws of war and all other offenses
triable by military commission.
(c) Maintaining integrity of commission proceedings. The Commission
may exercise jurisdiction over participants in its proceedings as
necessary to preserve the integrity and order of the proceedings.
Sec. 9.4 Commission personnel.
(a) Members--(1) Appointment. The Appointing Authority shall appoint
the members and the alternate member or members of each Commission. The
alternate member or members shall attend all sessions of the Commission,
but the absence of an alternate member shall not preclude the Commission
from conducting proceedings. In case of incapacity, resignation, or
removal of any member, an alternate member shall take the place of that
member. Any vacancy among the members or alternate members occurring
after a trial has begun may be filled by the Appointing Authority, but
the substance of all prior proceedings and evidence taken in that case
shall be made known to that new member or alternate member before the
trial proceeds.
(2) Number of members. Each Commission shall consist of at least
three but
[[Page 22]]
no more than seven members, the number being determined by the
Appointing Authority. For each such Commission, there shall also be one
or two alternate members, the number being determined by the Appointing
Authority.
(3) Qualifications. Each member and alternate member shall be a
commissioned officer of the United States armed forces (``Military
Officer''), including without limitation reserve personnel on active
duty, National Guard personnel on active duty in Federal service, and
retired personnel recalled to active duty. The Appointing Authority
shall appoint members and alternate members determined to be competent
to perform the duties involved. The Appointing Authority may remove
members and alternate members for good cause.
(4) Presiding Officer. From among the members of each Commission,
the Appointing Authority shall designate a Presiding Officer to preside
over the proceedings of that Commission. The Presiding Officer shall be
a Military Officer who is a judge advocate of any United States armed
force.
(5) Duties of the Presiding Officer. (i) The Presiding Officer shall
admit or exclude evidence at trial in accordance with section 6(d) of
this part. The Presiding Officer shall have authority to close
proceedings or portions of proceedings in accordance with Sec. 9.6(b)(3)
of this part and for any other reason necessary for the conduct of a
full and fair trial.
(ii) The Presiding Officer shall ensure that the discipline,
dignity, and decorum of the proceedings are maintained, shall exercise
control over the proceedings to ensure proper implementation of the
President's Military Order and this part, and shall have authority to
act upon any contempt or breach of Commission rules and procedures. Any
attorney authorized to appear before a Commission who is thereafter
found not to satisfy the requirements for eligibility or who fails to
comply with laws, rules, regulations, or other orders applicable to the
Commission proceedings or any other individual who violates such laws,
rules, regulations, or orders may be disciplined as the Presiding
Officer deems appropriate, including but not limited to revocation of
eligibility to appear before that Commission. The Appointing Authority
may further revoke that attorney's or any other person's eligibility to
appear before any other Commission convened under this part.
(iii) The Presiding Officer shall ensure the expeditious conduct of
the trial. In no circumstance shall accommodation of counsel be allowed
to delay proceedings unreasonably.
(iv) The Presiding Officer shall certify all interlocutory
questions, the disposition of which would effect a termination of
proceedings with respect to a charge, for decision by the Appointing
Authority. The Presiding Officer may certify other interlocutory
questions to the Appointing Authority as the Presiding Officer deems
appropriate.
(b) Prosecution--(1) Office of the Chief Prosecutor. The Chief
Prosecutor shall be a judge advocate of any United States armed force,
shall supervise the overall prosecution efforts under the President's
Military Order, and shall ensure proper management of personnel and
resources.
(2) Prosecutors and Assistant Prosecutors. (i) Consistent with any
supplementary regulations or instructions issued under Sec. 9.7(a), the
Chief Prosecutor shall detail a Prosecutor and, as appropriate, one or
more Assistant Prosecutors to prepare charges and conduct the
prosecution for each case before a Commission (``Prosecution'').
Prosecutors and Assistant Prosecutors shall be:
(A) Military Officers who are judge advocates of any United States
armed force, or
(B) Special trial counsel of the Department of Justice who may be
made available by the Attorney General of the United States.
(ii) The duties of the Prosecution are:
(A) To prepare charges for approval and referral by the Appointing
Authority;
(B) To conduct the prosecution before the Commission of all cases
referred for trial; and
(C) To represent the interests of the Prosecution in any review
process.
(c) Defense--(1) Office of the Chief Defense Counsel. The Chief
Defense Counsel shall be a judge advocate of any
[[Page 23]]
United States armed force, shall supervise the overall defense efforts
under the President's Military Order, shall ensure proper management of
personnel and resources, shall preclude conflicts of interest, and shall
facilitate proper representation of all Accused.
(2) Detailed Defense Counsel. Consistent with any supplementary
regulations or instructions issued under Sec. 9.7(a), the Chief Defense
Counsel shall detail one or more Military Officers who are judge
advocates of any United States armed force to conduct the defense for
each case before a Commission (``Detailed Defense Counsel''). The duties
of the Detailed Defense Counsel are:
(i) To defend the Accused zealously within the bounds of the law
without regard to personal opinion as to the guilt of the Accused; and
(ii) To represent the interests of the Accused in any review process
as provided by this part.
(iii) Choice of Counsel. (A) The Accused may select a Military
Officer who is a judge advocate of any United States armed force to
replace the Accused's Detailed Defense Counsel, provided that Military
Officer has been determined to be available in accordance with any
applicable supplementary regulations or instructions issued under
Sec. 9.7(a). After such selection of a new Detailed Defense Counsel, the
original Detailed Defense Counsel will be relieved of all duties with
respect to that case. If requested by the Accused, however, the
Appointing Authority may allow the original Detailed Defense Counsel to
continue to assist in representation of the Accused as another Detailed
Defense Counsel.
(B) The Accused may also retain the services of a civilian attorney
of the Accused's own choosing and at no expense to the United States
Government (``Civilian Defense Counsel''), provided that attorney:
(1) Is a United States citizen;
(2) Is admitted to the practice of law in a State, district,
territory, or possession of the United States, or before a Federal
court;
(3) Has not been the subject of any sanction or disciplinary action
by any court, bar, or other competent governmental authority for
relevant misconduct;
(4) Has been determined to be eligible for access to information
classified at the level SECRET or higher under the authority of and in
accordance with the procedures prescribed in DoD 5200.2-R \1\; and
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\1\ Available from www.ditc.mil/whs/directives.
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(5) Has signed a written agreement to comply with all applicable
regulations or instructions for counsel, including any rules of court
for conduct during the course of proceedings. Civilian attorneys may be
pre-qualified as members of the pool of available attorneys if, at the
time of application, they meet the relevant criteria, or they may be
qualified on an ad hoc basis after being requested by an Accused.
Representation by Civilian Defense Counsel will not relieve Detailed
Defense Counsel of the duties specified in paragraph (c)(2) of this
section. The qualification of a Civilian Defense Counsel does not
guarantee that person's presence at closed Commission proceedings or
that person's access to any information protected under Sec. 9.6(d)(5).
(4) Continuity of representation. The Accused must be represented at
all relevant times by Detailed Defense Counsel. Detailed Defense Counsel
and Civilian Defense Counsel shall be herein referred to collectively as
``Defense Counsel.'' The Accused and Defense Counsel shall be herein
referred to collectively as ``the Defense.''
(d) Other Personnel. Other personnel, such as court reporters,
interpreters, security personnel, bailiffs, and clerks may be detailed
or employed by the Appointing Authority, as necessary.
Sec. 9.5 Procedures accorded the accused.
The following procedures shall apply with respect to the Accused:
(a) The Prosecution shall furnish to the Accused, sufficiently in
advance of trial to prepare a defense, a copy of the charges in English
and, if appropriate, in another language that the Accused understands.
(b) The Accused shall be presumed innocent until proven guilty.
(c) A Commission member shall vote for a finding of Guilty as to an
offense if and only if that member is convinced
[[Page 24]]
beyond a reasonable doubt, based on the evidence admitted at trial, that
the Accused is guilty of the offense.
(d) At least one Detailed Defense Counsel shall be made available to
the Accused sufficiently in advance of trial to prepare a defense and
until any findings and sentence become final in accordance with
Sec. 9.6(h)(2).
(e) The Prosecution shall provide the Defense with access to
evidence the Prosecution intends to introduce at trial and with access
to evidence known to the Prosecution that tends to exculpate the
Accused. Such access shall be consistent with Sec. 9.6(d)(5) and subject
to Sec. 9.9.
(f) The Accused shall not be required to testify during trial. A
Commission shall draw no adverse inference from an Accused's decision
not to testify. This subsection shall not preclude admission of evidence
of prior statements or conduct of the Accused.
(g) If the Accused so elects, the Accused may testify at trial on
the Accused's own behalf and shall then be subject to cross-examination.
(h) The Accused may obtain witnesses and documents for the Accused's
defense, to the extent necessary and reasonably available as determined
by the Presiding Officer. Such access shall be consistent with the
requirements of Sec. 9.6(d)(5) and subject to Sec. 9.9. The Appointing
Authority shall order that such investigative or other resources be made
available to the Defense as the Appointing Authority deems necessary for
a full and fair trial.
(i) The Accused may have Defense Counsel present evidence at trial
in the Accused's defense and cross-examine each witness presented by the
Prosecution who appears before the Commission.
(j) The Prosecution shall ensure that the substance of the charges,
the proceedings, and any documentary evidence are provided in English
and, if appropriate, in another language that the Accused understands.
The Appointing Authority may appoint one or more interpreters to assist
the Defense, as necessary.
(k) The Accused may be present at every stage of the trial before
the Commission, consistent with Sec. 9.6(b)(3), unless the Accused
engages in disruptive conduct that justifies exclusion by the Presiding
Officer. Detailed Defense Counsel may not be excluded from any trial
proceeding or portion thereof.
(l) Except by order of the Commission for good cause shown, the
Prosecution shall provide the Defense with access before sentencing
proceedings to evidence the Prosecution intends to present in such
proceedings. Such access shall be consistent with Sec. 9.6(d)(5) of this
part and subject to Sec. 9.9.
(m) The Accused may make a statement during sentencing proceedings.
(n) The Accused may have Defense Counsel submit evidence to the
Commission during sentencing proceedings.
(o) The Accused shall be afforded a trial open to the public (except
proceedings closed by the Presiding Officer), consistent with
Sec. 9.6(b).
(p) The Accused shall not again be tried by any Commission for a
charge once a Commission's finding on that charge becomes final in
accordance with Sec. 9.6(h)(2).
Sec. 9.6 Conduct of the trial.
(a) Pretrial procedures--(1) Preparation of the Charges. The
Prosecution shall prepare charges for approval by the Appointing
Authority, as provided in Sec. 9.4(b)(2)(i).
(2) Referral to the Commission. The Appointing Authority may approve
and refer for trial any charge against an individual or individuals
within the jurisdiction of a Commission in accordance with Sec. 9.3(a)
and alleging an offense within the jurisdiction of a Commission in
accordance with Sec. 9.3(b).
(3) Notification of the accused. The Prosecution shall provide
copies of the charges approved by the Appointing Authority to the
Accused and Defense Counsel. The Prosecution also shall submit the
charges approved by the Appointing Authority to the Presiding Officer of
the Commission to which they were referred.
(4) Plea Agreements. The Accused, through Defense Counsel, and the
Prosecution may submit for approval to the Appointing Authority a plea
agreement mandating a sentence limitation or any other provision in
exchange for an agreement to plead guilty, or any other consideration.
Any agreement to plead
[[Page 25]]
guilty must include a written stipulation of fact, signed by the
Accused, that confirms the guilt of the Accused and the voluntary and
informed nature of the plea of guilty. If the Appointing Authority
approves the plea agreement, the Commission will, after determining the
voluntary and informed nature of the plea agreement, admit the plea
agreement and stipulation into evidence and be bound to adjudge findings
and a sentence pursuant to that plea agreement.
(5) Issuance and service of process; obtaining evidence. (i) The
Commission shall have power to:
(A) Summon witnesses to attend trial and testify;
(B) Administer oaths or affirmations to witnesses and other persons
and to question witnesses;
(C) Require the production of documents and other evidentiary
material; and
(D) Designate special commissioners to take evidence.
(ii) The Presiding Officer shall exercise these powers on behalf of
the Commission at the Presiding Officer's own initiative, or at the
request of the Prosecution or the Defense, as necessary to ensure a full
and fair trial in accordance with the President's Military Order and
this part. The Commission shall issue its process in the name of the
Department of Defense over the signature of the Presiding Officer. Such
process shall be served as directed by the Presiding Officer in a manner
calculated to give reasonable notice to persons required to take action
in accordance with that process.
(b) Duties of the Commission during trial. The Commission shall:
(1) Provide a full and fair trial.
(2) Proceed impartially and expeditiously, strictly confining the
proceedings to a full and fair trial of the charges, excluding
irrelevant evidence, and preventing any unnecessary interference or
delay.
(3) Hold open proceedings except where otherwise decided by the
Appointing Authority or the Presiding Officer in accordance with the
President's Military Order and this part. Grounds for closure include
the protection of information classified or classifiable under Executive
Order 12958; information protected by law or rule from unauthorized
disclosure; the physical safety of participants in Commission
proceedings, including prospective witnesses; intelligence and law
enforcement sources, methods, or activities; and other national security
interests. The Presiding Officer may decide to close all or part of a
proceeding on the Presiding Officer's own initiative or based upon a
presentation, including an ex parte, in camera presentation by either
the Prosecution or the Defense. A decision to close a proceeding or
portion thereof may include a decision to exclude the Accused, Civilian
Defense Counsel, or any other person, but Detailed Defense Counsel may
not be excluded from any trial proceeding or portion thereof. Except
with the prior authorization of the Presiding Officer and subject to
section 9 of this part, Defense Counsel may not disclose any information
presented during a closed session to individuals excluded from such
proceeding or part thereof. Open proceedings may include, at the
discretion of the Appointing Authority, attendance by the public and
accredited press, and public release of transcripts at the appropriate
time. Proceedings should be open to the maximum extent practicable.
Photography, video, or audio broadcasting, or recording of or at
Commission proceedings shall be prohibited, except photography, video,
and audio recording by the Commission pursuant to the direction of the
Presiding Officer as necessary for preservation of the record of trial.
(4) Hold each session at such time and place as may be directed by
the Appointing Authority. Members of the Commission may meet in closed
conference at any time.
(5) As soon as practicable at the conclusion of a trial, transmit an
authenticated copy of the record of trial to the Appointing Authority.
(c) Oaths. (1) Members of a Commission, all Prosecutors, all Defense
Counsel, all court reporters, all security personnel, and all
interpreters shall take an oath to perform their duties faithfully.
(2) Each witness appearing before a Commission shall be examined
under oath, as provided in paragraph (d)(2)(ii) of this section.
[[Page 26]]
(3) An oath includes an affirmation. Any formulation that appeals to
the conscience of the person to whom the oath is administered and that
binds that person to speak the truth, or, in the case of one other than
a witness, properly to perform certain duties, is sufficient.
(d) Evidence--(1) Admissibility. Evidence shall be admitted if, in
the opinion of the Presiding Officer (or instead, if any other member of
the Commission so requests at the time the Presiding Officer renders
that opinion, the opinion of the Commission rendered at that time by a
majority of the Commission), the evidence would have probative value to
a reasonable person.
(2) Witnesses--(i) Production of witnesses. The Prosecution or the
Defense may request that the Commission hear the testimony of any
person, and such testimony shall be received if found to be admissible
and not cumulative. The Commission may also summon and hear witnesses on
its own initiative. The Commission may permit the testimony of witnesses
by telephone, audiovisual means, or other means; however, the Commission
shall consider the ability to test the veracity of that testimony in
evaluating the weight to be given to the testimony of the witness.
(ii) Testimony. Testimony of witnesses shall be given under oath or
affirmation. The Commission may still hear a witness who refuses to
swear an oath or make a solemn undertaking; however, the Commission
shall consider the refusal to swear an oath or give an affirmation in
evaluating the weight to be given to the testimony of the witness.
(iii) Examination of witnesses. A witness who testifies before the
Commission is subject to both direct examination and cross-examination.
The Presiding Officer shall maintain order in the proceedings and shall
not permit badgering of witnesses or questions that are not material to
the issues before the Commission. Members of the Commission may question
witnesses at any time.
(iv) Protection of witnesses. The Presiding Officer shall consider
the safety of witnesses and others, as well as the safeguarding of
Protected Information as defined in paragraph (d)(5)(i) of this section,
in determining the appropriate methods of receiving testimony and
evidence. The Presiding Officer may hear any presentation by the
Prosecution or the Defense, including an ex parte, in camera
presentation, regarding the safety of potential witnesses before
determining the ways in which witnesses and evidence will be protected.
The Presiding Officer may authorize any methods appropriate for the
protection of witnesses and evidence. Such methods may include, but are
not limited to: testimony by telephone, audiovisual means, or other
electronic means; closure of the proceedings; introduction of prepared
declassified summaries of evidence; and the use of pseudonyms.
(3) Other evidence. Subject to the requirements of paragraph (d)(1)
of this section concerning admissibility, the Commission may consider
any other evidence including, but not limited to, testimony from prior
trials and proceedings, sworn or unsworn written statements, physical
evidence, or scientific or other reports.
(4) Notice. The Commission may, after affording the Prosecution and
the Defense an opportunity to be heard, take conclusive notice of facts
that are not subject to reasonable dispute either because they are
generally known or are capable of determination by resort to sources
that cannot reasonably be contested.
(5) Protection of Information--(i) Protective Order. The Presiding
Officer may issue protective orders as necessary to carry out the
Military Order and this part, including to safeguard ``Protected
Information,'' which includes:
(A) Information classified or classifiable pursuant to Executive
Order 12958;
(B) Information protected by law or rule from unauthorized
disclosure;
(C) Information the disclosure of which may endanger the physical
safety of participants in Commission proceedings, including prospective
witnesses;
(D) Information concerning intelligence and law enforcement sources,
methods, or activities; or
(E) Information concerning other national security interests. As
soon as practicable, counsel for either side will
[[Page 27]]
notify the Presiding Officer of any intent to offer evidence involving
Protected Information.
(ii) Limited disclosure. The Presiding Officer, upon motion of the
Prosecution or sua sponte, shall, as necessary to protect the interests
of the United States and consistent with Sec. 9.9, direct:
(A) The deletion of specified items of Protected Information from
documents to be made available to the Accused, Detailed Defense Counsel,
or Civilian Defense Counsel;
(B) The substitution of a portion or summary of the information for
such Protected Information; or
(C) The substitution of a statement of the relevant facts that the
Protected Information would tend to prove. The Prosecution's motion and
any materials submitted in support thereof or in response thereto shall,
upon request of the Prosecution, be considered by the Presiding Officer
ex parte, in camera, but no Protected Information shall be admitted into
evidence for consideration by the Commission if not presented to
Detailed Defense Counsel.
(iii) Closure of proceedings. The Presiding Officer may direct the
closure of proceedings in accordance with paragraph (b)(3) of this
section.
(iv) Protected information as part of the record of trial. All
exhibits admitted as evidence but containing Protected Information shall
be sealed and annexed to the record of trial. Additionally, any
Protected Information not admitted as evidence but reviewed in camera
and subsequently withheld from the Defense over Defense objection shall,
with the associated motions and responses and any materials submitted in
support thereof, be sealed and annexed to the record of trial as
additional exhibits. Such sealed material shall be made available to
reviewing authorities in closed proceedings.
(e) Proceedings during trial. The proceedings at each trial will be
conducted substantially as follows, unless modified by the Presiding
Officer to suit the particular circumstances:
(1) Each charge will be read, or its substance communicated, in the
presence of the Accused and the Commission.
(2) The Presiding Officer shall ask each Accused whether the Accused
pleads ``Guilty'' or ``Not Guilty.'' Should the Accused refuse to enter
a plea, the Presiding Officer shall enter a plea of ``Not Guilty'' on
the Accused's behalf. If the plea to an offense is ``Guilty,'' the
Presiding Officer shall enter a finding of Guilty on that offense after
conducting sufficient inquiry to form an opinion that the plea is
voluntary and informed. Any plea of Guilty that is not determined to be
voluntary and informed shall be changed to a plea of Not Guilty. Plea
proceedings shall then continue as to the remaining charges. If a plea
of ``Guilty'' is made on all charges, the Commission shall proceed to
sentencing proceedings; if not, the Commission shall proceed to trial as
to the charges for which a ``Not Guilty'' plea has been entered.
(3) The Prosecution shall make its opening statement.
(4) The witnesses and other evidence for the Prosecution shall be
heard or received.
(5) The Defense may make an opening statement after the
Prosecution's opening statement or prior to presenting its case.
(6) The witnesses and other evidence for the Defense shall be heard
or received.
(7) Thereafter, the Prosecution and the Defense may introduce
evidence in rebuttal and surrebuttal.
(8) The Prosecution shall present argument to the Commission.
Defense Counsel shall be permitted to present argument in response, and
then the Prosecution may reply in rebuttal.
(9) After the members of the Commission deliberate and vote on
findings in closed conference, the Presiding Officer shall announce the
Commission's findings in the presence of the Commission, the
Prosecution, the Accused, and Defense Counsel. The individual votes of
the members of the Commission shall not be disclosed.
(10) In the event a finding of Guilty is entered for an offense, the
Prosecution and the Defense may present information to aid the
Commission in determining an appropriate sentence. The Accused may
testify and shall be subject to cross-examination regarding any such
testimony.
[[Page 28]]
(11) The Prosecution and, thereafter, the Defense shall present
argument to the Commission regarding sentencing.
(12) After the members of the Commission deliberate and vote on a
sentence in closed conference, the Presiding Officer shall announce the
Commission's sentence in the presence of the Commission, the
Prosecution, the Accused, and Defense Counsel. The individual votes of
the members of the Commission shall not be disclosed.
(f) Voting. Members of the Commission shall deliberate and vote in
closed conference. A Commission member shall vote for a finding of
Guilty as to an offense if and only if that member is convinced beyond a
reasonable doubt, based on the evidence admitted at trial, that the
Accused is guilty of the offense. An affirmative vote of two-thirds of
the members is required for a finding of Guilty. When appropriate, the
Commission may adjust a charged offense by exceptions and substitutions
of language that do not substantially change the nature of the offense
or increase its seriousness, or it may vote to convict of a lesser-
included offense. An affirmative vote of two-thirds of the members is
required to determine a sentence, except that a sentence of death
requires a unanimous, affirmative vote of all of the members. Votes on
findings and sentences shall be taken by secret, written ballot.
(g) Sentence. Upon conviction of an Accused, the Commission shall
impose a sentence that is appropriate to the offense or offenses for
which there was a finding of Guilty, which sentence may include death,
imprisonment for life or for any lesser term, payment of a fine or
restitution, or such other lawful punishment or condition of punishment
as the Commission shall determine to be proper. Only a Commission of
seven members may sentence an Accused to death. A Commission may
(subject to rights of third parties) order confiscation of any property
of a convicted Accused, deprive that Accused of any stolen property, or
order the delivery of such property to the United States for
disposition.
(h) Post-trial procedures--(1) Record of Trial. Each Commission
shall make a verbatim transcript of its proceedings, apart from all
Commission deliberations, and preserve all evidence admitted in the
trial (including any sentencing proceedings) of each case brought before
it, which shall constitute the record of trial. The court reporter shall
prepare the official record of trial and submit it to the Presiding
Officer for authentication upon completion. The Presiding Officer shall
transmit the authenticated record of trial to the Appointing Authority.
If the Secretary of Defense is serving as the Appointing Authority, the
record shall be transmitted to the Review Panel constituted under
paragraph (h)(4) of this section.
(2) Finality of findings and sentence. A Commission finding as to a
charge and any sentence of a Commission becomes final when the President
or, if designated by the President, the Secretary of Defense makes a
final decision thereon pursuant to section 4(c)(8) of the President's
Military Order and in accordance with paragraph (h)(6) of this section.
An authenticated finding of Not Guilty as to a charge shall not be
changed to a finding of Guilty. Any sentence made final by action of the
President or the Secretary of Defense shall be carried out promptly.
Adjudged confinement shall begin immediately following the trial.
(3) Review by the Appointing Authority. If the Secretary of Defense
is not the Appointing Authority, the Appointing Authority shall promptly
perform an administrative review of the record of trial. If satisfied
that the proceedings of the Commission were administratively complete,
the Appointing Authority shall transmit the record of trial to the
Review Panel constituted under paragraph (h)(4) of this section. If not
so satisfied, the Appointing Authority shall return the case for any
necessary supplementary proceedings.
(4) Review Panel. The Secretary of Defense shall designate a Review
Panel consisting of three Military Officers, which may include civilians
commissioned pursuant to section 603 of title 10, United States Code. At
least one member of each Review Panel shall have experience as a judge.
The Review Panel shall review the record of trial and, in its
discretion, any written submissions from the Prosecution and the Defense
and shall deliberate in closed
[[Page 29]]
conference. The Review Panel shall disregard any variance from
procedures specified in this part or elsewhere that would not materially
have affected the outcome of the trial before the Commission. Within
thirty days after receipt of the record of trial, the Review Panel shall
either:
(i) Forward the case to the Secretary of Defense with a
recommendation as to disposition, or
(ii) Return the case to the Appointing Authority for further
proceedings, provided that a majority of the Review Panel has formed a
definite and firm conviction that a material error of law occurred.
(5) Review by the Secretary of Defense. The Secretary of Defense
shall review the record of trial and the recommendation of the Review
Panel and either return the case for further proceedings or, unless
making the final decision pursuant to a Presidential designation under
section 4(c)(8) of the President's Military Order, forward it to the
President with a recommendation as to disposition.
(6) Final decision. After review by the Secretary of Defense, the
record of trial and all recommendations will be forwarded to the
President for review and final decision (unless the President has
designated the Secretary of Defense to perform this function). If the
President has so designated the Secretary of Defense, the Secretary may
approve or disapprove findings or change a finding of Guilty to a
finding of Guilty to a lesser-included offense, or mitigate, commute,
defer, or suspend the sentence imposed or any portion thereof. If the
Secretary of Defense is authorized to render the final decision, the
review of the Secretary of Defense under paragraph (h)(5) of this
section shall constitute the final decision.
Sec. 9.7 Regulations.
(a) Supplementary regulations and instructions. The Appointing
Authority shall, subject to approval of the General Counsel of the
Department of Defense if the Appointing Authority is not the Secretary
of Defense, publish such further regulations consistent with the
President's Military Order and this part as are necessary or appropriate
for the conduct of proceedings by Commissions under the President's
Military Order. The General Counsel shall issue such instructions
consistent with the President's Military Order and this part as the
General Counsel deems necessary to facilitate the conduct of proceedings
by such Commissions, including those governing the establishment of
Commission-related offices and performance evaluation and reporting
relationships.
(b) Construction. In the event of any inconsistency between the
President's Military Order and this part, including any supplementary
regulations or instructions issued under paragraph (a) of this section,
the provisions of the President's Military Order shall govern. In the
event of any inconsistency between this part and any regulations or
instructions issued under paragraph (a) of this section, the provisions
of this part shall govern.
Sec. 9.8 Authority.
Nothing in this part shall be construed to limit in any way the
authority of the President as Commander in Chief of the Armed Forces or
the power of the President to grant reprieves and pardons. Nothing in
this part shall affect the authority to constitute military commissions
for a purpose not governed by the President's Military Order.
Sec. 9.9 Protection of State secrets.
Nothing in this part shall be construed to authorize disclosure of
state secrets to any person not authorized to receive them.
Sec. 9.10 Other.
This part is not intended to and does not create any right, benefit,
or privilege, substantive or procedural, enforceable by any party,
against the United States, its departments, agencies, or other entities,
its officers or employees, or any other person. No provision in this
part shall be construed to be a requirement of the United States
Constitution. Section and subsection captions in this document are for
convenience only and shall not be used in construing the requirements of
this part. Failure to meet a time period specified in this
[[Page 30]]
part, or supplementary regulations or instructions issued under
Sec. 9.7(a), shall not create a right to relief for the Accused or any
other person. DoD Directive 5025.1 \2\ shall not apply to this part or
any supplementary regulations or instructions issued under Sec. 9.7(a).
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\2\ Available from www.ditc.mil/whs/directives.
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Sec. 9.11 Amendment.
The Secretary of Defense may amend this part from time to time.
Sec. 9.12 Delegation.
The authority of the Secretary of Defense to make requests for
assistance under section 5 of the President's Military Order is
delegated to the General Counsel of the Department of Defense. The
Executive Secretary of the Department of Defense shall provide such
assistance to the General Counsel as the General Counsel determines
necessary for this purpose.
PART 10--MILITARY COMMISION INSTRUCTIONS--Table of Contents
Sec.
10.1 Purpose.
10.2 Authority.
10.3 Applicability.
10.4 Policies and procedures.
10.5 Construction.
10.6 Non-creation of right.
10.7 Reservation of authority.
10.8 Amendment.
Authority: 10 U.S.C. 113Id) and 140(b).
Source: 68 FR 39380, July 1, 2003, unless otherwise noted.
Sec. 10.1 Purpose.
This part establishes policies for the issuance and interpretation
of Military Commission Instructions promulgated pursuant to 32 CFR part
9, and Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR,
2001 comp., p. 918, 66 FR 57833).
Sec. 10.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
10 U.S.C. 113(d) and 140(b).
Sec. 10.3 Applicability.
This part, and, unless stated otherwise, all other Military
Commission Instructions apply throughout the Department of Defense,
including to the Office of the Secretary of Defense, the Military
Departments, the Chairman and Vice Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant Commands, the Office of the Inspector
General of the Department of Defense, the Defense Agencies, the
Department of Defense Field Activities, and all other organizational
entities within the Department of Defense, to any special trial counsel
of the Department of Justice who may be made available by the Attorney
General of the United States to serve as a prosecutor in trials before
military commissions pursuant to 32 CFR 9.4(b)(2), to any civilian
attorney who seeks qualification as a member of the pool of qualified
Civilian Defense Counsel authorized in 32 CFR 9.4(c)(3)(ii), and to any
attorney who has been qualified as a member of that pool.
Sec. 10.4 Policies and procedures.
(a) Promulgation. Military Commission Instructions will be issued by
the General Counsel of the Department of Defense (hereinafter General
Counsel). Each Instruction will issue over the signature of the General
Counsel and, unless otherwise specified therein, shall take effect upon
the signature of the General Counsel. Instructions will be numbered in
sequence.
(b) Professional responsibility. Compliance with these Instructions
shall be deemed a professional responsibility obligation for the
practice of law within the Department of Defense.
(c) Compliance breaches. Failure to adhere to these Instructions or
any other failure to comply with any rule, regulation, or Instruction
applicable to trials by military commission convened pursuant to 32 CFR
part 9, and Military Order of November 13, 2001, ``Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against Terrorism,'' may be
subject to appropriate action by the Appointing Authority, the General
Counsel of the
[[Page 31]]
Department of Defense, or the Presiding Officer of a military
commission. Such action may include permanently barring an individual
from participating in any military commission proceeding convened
pursuant to 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' punitive measures imposed under 10 U.S.C. 898, and
any other lawful sanction.
Sec. 10.5 Construction.
Military Commission Instructions shall be construed in a manner
consistent with 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.'' Nothing in these Military Commission Instructions
applies with respect to the trial of crimes by military commissions
convened under other authority. In the event of an inconsistency, the
provisions of 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' shall govern as provided in Section 7(B) of
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism.'' Pronouns
referring to the male gender shall be construed as applying to both male
and female.
Sec. 10.6 Non-creation of right.
Neither this part nor any Military Commission Instruction issued
hereafter, is intended to and does not create any right, benefit,
privilege, substantive or procedural, enforceable by any party, against
the United States, its departments, agencies, or other entities, its
officers or employees, or any other person. Alleged noncompliance with
an Instruction does not, of itself, constitute error, give rise to
judicial review, or establish a right to relief for the Accused or any
other person.
Sec. 10.7 Reservation of authority.
Neither this part nor any Military Commission Instruction issued
hereafter shall be construed to limit, impair, or otherwise affect any
authority granted by the Constitution or laws of the United States or
Department of Defense regulation or directive.
Sec. 10.8 Amendment.
The General Counsel may issue, supplement, amend, or revoke any
Military Commission Instruction at any time.
PART 11--CRIMES AND ELEMENTS FOR TRIALS BY MILITARY COMMISSION--Table of
Contents
Sec.
11.1 Purpose.
11.2 Authority.
11.3 General.
11.4 Applicable principles of law.
11.5 Definitions.
11.6 Crimes and elements.
Authority: 10 U.S.C. 821.
Source: 68 FR 39381, July 1, 2003, unless otherwise noted.
Sec. 11.1 Purpose.
This part provides guidance with respect to crimes that may be tried
by military commissions established pursuant to 32 CFR part 9, and
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR, 2001
comp., p. 918, 66 FR 57833) and enumerates the elements of those crimes.
Sec. 11.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (66 FR 57833)
and 10 U.S.C. 113(d), 140(b), and 821. The provisions of 32 CFR part 10
are applicable to this part.
Sec. 11.3 General.
(a) Background. The following crimes and elements thereof are
intended for use by military commissions established pursuant to 32 CFR
part 9, and Military Order of November 13, 2001, ``Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against Terrorism,'' the
jurisdiction of which extends to offenses or offenders that by statute
or the law of armed
[[Page 32]]
conflict may be tried by military commission as limited by Military
Order of November 13, 2001, ``Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism.'' No offense is cognizable in
a trial by military commission if that offense did not exist prior to
the conduct in question. These crimes and elements derive from the law
of armed conflict, a body of law that is sometimes referred to as the
law of war. They constitute violations of the law of armed conflict or
offenses that, consistent with that body of law, are triable by military
commission. Because this document is declarative of existing law, it
does not preclude trial for crimes that occurred prior to its effective
date.
(b) Effect of other laws. No conclusion regarding the applicability
or persuasive authority of other bodies of law should be drawn solely
from the presence, absence, or similarity of particular language in this
part as compared to other articulations of law.
(c) Non-exclusivity. This part does not contain a comprehensive list
of crimes triable by military commission. It is intended to be
illustrative of applicable principles of the common law of war but not
to provide an exclusive enumeration of the punishable acts recognized as
such by that law. The absence of a particular offense from the corpus of
those enumerated herein does not preclude trial for that offense.
Sec. 11.4 Applicable principles of law.
(a) General intent. All actions taken by the Accused that are
necessary for completion of a crime must be performed with general
intent. This intent is not listed as a separate element. When the mens
rea required for culpability to attach involves an intent that a
particular consequence occur, or some other specific intent, an intent
element is included. The necessary relationship between such intent
element and the conduct constituting the actus reus is not articulated
for each set of elements, but is presumed; a nexus between the two is
necessary.
(b) The element of wrongfulness and defenses. Conduct must be
wrongful to constitute one of the offenses enumerated herein or any
other offense triable by military commission. Conduct is wrongful if it
is done without justification or excuse cognizable under applicable law.
The element of wrongfulness (or the absence of lawful justification or
excuse), which may be required under the customary law of armed
conflict, is not repeated in the elements of crimes in Sec. 11.6.
Conduct satisfying the elements found herein shall be inferred to be
wrongful in the absence of evidence to the contrary. Similarly, this
part does not enunciate defenses that may apply for specific offenses,
though an Accused is entitled to raise any defense available under the
law of armed conflict. Defenses potentially available to an Accused
under the law of armed conflict, such as self-defense, mistake of fact,
and duress, may be applicable to certain offenses subject to trial by
military commission. In the absence of evidence to the contrary,
defenses in individual cases shall be presumed not to apply. The burden
of going forward with evidence of lawful justification or excuse or any
applicable defense shall be upon the Accused. With respect to the issue
of combatant immunity raised by the specific enumeration of an element
requiring the absence thereof, the prosecution must affirmatively prove
that element regardless of whether the issue is raised by the defense.
Once an applicable defense or an issue of lawful justification or lawful
excuse is fairly raised by the evidence presented, except for the
defense of lack of mental responsibility, the burden is on the
prosecution to establish beyond a reasonable doubt that the conduct was
wrongful or that the defense does not apply. With respect to the defense
of lack of mental responsibility, the Accused has the burden of proving
by clear and convincing evidence that, as a result of a severe mental
disease or defect, the Accused was unable to appreciate the nature and
quality of the wrongfulness of the Accused's acts. As provided in 32 CFR
9.5(c), the prosecution bears the burden of establishing the Accused's
guilt beyond a reasonable doubt in all cases tried by a military
commission. Each element of an offense enumerated herein must be proven
beyond a reasonable doubt.
[[Page 33]]
(c) Statute of limitations. Violations of the laws of war listed
herein are not subject to any statute of limitations.
Sec. 11.5 Definitions.
(a) Combatant immunity. Under the law of armed conflict, only a
lawful combatant enjoys ``combatant immunity'' or ``belligerent
privilege'' for the lawful conduct of hostilities during armed conflict.
(b) Enemy. ``Enemy'' includes any entity with which the United
States or allied forces may be engaged in armed conflict, or which is
preparing to attack the United States. It is not limited to foreign
nations, or foreign military organizations or members thereof. ``Enemy''
specifically includes any organization of terrorists with international
reach.
(c) In the context of and was associated with armed conflict.
Elements containing this language require a nexus between the conduct
and armed hostilities. Such nexus could involve, but is not limited to,
time, location, or purpose of the conduct in relation to the armed
hostilities. The existence of such factors, however, may not satisfy the
necessary nexus (e.g., murder committed between members of the same
armed force for reasons of personal gain unrelated to the conflict, even
if temporally and geographically associated with armed conflict, is not
``in the context of'' the armed conflict). The focus of this element is
not the nature or characterization of the conflict, but the nexus to it.
This element does not require a declaration of war, ongoing mutual
hostilities, or confrontation involving a regular national armed force.
A single hostile act or attempted act may provide sufficient basis for
the nexus so long as its magnitude or severity rises to the level of an
``armed attack'' or an ``act of war,'' or the number, power, stated
intent or organization of the force with which the actor is associated
is such that the act or attempted act is tantamount to an attack by an
armed force. Similarly, conduct undertaken or organized with knowledge
or intent that it initiate or contribute to such hostile act or
hostilities would satisfy the nexus requirement.
(d) Military Objective. ``Military objectives'' are those potential
targets during an armed conflict which, by their nature, location,
purpose, or use, effectively contribute to the opposing force's war-
fighting or war-sustaining capability and whose total or partial
destruction, capture, or neutralization would constitute a military
advantage to the attacker under the circumstances at the time of the
attack.
(e) Object of the attack. ``Object of the attack'' refers to the
person, place, or thing intentionally targeted. In this regard, the term
includes neither collateral damage nor incidental injury or death.
(f) Protected property. ``Protected property'' refers to property
specifically protected by the law of armed conflict such as buildings
dedicated to religion, education, art, science or charitable purposes,
historic monuments, hospitals, or places where the sick and wounded are
collected, provided they are not being used for military purposes or are
not otherwise military objectives. Such property would include objects
properly identified by one of the distinctive emblems of the Geneva
Conventions but does not include all civilian property.
(g) Protected under the law of war. The person or object in question
is expressly ``protected'' under one or more of the Geneva Conventions
of 1949 or, to the extent applicable, customary international law. The
term does not refer to all who enjoy some form of protection as a
consequence of compliance with international law, but those who are
expressly designated as such by the applicable law of armed conflict.
For example, persons who either are hors de combat or medical or
religious personnel taking no active part in hostilities are expressly
protected, but other civilians may not be.
(h) Should have known. The facts and circumstances were such that a
reasonable person in the Accused's position would have had the relevant
knowledge or awareness.
Sec. 11.6 Crimes and elements.
(a) Substantive offenses--war crimes. The following enumerated
offenses, if applicable, should be charged in separate counts. Elements
are drafted to
[[Page 34]]
reflect conduct of the perpetrator. Each element need not be
specifically charged.
(1) Willful killing of protected persons--(i) Elements. (A) The
accused killed one or more persons;
(B) The accused intended to kill such person or persons;
(C) Such person or persons were protected under the law of war;
(D) The accused knew or should have known of the factual
circumstances that established that protected status; and
(E) The killing took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(2) Attacking civilians.--(i) Elements. (A) The accused engaged in
an attack;
(B) The object of the attack was a civilian population as such or
individual civilians not taking direct or active part in hostilities;
(C) The accused intended the civilian population as such or
individual civilians not taking direct or active part in hostilities to
be an object of the attack; and
(D) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(3) Attacking civilian objects.--(i) Elements. (A) The accused
engaged in an attack;
(B) The object of the attack was civilian property, that is,
property that was not a military objective;
(C) The accused intended such property to be an object of the
attack;
(D) The accused knew or should have known that such property was not
a military objective; and
(E) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(4) Attacking Protected Property--(i) Elements. (A) The accused
engaged in an attack;
(B) The object of the attack was protected property;
(C) The accused intended such property to be an object of the
attack;
(D) The accused knew or should have known of the factual
circumstances that established that protected status; and
(E) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(5) Pillaging--(i) Elements. (A) The accused appropriated or seized
certain property;
(B) The accused intended to appropriate or seize such property for
private or personal use;
(C) The appropriation or seizure was without the consent of the
owner of the property or other person with authority to permit such
appropriation or seizure; and
(D) The appropriation or seizure took place in the context of and
was associated with armed conflict.
(ii) Comments. As indicated by the use of the term ``private or
personal use,'' legitimate captures or appropriations, or seizures
justified by military necessity, cannot constitute the crime of
pillaging.
(6) Denying quarter--(i) Elements. (A) The accused declared,
ordered, or otherwise indicated that there shall be no survivors or
surrender accepted;
(B) The accused thereby intended to threaten an adversary or to
conduct hostilities such that there would be no survivors or surrender
accepted;
(C) It was foreseeable that circumstances would be such that a
practicable and reasonable ability to accept surrender would exist;
(D) The accused was in a position of effective command or control
over the subordinate forces to which the declaration or order was
directed; and
(E) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. Paragraph (a)(6)(i)(C) of this section precludes this
offense
[[Page 35]]
from being interpreted as limiting the application of lawful means or
methods of warfare against enemy combatants. For example, a remotely
delivered attack cannot give rise to this offense.
(7) Taking Hostages--(i) Elements. (A) The accused seized, detained,
or otherwise held hostage one or more persons;
(B) The accused threatened to kill, injure, or continue to detain
such person or persons;
(C) The accused intended to compel a State, an international
organization, a natural or legal person, or a group of persons to act or
refrain from acting as an explicit or implicit condition for the safety
or release of such person or persons; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. Consistent with Sec. 11.4(b), this offense cannot be
committed by lawfully detaining enemy combatants or other individuals as
authorized by the law of armed conflict.
(8) Employing poison or analogous weapons--(i) Elements. (A) The
accused employed a substance or a weapon that releases a substance as a
result of its employment;
(B) The substance was such that exposure thereto causes death or
serious damage to health in the ordinary course of events, through its
asphyxiating, poisonous, or bacteriological properties;
(C) The accused employed the substance or weapon with the intent of
utilizing such asphyxiating, poisonous, or bacteriological properties as
a method of warfare;
(D) The accused knew or should have known of the nature of the
substance or weapon; and
(E) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) The ``death or serious damage to health''
required by paragraph (a)(8)(i)(B) of this section must be a direct
result of the substance's effect or effects on the human body (e.g.,
asphyxiation caused by the depletion of atmospheric oxygen secondary to
a chemical or other reaction would not give rise to this offense).
(B) The clause ``serious damage to health'' does not include
temporary incapacitation or sensory irritation.
(C) The use of the ``substance or weapon'' at issue must be
proscribed under the law of armed conflict. It may include chemical or
biological agents.
(D) The specific intent element for this offense precludes liability
for mere knowledge of potential collateral consequences (e.g., mere
knowledge of a secondary asphyxiating or toxic effect would be
insufficient to complete the offense).
(9) Using protected persons as shields--(i) Elements. (A) The
accused positioned, or took advantage of the location of, one or more
civilians or persons protected under the law of war;
(B) The accused intended to use the civilian or protected nature of
the person or persons to shield a military objective from attack or to
shield, favor, or impede military operations; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(10) Using protected property as shields--(i) Elements. (A) The
accused positioned, or took advantage of the location of, civilian
property or property protected under the law of war;
(B) The accused intended to shield a military objective from attack
or to shield, favor, or impede military operations; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(11) Torture--(i) Elements. (A) The accused inflicted severe
physical or mental pain or suffering upon one or more persons;
(B) The accused intended to inflict such severe physical or mental
pain or suffering;
(C) Such person or persons were in the custody or under the control
of the accused; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) Consistent with Sec. 11.4(b), this offense does
not include pain or suffering arising only from, inherent in, or
incidental to, lawfully imposed punishments. This offense does
[[Page 36]]
not include the incidental infliction of pain or suffering associated
with the legitimate conduct of hostilities.
(B) Severe ``mental pain or suffering'' is the prolonged mental harm
caused by or resulting from:
(1) The intentional infliction or threatened infliction of severe
physical pain or suffering;
(2) The administration or application, or threatened administration
or application, of mind-altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
(3) The threat of imminent death; or
(4) The threat that another person will imminently be subjected to
death, severe physical pain or suffering, or the administration or
application of mind-altering substances or other procedures calculated
to disrupt profoundly the senses or personality.
(C) ``Prolonged mental harm'' is a harm of some sustained duration,
though not necessarily permanent in nature, such as a clinically
identifiable mental disorder.
(D) Paragraph (a)(11)(i)(C) of this section does not require a
particular formal relationship between the accused and the victim.
Rather, it precludes prosecution for pain or suffering consequent to a
lawful military attack.
(12) Causing serious injury--(i) Elements. (A) The accused caused
serious injury to the body or health of one or more persons;
(B) The accused intended to inflict such serious injury;
(C) Such person or persons were in the custody or under the control
of the accused; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. ``Serious injury'' includes fractured or dislocated
bones, deep cuts, torn members of the body, and serious damage to
internal organs.
(13) Mutilation or maiming--(i) Elements. (A) The accused subjected
one or more persons to mutilation, in particular by permanently
disfiguring the person or persons, or by permanently disabling or
removing an organ or appendage;
(B) The accused intended to subject such person or persons to such
mutilation;
(C) The conduct caused death or seriously damaged or endangered the
physical or mental health or appearance of such person or persons.
(D) The conduct was neither justified by the medical treatment of
the person or persons concerned nor carried out in the interest of such
person or persons;
(E) Such person or persons were in the custody or control of the
accused; and
(F) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(14) Use of treachery or perfidy--(i) Elements. (A) The accused
invited the confidence or belief of one or more persons that they were
entitled to, or were obliged to accord, protection under the law of war;
(B) The accused intended to betray that confidence or belief;
(C) The accused killed, injured, or captured one or more persons;
(D) The accused made use of that confidence or belief in killing,
injuring, or capturing such person or persons; and
(E) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(15) Improper use of flag of truce--(i) Elements. (A) The accused
used a flag of truce;
(B) The accused made such use in order to feign an intention to
negotiate, surrender, or otherwise to suspend hostilities when there was
no such intention on the part of the accused; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(16) Improper use of protective emblems--(i) Elements. (A) The
accused used a protective emblem recognized by the law of armed
conflict;
(B) The accused undertook such use for combatant purposes in a
manner prohibited by the law of armed conflict;
[[Page 37]]
(C) The accused knew or should have known of the prohibited nature
of such use; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. ``Combatant purposes,'' as used in paragraph
(a)(16)(i)(B) of this section, means purposes directly related to
hostilities and does not include medical, religious, or similar
activities.
(17) Degrading treatment of a dead body.--(i) Elements. (A) The
accused degraded or otherwise violated the dignity of the body of a dead
person;
(B) The accused intended to degrade or otherwise violate the dignity
of such body;
(C) The severity of the degradation or other violation was of such
degree as to be generally recognized as an outrage upon personal
dignity; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. Paragraph (a)(17)(i)(B) of this section precludes
prosecution for actions justified by military necessity.
(18) Rape--(i) Elements. (A) The accused invaded the body of a
person by conduct resulting in penetration, however slight, of any part
of the body of the victim or of the accused with a sexual organ, or of
the anal or genital opening of the victim with any object or any other
part of the body;
(B) The invasion was committed by force, threat of force or
coercion, or was committed against a person incapable of giving consent;
and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) Paragraph (a)(18)(i)(B) of this section
recognizes that consensual conduct does not give rise to this offense.
(B) It is understood that a person may be incapable of giving
consent if affected by natural, induced, or age-related incapacity.
(C) The concept of ``invasion'' is linked to the inherent
wrongfulness requirement for all offenses. In this case, for example, a
legitimate body cavity search could not give rise to this offense.
(D) The concept of ``invasion'' is gender neutral.
(b) Substantive offenses--other offenses triable by military
commission. The following enumerated offenses, if applicable, should be
charged in separate counts. Elements are drafted to reflect conduct of
the perpetrator. Each element need not be specifically charged.
(1) Hijacking or hazarding a vessel or aircraft--(i) Elements. (A)
The accused seized, exercised control over, or endangered the safe
navigation of a vessel or aircraft;
(B) The accused intended to so seize, exercise control over, or
endanger such vessel or aircraft; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. A seizure, exercise of control, or endangerment
required by military necessity, or against a lawful military objective
undertaken by military forces of a State in the exercise of their
official duties, would not satisfy the wrongfulness requirement for this
crime.
(2) Terrorism--(i) Elements. (A) The accused killed or inflicted
bodily harm on one or more persons or destroyed property;
(B) The accused:
(1) Intended to kill or inflict bodily harm on one or more persons;
or
(2) Intentionally engaged in an act that is inherently dangerous to
another and evinces a wanton disregard of human life;
(C) The killing, harm or destruction was intended to intimidate or
coerce a civilian population, or to influence the policy of a government
by intimidation or coercion; and
(D) The killing, harm or destruction took place in the context of
and was associated with armed conflict.
(ii) Comments. (A) Paragraph (b)(2)(i)(A) of this section includes
the concept of causing death or bodily harm, even if indirectly.
(B) The requirement that the conduct be wrongful for this crime
necessitates that the conduct establishing this offense not constitute
an attack against a lawful military objective undertaken by military
forces of a State in the exercise of their official duties.
[[Page 38]]
(3) Murder by an unprivileged belligerent--(i) Elements. (A) The
accused killed one or more persons;
(B) The accused:
(1) Intended to kill or inflict great bodily harm on such person or
persons; or
(2) Intentionally engaged in an act that is inherently dangerous to
another and evinces a wanton disregard of human life;
(C) The accused did not enjoy combatant immunity; and
(D) The killing took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) The term ``kill'' includes intentionally causing
death, whether directly or indirectly.
(B) Unlike the crimes of willful killing or attacking civilians, in
which the victim's status is a prerequisite to criminality, for this
offense the victim's status is immaterial. Even an attack on a soldier
would be a crime if the attacker did not enjoy ``belligerent privilege''
or ``combatant immunity.''
(4) Destruction of property by an unprivileged belligerent--(i)
Elements. (A) The accused destroyed property;
(B) The property belonged to another person, and the destruction was
without that person's consent;
(C) The accused intended to destroy such property;
(D) The accused did not enjoy combatant immunity; and
(E) The destruction took place in the context of and was associated
with armed conflict.
(ii) [Reserved]
(5) Aiding the enemy--(i) Elements. (A) The accused aided the enemy;
(B) The accused intended to aid the enemy; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) Means of accomplishing paragraph (b)(5)(i)(A) of
this section include, but are not limited to: providing arms,
ammunition, supplies, money, other items or services to the enemy;
harboring or protecting the enemy; or giving intelligence or other
information to the enemy.
(B) The requirement that conduct be wrongful for this crime
necessitates that the accused act without proper authority. For example,
furnishing enemy combatants detained during hostilities with subsistence
or quarters in accordance with applicable orders or policy is not aiding
the enemy.
(C) The requirement that conduct be wrongful for this crime may
necessitate that, in the case of a lawful belligerent, the accused owe
allegiance or some duty to the United States of America or to an ally or
coalition partner. For example, citizenship, resident alien status, or a
contractual relationship in or with the United States or an ally or
coalition partner is sufficient to satisfy this requirement so long as
the relationship existed at a time relevant to the offense alleged.
(6) Spying--(i) Elements. (A) The accused collected or attempted to
collect certain information;
(B) The accused intended to convey such information to the enemy;
(C) The accused, in collecting or attempting to collect the
information, was lurking or acting clandestinely, while acting under
false pretenses; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) Members of a military organization not wearing a
disguise and others who carry out their missions openly are not spies,
if, though they may have resorted to concealment, they have not acted
under false pretenses.
(B) Related to the requirement that conduct be wrongful or without
justification or excuse in this case is the fact that, consistent with
the law of war, a lawful combatant who, after rejoining the armed force
to which that combatant belongs, is subsequently captured, can not be
punished for previous acts of espionage. His successful rejoining of his
armed force constitutes a defense.
(7) Perjury or false testimony--(i) Elements.
(A) The accused testified at a military commission, in proceedings
ancillary to a military commission, or provided information in a writing
executed under an oath to tell the truth or a declaration acknowledging
the applicability of penalties of perjury in connection with such
proceedings;
[[Page 39]]
(B) Such testimony or information was material;
(C) Such testimony or information was false; and
(D) The accused knew such testimony or information to be false.
(ii) [Reserved]
(8) Obstruction of justice related to military commissions--(i)
Elements. (A) The accused did an act;
(B) The accused intended to influence, impede, or otherwise obstruct
the due administration of justice; and
(C) The accused did such act in the case of a certain person against
whom the accused had reason to believe:
(1) There were or would be proceedings before a military commission;
or
(2) There was an ongoing investigation of offenses triable by
military commission.
(ii) [Reserved]
(c) Other forms of liability and related offenses. A person is
criminally liable as a principal for a completed substantive offense if
that person commits the offense (perpetrator), aids or abets the
commission of the offense, solicits commission of the offense, or is
otherwise responsible due to command responsibility. Such a person would
be charged as a principal even if another individual more directly
perpetrated the offense. In proving culpability, however, the below
listed definitions and elements are applicable. Additionally, if a
substantive offense was completed, a person may be criminally liable for
the separate offense of accessory after the fact. If the substantive
offense was not completed, a person may be criminally liable of the
lesser-included offense of attempt or the separate offense of
solicitation. Finally, regardless of whether the substantive offense was
completed, a person may be criminally liable of the separate offense of
conspiracy in addition to the substantive offense. Each element need not
be specifically charged.
(1) Aiding or abetting--(i) Elements. (A) The accused committed an
act that aided or abetted another person or entity in the commission of
a substantive offense triable by military commission;
(B) Such other person or entity committed or attempted to commit the
substantive offense; and
(C) The accused intended to or knew that the act would aid or abet
such other person or entity in the commission of the substantive offense
or an associated criminal purpose or enterprise.
(ii) Comments. (A) The term ``aided or abetted'' in paragraph
(c)(1)(i)(A) of this section includes: assisting, encouraging, advising,
instigating, counseling, ordering, or procuring another to commit a
substantive offense; assisting, encouraging, advising, counseling, or
ordering another in the commission of a substantive offense; and in any
other way facilitating the commission of a substantive offense.
(B) In some circumstances, inaction may render one liable as an
aider or abettor. If a person has a legal duty to prevent or thwart the
commission of a substantive offense, but does not do so, that person may
be considered to have aided or abetted the commission of the offense if
such noninterference is intended to and does operate as an aid or
encouragement to the actual perpetrator.
(C) An accused charged with aiding or abetting should be charged
with the related substantive offense as a principal.
(2) Solicitation--(i) Elements. (A) The accused solicited, ordered,
induced, or advised a certain person or persons to commit one or more
substantive offenses triable by military commission; and
(B) The accused intended that the offense actually be committed.
(ii) Comments. (A) The offense is complete when a solicitation is
made or advice is given with the specific wrongful intent to induce a
person or persons to commit any offense triable by military commission.
It is not necessary that the person or persons solicited, ordered,
induced, advised, or assisted agree to or act upon the solicitation or
advice. If the offense solicited is actually committed, however, the
accused is liable under the law of armed conflict for the substantive
offense. An accused should not be convicted of both solicitation and the
substantive offense solicited if criminal liability for the substantive
offense is based upon the solicitation.
[[Page 40]]
(B) Solicitation may be by means other than speech or writing. Any
act or conduct that reasonably may be construed as a serious request,
order, inducement, advice, or offer of assistance to commit any offense
triable by military commission may constitute solicitation. It is not
necessary that the accused act alone in the solicitation, order,
inducement, advising, or assistance. The accused may act through other
persons in committing this offense.
(C) An accused charged with solicitation of a completed substantive
offense should be charged for the substantive offense as a principal. An
accused charged with solicitation of an uncompleted offense should be
charged for the separate offense of solicitation. Solicitation is not a
lesser-included offense of the related substantive offense.
(3) Command/superior responsibility--perpetrating--(i) Elements. (A)
The accused had command and control, or effective authority and control,
over one or more subordinates;
(B) One or more of the accused's subordinates committed, attempted
to commit, conspired to commit, solicited to commit, or aided or abetted
the commission of one or more substantive offenses triable by military
commission;
(C) The accused either knew or should have known that the
subordinate or subordinates were committing, attempting to commit,
conspiring to commit, soliciting, or aiding or abetting such offense or
offenses; and
(D) The accused failed to take all necessary and reasonable measures
within his power to prevent or repress the commission of the offense or
offenses.
(ii) Comments.
(A) The phrase ``effective authority and control'' in paragraph
(c)(3)(i)(A) of this section includes the concept of relative authority
over the subject matter or activities associated with the perpetrator's
conduct. This may be relevant to a civilian superior who should not be
held responsible for the behavior of subordinates involved in activities
that have no relationship to such superior's sphere of authority.
Subject matter authority need not be demonstrated for command
responsibility as it applies to a military commander.
(B) A commander or other military or civilian superior, not in
command, charged with failing adequately to prevent or repress a
substantive offense triable by military commission should be charged for
the related substantive offense as a principal.
(4) Command/superior responsibility--misprision--(i) Elements. (A)
The accused had command and control, or effective authority and control,
over one or more subordinates;
(B) One or more of the accused's subordinates had committed,
attempted to commit, conspired to commit, solicited to commit, or aided
or abetted the commission of one or more substantive offenses triable by
military commission;
(C) The accused knew or should have known that the subordinate or
subordinates had committed, attempted to commit, conspired to commit,
solicited, or aided or abetted such offense or offenses; and
(D) The accused failed to submit the matter to competent authorities
for investigation or prosecution as appropriate.
(ii) Comments.
(A) The phrase, ``effective authority and control'' in paragraph
(c)(4)(i)(A) of this section includes the concept of relative authority
over the subject matter or activities associated with the perpetrator's
conduct. This may be relevant to a civilian superior who cannot be held
responsible under this offense for the behavior of subordinates involved
in activities that have nothing to do with such superior's sphere of
authority.
(B) A commander or superior charged with failing to take appropriate
punitive or investigative action subsequent to the perpetration of a
substantive offense triable by military commission should not be charged
for the substantive offense as a principal. Such commander or superior
should be charged for the separate offense of failing to submit the
matter for investigation and/or prosecution as detailed in these
elements. This offense is not a lesser-included offense of the related
substantive offense.
[[Page 41]]
(5) Accessory after the fact--(i) Elements. (A) The accused
received, comforted, or assisted a certain person;
(B) Such person had committed an offense triable by military
commission;
(C) The accused knew that such person had committed such offense or
believed such person had committed a similar or closely related offense;
and
(D) The accused intended to hinder or prevent the apprehension,
trial, or punishment of such person.
(ii) Comments. Accessory after the fact should be charged separately
from the related substantive offense. It is not a lesser-included
offense of the related substantive offense.
(6) Conspiracy--(i) Elements. (A) The accused entered into an
agreement with one or more persons to commit one or more substantive
offenses triable by military commission or otherwise joined an
enterprise of persons who shared a common criminal purpose that
involved, at least in part, the commission or intended commission of one
or more substantive offenses triable by military commission;
(B) The accused knew the unlawful purpose of the agreement or the
common criminal purpose of the enterprise and joined in it willfully,
that is, with the intent to further the unlawful purpose; and
(C) One of the conspirators or enterprise members, during the
existence of the agreement or enterprise, knowingly committed an overt
act in order to accomplish some objective or purpose of the agreement or
enterprise.
(ii) Comments. (A) Two or more persons are required in order to have
a conspiracy. Knowledge of the identity of co-conspirators and their
particular connection with the agreement or enterprise need not be
established. A person may be guilty of conspiracy although incapable of
committing the intended offense. The joining of another conspirator
after the conspiracy has been established does not create a new
conspiracy or affect the status of the other conspirators. The agreement
or common criminal purpose in a conspiracy need not be in any particular
form or manifested in any formal words.
(B) The agreement or enterprise must, at least in part, involve the
commission or intended commission of one or more substantive offenses
triable by military commission. A single conspiracy may embrace multiple
criminal objectives. The agreement need not include knowledge that any
relevant offense is in fact ``triable by military commission.''
(C) The overt act must be done by one or more of the conspirators,
but not necessarily the accused, and it must be done to effectuate the
object of the conspiracy or in furtherance of the common criminal
purpose. The accused need not have entered the agreement or criminal
enterprise at the time of the overt act.
(D) The overt act need not be in itself criminal, but it must
advance the purpose of the conspiracy. It is not essential that any
substantive offense be committed.
(E) Each conspirator is liable for all offenses committed pursuant
to or in furtherance of the conspiracy by any of the co-conspirators,
after such conspirator has joined the conspiracy and while the
conspiracy continues and such conspirator remains a party to it.
(F) A party to the conspiracy who withdraws from or abandons the
agreement or enterprise before the commission of an overt act by any
conspirator is not guilty of conspiracy. An effective withdrawal or
abandonment must consist of affirmative conduct that is wholly
inconsistent with adherence to the unlawful agreement or common criminal
purpose and that shows that the party has severed all connection with
the conspiracy. A conspirator who effectively withdraws from or abandons
the conspiracy after the performance of an overt act by one of the
conspirators remains guilty of conspiracy and of any offenses committed
pursuant to the conspiracy up to the time of the withdrawal or
abandonment. The withdrawal of a conspirator from the conspiracy does
not affect the status of the remaining members.
(G) That the object of the conspiracy was impossible to effect is
not a defense to this offense.
(H) Conspiracy to commit an offense is a separate and distinct
offense from any offense committed pursuant to or in furtherance of the
conspiracy, and
[[Page 42]]
both the conspiracy and any related offense may be charged, tried, and
punished separately. Conspiracy should be charged separately from the
related substantive offense. It is not a lesser-included offense of the
substantive offense.
(7) Attempt--(i) Elements. (A) The accused committed an act;
(B) The accused intended to commit one or more substantive offenses
triable by military commission;
(C) The act amounted to more than mere preparation; and
(D) The act apparently tended to effect the commission of the
intended offense.
(ii) Comments. (A) To constitute an attempt there must be a specific
intent to commit the offense accompanied by an act that tends to
accomplish the unlawful purpose. This intent need not involve knowledge
that the offense is in fact ``triable by military commission.''
(B) Preparation consists of devising or arranging means or measures
apparently necessary for the commission of the offense. The act need not
be the last act essential to the consummation of the offense. The
combination of specific intent to commit an offense, plus the commission
of an act apparently tending to further its accomplishment, constitutes
the offense of attempt. Failure to complete the offense, whatever the
cause, is not a defense.
(C) A person who purposely engages in conduct that would constitute
the offense if the attendant circumstances were as that person believed
them to be is guilty of an attempt.
(D) It is a defense to an attempt offense that the person
voluntarily and completely abandoned the intended offense, solely
because of the person's own sense that it was wrong, prior to the
completion of the substantive offense. The voluntary abandonment defense
is not allowed if the abandonment results, in whole or in part, from
other reasons, for example, the person feared detection or apprehension,
decided to await a better opportunity for success, was unable to
complete the crime, or encountered unanticipated difficulties or
unexpected resistance.
(E) Attempt is a lesser-included offense of any substantive offense
triable by military commission and need not be charged separately. An
accused may be charged with attempt without being charged with the
substantive offense.
PART 12--RESPONSIBILITIES OF THE CHIEF PROSECUTOR, PROSECUTORS, AND
ASSISTANT PROSECUTORS--Table of Contents
Sec.
12.1 Purpose.
12.2 Authority.
12.3 Office of the Chief Prosecutor.
12.4 Duties and responsibilities of the prosecution.
12.5 Policies.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39388, July 1, 2003, unless otherwise noted.
Sec. 12.1 Purpose.
This part establishes the responsibilities of the Office of the
Chief Prosecutor and components thereof.
Sec. 12.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR, 2001
comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The
provisions of 32 CFR part 10 are applicable to this part.
Sec. 12.3 Office of the Chief Prosecutor.
(a) General. The Office of the Chief Prosecutor shall be a component
of the Office of Military Commissions and shall be comprised of the
Chief Prosecutor, Prosecutors, and other persons properly under the
supervision of the Chief Prosecutor.
(b) Chief Prosecutor. (1) The Chief Prosecutor shall be a judge
advocate of any United States armed force and shall be designated by the
General Counsel of the Department of Defense.
(2) The Chief Prosecutor shall report directly to the Deputy General
Counsel (Legal Counsel) of the Department of Defense.
(3) The Chief Prosecutor shall have authority to subpoena any
individual to appear as a witness, to testify, or to produce any
evidence in a case referred to military commissions or in a criminal
investigation associated with a
[[Page 43]]
case that may be referred to a military commission.
(4) The Chief Prosecutor shall direct the overall prosecution effort
pursuant to 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' ensuring proper supervision and management of all
personnel and resources assigned to the Office of the Chief Prosecutor.
(5) The Chief Prosecutor shall ensure that all personnel assigned to
the Office of the Chief Prosecutor review, and attest that they
understand and will comply with, 32 CFR part 9, and Military Order of
November 13, 2001,'' Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' and all Supplementary
Regulations and Instructions issued in accordance therewith.
(6) The Chief Prosecutor shall inform the Deputy General Counsel
(Legal Counsel) of all requirements for personnel, office space,
equipment, and supplies to ensure the successful functioning and mission
accomplishment of the Office of the Chief Prosecutor.
(7) The Chief Prosecutor shall supervise all Prosecutors and other
personnel assigned to the Office of the Chief Prosecutor including any
special trial counsel of the Department of Justice who may be made
available by the Attorney General of the United States.
(8) The Chief Prosecutor, or his designee, shall fulfill applicable
performance evaluation requirements associated with Prosecutors and
other personnel properly under the supervision of the Office of the
Chief Prosecutor.
(9) The Chief Prosecutor shall detail a Prosecutor and, as
appropriate, one or more Assistant Prosecutors to perform the duties of
the prosecution as set forth in 32 CFR 9.4(b)(2). The Chief Prosecutor
may detail himself to perform such duties.
(10) The Chief Prosecutor shall ensure that all Prosecutors and
Assistant Prosecutors faithfully represent the United States in
discharging their prosecutorial duties before military commissions
conducted pursuant to 32 CFR part 9, and Military Order of November 13,
2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism.''
(11) The Chief Prosecutor shall ensure that all Prosecutors and
Assistant Prosecutors have taken an oath to perform their duties
faithfully.
(12) The Chief Prosecutor shall ensure that all personnel properly
under the supervision of the Office of the Chief Prosecutor possess the
appropriate security clearances.
(c) Prosecutors. (1) Prosecutors shall be detailed by the Chief
Prosecutor and may be either judge advocates of any United States armed
force or special trial counsel of the Department of Justice who may be
made available by the Attorney General of the United States.
(2) Prosecutors shall represent the United States as Prosecutors or
Assistant Prosecutors as directed by the Chief Prosecutor and in
accordance with 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.''
(3) Prosecutors shall fulfill all responsibilities detailed in 32
CFR part 9, and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' those set forth in this part, and those assigned by the
Chief Prosecutor.
(4) Prosecutors shall ensure that all court reporters, security
personnel, and interpreters who are to perform duties in relation to a
military commission proceeding have taken an oath to perform their
duties faithfully. As directed by the Presiding Officer, Prosecutors
also shall administer appropriate oaths to witnesses during military
commission proceedings.
Sec. 12.4 Duties and responsibilities of the prosecution.
(a) Regular duties. The Prosecution shall perform all duties
specified or implied in 32 CFR part 9 as responsibilities of the
Prosecution.
(b) Administrative duties. The Prosecution shall, as directed by the
Presiding Officer or the Appointing Authority, prepare any documentation
necessary to facilitate the conduct of military commissions proceedings.
The Prosecution shall, as directed by the Deputy
[[Page 44]]
General Counsel (Legal Counsel), prepare a trial guide to provide a
standardized administrative plan for the conduct of military commission
proceedings. Unless directed otherwise by the Appointing Authority, the
Presiding Officer may, in his discretion, depart from this guide as
appropriate.
(c) Special duties. The Prosecution shall perform all other
functions, consistent with 32 CFR part 9, and Military Order of November
13, 2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,'' as may be directed by the Appointing
Authority or the General Counsel of the Department of Defense.
Sec. 12.5 Policies.
(a) Prohibition on Prosecutors serving as Defense Counsel. Judge
advocates assigned to the Office of the Chief Prosecutor shall be deemed
unavailable for service as Defense Counsel under 32 CFR 9.4(c)(3)(i).
(b) Prohibition on certain disclosures. All Prosecutors must
strictly comply with 32 CFR 9.6(d)(5) and 9.9 to ensure they do not
improperly disclose classified information, national security
information, or state secrets to any person not specifically authorized
to receive such information.
(c) Statements to the media. Consistent with DoD Directive 5122.5
\1\, the Assistant Secretary of Defense for Public Affairs shall serve
as the sole release authority for DoD information and audiovisual
materials regarding military commissions. Personnel assigned to the
Office of the Chief Prosecutor may communicate with news media
representatives regarding cases and other matters related to military
commissions only when approved by the Appointing Authority or the
General Counsel of the Department of Defense.
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PART 13--RESPONSIBILITIES OF THE CHIEF DEFENSE COUNSEL, DETAILED DEFENSE
COUNSEL, AND CIVILIAN DEFENSE COUNSEL--Table of Contents
Sec.
13.1 Purpose.
13.2 Authority.
13.3 Office of the Chief Defense Counsel.
13.4 Duties and responsibilities of the defense.
13.5 Policies.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39389, July 1, 2003, unless otherwise noted.
Sec. 13.1 Purpose.
This part establishes the responsibilities of the Office of Chief
Defense Counsel and components thereof.
Sec. 13.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR, 2001
comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The
provisions of 32 CFR part 10 are applicable to this part.
Sec. 13.3 Office of the Chief Defense Counsel.
(a) General. The Office of the Chief Defense Counsel shall be a
component of the Office of Military Commissions and shall be comprised
of the Chief Defense Counsel, Defense Counsel, and other such persons
properly under the supervision of the Chief Defense Counsel.
(b) Chief Defense Counsel. (1) The Chief Defense Counsel shall be a
judge advocate of any United States armed force and shall be designated
by the General Counsel of the Department of Defense.
(2) The Chief Defense Counsel shall report directly to the Deputy
General Counsel (Personnel and Health Policy) of the Department of
Defense.
(3) The Chief Defense Counsel shall supervise all defense activities
and the efforts of Detailed Defense Counsel and other office personnel
and resources pursuant to 32 CFR part 9, and Military Order of November
13, 2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,'' ensuring proper supervision and management
of all personnel and resources assigned to the Office of the Chief
Defense Counsel and facilitating the proper representation of all
Accused referred to trial before a military commission appointed
pursuant to 32
[[Page 45]]
CFR part 9, and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism.''
(4) The Chief Defense Counsel shall ensure that all personnel
assigned to the Office of the Chief Defense Counsel review, and attest
that they understand and will comply with, 32 CFR part 9, and Military
Order of November 13, 2001, ``Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism,'' and all Supplementary
Regulations and Instructions issued in accordance therewith.
Furthermore, the Chief Defense Counsel shall regulate the conduct of
Detailed Defense Counsel as deemed necessary, consistent with 32 CFR
part 9, and Military Order of November 13, 2001, ``Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against Terrorism,'' and
subordinate instructions and regulations, and specifically shall ensure
that Detailed Defense Counsel have been directed to conduct their
activities consistent with applicable prescriptions and proscriptions
specified in Section II of the Affidavit And Agreement By Civilian
Defense Counsel at Appendix B to 32 CFR part 14.
(5) The Chief Defense Counsel shall inform the Deputy General
Counsel (Personnel and Health Policy) of the Department of Defense of
all requirements for personnel, office space, equipment, and supplies to
ensure the successful functioning and mission accomplishment of the
Office of the Chief Defense Counsel.
(6) The Chief Defense Counsel shall supervise all Defense Counsel
and other personnel assigned to the Office of the Chief Defense Counsel.
(7) The Chief Defense Counsel, or his designee, shall fulfill
applicable performance evaluation requirements associated with Defense
Counsel and other personnel properly under the supervision of the Chief
Defense Counsel.
(8) The Chief Defense Counsel shall detail a judge advocate of any
United States armed force to perform the duties of the Detailed Defense
Counsel as set forth in 32 CFR 9.4(c)(2) and shall detail or employ any
other personnel as directed by the Appointing Authority or the Presiding
Officer in a particular case. The Chief Defense Counsel may not detail
himself to perform the duties of Detailed Defense Counsel, nor does he
form an attorney-client relationship with accused persons or incur any
concomitant confidentiality obligations.
(i) The Chief Defense Counsel may, when appropriate, detail an
additional judge advocate as Assistant Detailed Defense Counsel to
assist in performing the duties of the Detailed Defense Counsel.
(ii) The Chief Defense Counsel may structure the Office of the Chief
Defense Counsel so as to include subordinate supervising attorneys who
may incur confidentiality obligations in the context of fulfilling their
supervisory responsibilities with regard to Detailed Defense Counsel.
(9) The Chief Defense Counsel shall take appropriate measures to
preclude Defense Counsel conflicts of interest arising from the
representation of Accused before military commissions. The Chief Defense
Counsel shall be provided sufficient information (potentially including
protected information) to fulfill this responsibility.
(10) The Chief Defense Counsel shall take appropriate measures to
ensure that each Detailed Defense Counsel is capable of zealous
representation, unencumbered by any conflict of interest. In this
regard, the Chief Defense Counsel shall monitor the activities of all
Defense Counsel (Detailed and Civilian) and take appropriate measures to
ensure that Defense Counsel do not enter into agreements with other
Accused or Defense Counsel that might cause them or the Accused they
represent to incur an obligation of confidentiality with such other
Accused or Defense Counsel or to effect some other impediment to
representation.
(11) The Chief Defense Counsel shall ensure that an Accused tried
before a military commission pursuant to 32 CFR part 9, and Military
Order of November 13, 2001, ``Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism,'' is represented at all
relevant times by Detailed Defense Counsel.
(12) The Chief Defense Counsel shall administer all requests for
replacement Detailed Defense Counsel requested in
[[Page 46]]
accordance with 32 CFR 9.4(c)(3). He shall determine the availability of
such counsel in accordance with this part.
(13) The Chief Defense Counsel shall administer the Civilian Defense
Counsel pool, screening all requests for pre-qualification and ad hoc
qualification, making qualification determinations and recommendations
in accordance with 32 CFR part 9, this part, and 32 CFR part 14, and
ensuring appropriate notification to an Accused of civilian attorneys
available to represent Accused before a military commission.
(14) The Chief Defense Counsel shall ensure that all Detailed
Defense Counsel and Civilian Defense Counsel who are to perform duties
in relation to a military commission have taken an oath to perform their
duties faithfully.
(15) The Chief Defense Counsel shall ensure that all personnel
properly under the supervision of the Office of the Chief Defense
Counsel possess the appropriate security clearances.
(c) Detailed Defense Counsel. (1) Detailed Defense Counsel shall be
judge advocates of any United States armed force.
(2) Detailed Defense Counsel shall represent the Accused before
military commissions when detailed in accordance with 32 CFR part 9, and
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism.'' In this regard
Detailed Defense Counsel shall: defend the Accused to whom detailed
zealously within the bounds of the law and without regard to personal
opinion as to guilt; represent the interests of the Accused in any
review process as provided by 32 CFR part 9; and comply with the
procedures accorded the Accused pursuant to 32 CFR 9.5 and 9.6. Detailed
Defense Counsel shall so serve notwithstanding any intention expressed
by the Accused to represent himself.
(3) Detailed Defense Counsel shall have primary responsibility to
prevent conflicts of interest related to the handling of the cases to
which detailed.
(4) Detailed Defense Counsel shall fulfill all responsibilities
detailed in 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' those set forth in this part, and those assigned by
the Chief Defense Counsel.
(d) Selected Detailed Defense Counsel. (1) The Accused may select a
judge advocate of any United States armed force to replace the Accused's
Detailed Defense Counsel, provided that judge advocate has been
determined to be available by the Chief Defense Counsel in consultation
with the Judge Advocate General of that judge advocate's military
department.
(2) A judge advocate shall be determined not to be available if
assigned duties: as a general or flag officer; as a military judge; as a
prosecutor in the Office of Military Commissions; as a judge advocate
assigned to the Department of Defense Criminal Investigation Task Force
or Joint Task Force Guantanamo; as a principal legal advisor to a
command, organization, or agency; as an instructor or student at a
service school, academy, college or university; or in any other capacity
that the Judge Advocate General of the Military Department concerned may
determine not to be available because of the nature or responsibilities
of their assignments, exigent circumstances, military necessity, or
other appropriate reasons.
(3) Consistent with 32 CFR 9.6(b), the selection and replacement of
new Detailed Defense Counsel shall not unreasonably delay military
commission proceedings.
(4) Unless otherwise directed by the Appointing Authority or the
General Counsel of the Department of Defense, the Chief Defense Counsel
will, after selection of a new Detailed Defense Counsel, relieve the
original Detailed Defense Counsel of all duties with respect to that
case.
(e) Qualified Civilian Defense Counsel. (1) The Accused may, at no
expense to the United States, retain the services of a civilian attorney
of the Accused's own choosing to assist in the conduct of his defense
before a military commission, provided that the civilian attorney
retained has been determined to be qualified pursuant to 32 CFR
9.4(c)(3)(ii).
(2) Consistent with 32 CFR 9.6(b), the retention of Civilian Defense
Counsel shall not unreasonably delay military commission proceedings.
[[Page 47]]
(3) Representation by Civilian Defense Counsel will not relieve
Detailed Defense Counsel of the duties specified in 32 CFR 9.4(c)(2).
(4) Neither qualification of a Civilian Defense Counsel for
membership in the pool of available Civilian Defense Counsel nor the
entry of appearance in a specific case guarantees that counsel's
presence at closed military commission proceedings or access to
information protected under 32 CFR 9.6(d)(5).
(5) The Chief Defense Counsel shall monitor the conduct of all
qualified Civilian Defense Counsel for compliance with all rules,
regulations, and instructions governing military commissions. The Chief
Defense Counsel will report all instances of noncompliance with the
rules, regulations, and instructions governing military commissions to
the Appointing Authority and to the General Counsel of the Department of
Defense with a recommendation as to any appropriate action consistent
with 32 CFR part 9 and this part.
Sec. 13.4 Duties and responsibilities of the defense.
(a) Regular duties. The Defense shall perform all duties specified
or implied in 32 CFR part 9 as responsibilities of the Defense.
(b) Special duties. The Office of the Chief Defense Counsel shall
perform such other functions, consistent with 32 CFR part 9, and
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' and the mission
of the Office of the Chief Defense Counsel, as may be directed by the
Appointing Authority or the General Counsel of the Department of
Defense.
Sec. 13.5 Policies.
(a) Prohibition on certain agreements. No Defense Counsel may enter
into agreements with any detainee other than his client, or such
detainee's Defense Counsel, that might cause him or the client he
represents to incur an obligation of confidentiality with such other
detainee or Defense Counsel or to effect some other impediment to
representation.
(b) Prohibition on certain disclosures. All Defense Counsel must
strictly comply with 32 CFR 9.6(d)(5) and 9.9 to ensure they do not
improperly disclose classified information, national security
information, or state secrets to an Accused or potential Accused or to
any other person not specifically authorized to receive such
information.
(c) Statements to the media. Consistent with DoD Directive 5122.5
\1\, the Assistant Secretary of Defense for Public Affairs shall serve
as the sole release authority for DoD information and audiovisual
materials regarding military commissions. Personnel assigned to the
Office of the Chief Defense Counsel, as well as all members of the
Civilian Defense Counsel pool and associated personnel may communicate
with news media representatives regarding cases and other matters
related to military commissions only when approved by the Appointing
Authority or the General Counsel of the Department of Defense.
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PART 14--QUALIFICATION OF CIVILIAN DEFENSE COUNSEL--Table of Contents
Sec.
14.1 Purpose.
14.2 Authority.
14.3 Policies and procedures.
Appendix A to Part 14--United States of America Authorization for
Release of Information
Appendix B to Part 14--Affidavit and Agreement by Civilian Defense
Counsel
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39392, July 1, 2003, unless otherwise noted.
Sec. 14.1 Purpose.
This part establishes policies and procedures for the creation and
management of the pool of qualified Civilian Defense Counsel authorized
in 32 CFR 9.4 (c)(3)(ii) in accordance with Military Order of November
13, 2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,'' (3 CFR 2001 Comp., 918, 66 FR 57833).
[[Page 48]]
Sec. 14.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' and 10 U.S.C.
113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to
this part.
Sec. 14.3 Policies and procedures.
(a) Application procedures. (1) Civilian attorneys may be
prequalified as members of the pool of attorneys eligible to represent
Accused before military commissions at no expense to the United States
if, at the time of application, they meet the eligibility criteria set
forth in 32 CFR 9.4(c)(3)(ii) as further detailed in this part, or they
may be qualified on an ad hoc basis after being requested by an Accused.
In both cases, qualification results in membership in the pool of
available Civilian Defense Counsel.
(2) An attorney seeking qualification as a member of the pool of
available Civilian Defense Counsel shall submit an application, by
letter, to: Office of the General Counsel, Department of Defense, (Attn:
Chief Defense Counsel, Office of Military Commissions), 1600 Defense
Pentagon, Washington, DC 20301-1600. Applications will be comprised of
the letter requesting qualification for membership, together with the
following documents that demonstrate satisfaction of the criteria set
forth in 32 CFR 9.4(c)(3)(ii):
(i) Civilian Defense Counsel shall be United States citizens (32 CFR
9.4(c)(3)(ii)(A)). Applicants will provide proof of citizenship (e.g.,
certified true copy of passport, birth certificate, or certificate of
naturalization).
(ii) Civilian Defense Counsel shall be admitted to the practice of
law in a State, district, territory or possession of the United States,
or before a Federal court (32 CFR 9.4(c)(3)(ii)(B)). Applicants will
submit an official certificate showing that the applicant is an active
member in good standing with the bar of a qualifying jurisdiction. The
certificate must be dated within three months of the date of the Chief
Defense Counsel's receipt of the application.
(iii) Civilian Defense Counsel shall not have been the subject of
any sanction or disciplinary action by any court, bar, or other
competent governmental authority for relevant misconduct (32 CFR
9.4(c)(2)(iii)).
(A) An applicant shall submit a statement detailing all sanctions or
disciplinary actions, pending or final, to which he has been subject,
whether by a court, bar or other competent governmental authority, for
misconduct of any kind. The statement shall identify the jurisdiction or
authority that imposed the sanction or disciplinary action, together
with any explanation deemed appropriate by the applicant. Additionally,
the statement shall identify and explain any formal challenge to the
attorney's fitness to practice law, regardless of the outcome of any
subsequent proceedings. In the event that no sanction, disciplinary
action or challenge has been imposed on or made against an applicant,
the statement shall so state. Further, the applicant's statement shall
identify each jurisdiction in which he has been admitted or to which he
has applied to practice law, regardless of whether the applicant
maintains a current active license in that jurisdiction, together with
any dates of admission to or rejection by each such jurisdiction and, if
no longer active, the date of and basis for inactivation. The
information shall be submitted either in the form of a sworn notarized
statement or as a declaration under penalty of perjury of the laws of
the United States. The sworn statement or declaration must be executed
and dated within three months of the date of the Chief Defense Counsel's
receipt of the application.
(B) Further, applicants shall submit a properly executed
Authorization for Release of Information (Appendix A to this part),
authorizing the Chief Defense Counsel or his designee to obtain
information relevant to qualification of the applicant as a member of
the Civilian Defense Counsel pool from each jurisdiction in which the
applicant has been admitted or to which he has applied to practice law.
(iv) Civilian Defense Counsel shall be determined to be eligible for
access to information classified at the level SECRET or higher under the
authority of
[[Page 49]]
and in accordance with the procedures described in Department of Defense
Regulation, DoD 5200.2-R, ``Personnel Security Program.'' \1\ (32 CFR
9.4(c)(2)(iv)
(A) Civilian Defense Counsel applicants who possess a valid current
security clearance of SECRET or higher shall provide, in writing, the
date of their background investigation, the date such clearance was
granted, the level of the clearance, and the adjudicating authority.
(B) Civilian Defense Counsel applicants who do not possess a valid
current security clearance of SECRET or higher shall state in writing
their willingness to submit to a background investigation in accordance
with DoD 5200.2-R and to pay any actual costs associated with the
processing of the same. The security clearance application,
investigation, and adjudication process will not be initiated until the
applicant has submitted an application that otherwise fully complies
with this part and the Chief Defense Counsel has determined that the
applicant would otherwise be qualified for membership in the Civilian
Defense Counsel pool. Favorable adjudication of the applicant's
personnel security investigation must be completed before an applicant
will be qualified for membership in the pool of Civilian Defense
Counsel. The Chief Defense Counsel may, at his discretion, withhold
qualification and wait to initiate the security clearance process until
such time as the Civilian Defense Counsel's services are likely to be
sought.
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\1\ Available at http://www.dtic.mil/whs/directives.
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(v) Civilian Defense Counsel shall have signed a written agreement
to comply with all applicable regulations or instructions for counsel,
including any rules of court for conduct during the course of
proceedings (32 CFR 9.4(c)(2)(v)). This requirement shall be satisfied
by the execution of the Affidavit And Agreement By Civilian Defense
Counsel at Appendix B to this part. The Affidavit And Agreement By
Civilian Defense Counsel shall be executed and agreed to without change,
(i.e., no omissions, additions or substitutions). Proper execution shall
require the notarized signature of the applicant. The Affidavit And
Agreement By Civilian Defense Counsel shall be dated within three months
of the date of the Chief Defense Counsel's receipt of the application.
(3) Applications mailed in a franked U.S. Government envelope or
received through U.S. Government distribution will not be considered.
Telefaxed or electronic mail application materials will not be accepted.
Failure to provide all of the requisite information and documentation
may result in rejection of the application. A false statement in any
part of the application may preclude qualification and/or render the
applicant liable for disciplinary or criminal sanction, including under
18 U.S.C. 1001.
(b) Application review. (1) The Chief Defense Counsel or his
designee shall review all Civilian Defense Counsel pool applications for
compliance with 32 CFR part 9 and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' and with this part.
(2) The Chief Defense Counsel shall consider all applicants for
qualification as members of the Civilian Defense Counsel pool without
regard to race, religion, color, sex, age, national origin, or other
non-disqualifying physical or mental disability.
(3) The Chief Defense Counsel may reject any Civilian Defense
Counsel application that is incomplete or otherwise fails to comply with
32 CFR part 9 and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' or with this part.
(4) Subject to review by the General Counsel of the Department of
Defense, the Chief Defense Counsel shall determine the number of
qualified attorneys that shall constitute the pool of available Civilian
Defense Counsel. Similarly, subject to review by the General Counsel of
the Department of Defense, the Chief Defense Counsel shall determine the
qualification of applicants for membership in such pool. This shall
include determinations as to whether any sanction, disciplinary action,
or
[[Page 50]]
challenge is related to relevant misconduct that would disqualify the
Civilian Defense Counsel applicant.
(5) The Chief Defense Counsel's determination as to each applicant's
qualification for membership in the pool of qualified Civilian Defense
Counsel shall be deemed effective as of the date of the Chief Defense
Counsel's written notification publishing such determination to the
applicant. Subsequent to this notification, the retention of qualified
Civilian Defense Counsel is effected upon written entry of appearance,
communicated to the military commission through the Chief Defense
Counsel.
(6) The Chief Defense Counsel may reconsider his determination as to
an individual's qualification as a member of the Civilian Defense
Counsel pool on the basis of subsequently discovered information
indicating material nondisclosure or misrepresentation in the
application, or material violation of obligations of the Civilian
Defense Counsel, or other good cause, or the matter may be referred to
the Appointing Authority or the General Counsel of the Department of
Defense, who may revoke or suspend the qualification of any member of
the Civilian Defense Counsel pool.
Appendix A to Part 14--United States of America Authorization for
Release of Information
United States of America
Authorization for Release of Information
(Carefully read this authorization to release information about you,
then sign and date it in ink.)
I authorize the Chief Defense Counsel, Office of Military
Commissions, Department of Defense, his designee or other duly
authorized representative of the Department of Defense who may be
charged with assessing or determining my qualification for membership in
the pool of Civilian Defense Counsel available to represent Accused
before military commissions, to obtain any information from any court,
the bar of any State, locality, district, territory or possession of the
United States, or from any other governmental authority.
This information may include, but is not limited to, information
relating to: Any application for a security clearance; my admission or
application for admission to practice law in any jurisdiction, including
action by the jurisdiction upon such application, together with my
current status with regard to the practice of law in such jurisdiction;
any sanction or disciplinary action to which I have been subject for
misconduct of any kind; and any formal challenge to my fitness to
practice law, regardless of the outcome of subsequent proceedings.
I authorize custodians of such records or information and other
sources of information pertaining to me to release such at the request
of the officials named above, regardless of any previous agreement to
the contrary.
I understand that for certain custodians or sources of information a
separate specific release may be required and that I may be contacted
for the purposes of executing such at a later date.
I understand that the records or information released by custodians
and other sources of information are for official use by the Department
of Defense, only for the purposes provided herein, and that they may be
redisclosed by the Department of Defense only as authorized by law.
Copies of this authorization that show my signature are as valid as
the original signed by me. This authorization is valid for five (5)
years from the date signed or upon termination of my affiliation with
the Department of Defense, whichever is later.
________________________________________________________________________
Signature (sign in ink) SSN
________________________________________________________________________
Date
Appendix B to Part 14--Affidavit and Agreement by Civilian Defense
Counsel
Affidavit and Agreement by Civilian Defense Counsel
Pursuant to Section 4(C)(3)(b) of Department of Defense Military
Commission Order No. 1, ``Procedures for Trials by Military Commissions
of Certain Non-United States Citizens in the War Against Terrorism,''
dated March 21, 2002 (``MCO No. 1''), Military Commission Instructions
No. 4, ``Responsibilities of the Chief Defense Counsel, Detailed Defense
Counsel, and Civilian Defense Counsel'' (``MCI No. 4'') and No. 5,
``Qualification of Civilian Defense Counsel'' (``MCI No. 5''), and in
accordance with the President's Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' 66 FR 57833 (Nov. 16, 2001) (``President's Military
Order''), I [Name of Civilian Attorney], make this Affidavit and
Agreement for the purposes of applying for qualification as a member of
the pool of Civilian Defense Counsel available to represent Accused
before military commissions and serving in that capacity.
[[Page 51]]
I. Oaths or Affirmations. I swear or affirm that the following
information is true to the best of my knowledge and belief:
A. I have read and understand the President's Military Order, MCO
No. 1, MCI No. 4, MCI No. 5, and all other Military Commission Orders
and Instructions concerning the rules, regulations and instructions
applicable to trial by military commissions. I will read all future
Orders and Instructions applicable to trials by military commissions.
B. I am aware that my qualification as a Civilian Defense Counsel
does not guarantee my presence at closed military commission proceedings
or guarantee my access to any information protected under Section
6(D)(5) or Section 9 of MCO No. 1.
II. Agreements. I hereby agree to comply with all applicable
regulations and instructions for counsel, including any rules of court
for conduct during the course of proceedings, and specifically agree,
without limitation, to the following:
A. I will notify the Chief Defense Counsel and, as applicable, the
relevant Presiding Officer immediately if, after the execution of this
Affidavit and Agreement but prior to the conclusion of proceedings
(defined as the review and final decision of the President or, if
designated, the Secretary of Defense), if there is any change in any of
the information provided in my application, including this Affidavit and
Agreement, for qualification as member of the Civilian Defense Counsel
pool. I understand that such notification shall be in writing and shall
set forth the substantive nature of the changed information.
B. I will be well-prepared and will conduct the defense zealously,
representing the Accused throughout the military commission process,
from the inception of my representation through the completion of any
post trial proceedings as detailed in Section 6(H) of MCO No. 1. I will
ensure that these proceedings are my primary duty. I will not seek to
delay or to continue the proceedings for reasons relating to matters
that arise in the course of my law practice or other professional or
personal activities that are not related to military commission
proceedings.
C. The Defense Team shall consist entirely of myself, Detailed
Defense Counsel, and other personnel provided by the Chief Defense
Counsel, the Presiding Officer, or the Appointing Authority. I will make
no claim against the U.S. Government for any fees or costs associated
with my conduct of the defense or related activities or efforts.
D. Recognizing that my representation does not relieve Detailed
Defense Counsel of duties specified in Section 4(C)(2) of MCO No. 1, I
will work cooperatively with such counsel to ensure coordination of
efforts and to ensure such counsel is capable of conducting the defense
independently if necessary.
E. During the pendency of the proceedings, unless I obtain approval
in advance from the Presiding Officer to do otherwise, I will comply
with the following restrictions on my travel and communications:
1. I will not travel or transmit documents from the site of the
proceedings without the approval of the Appointing Authority or the
Presiding Officer. The Defense Team and I will otherwise perform all of
our work relating to the proceedings, including any electronic or other
research, at the site of the proceedings (except that this shall not
apply during post-trial proceedings detailed in Section 6(H) of MCO No.
1).
2. I will not discuss or otherwise communicate or share documents or
information about the case with anyone except persons who have been
designated as members of the Defense Team in accordance with this
Affidavit and Agreement and other applicable rules, regulations and
instructions.
F. At no time, to include any period subsequent to the conclusion of
the proceedings, will I make any public or private statements regarding
any closed sessions of the proceedings or any classified information or
material, or document or material constituting protected information
under MCO No. 1.
G. I understand and agree to comply with all rules, regulations and
instructions governing the handling of classified information and
material. Furthermore, no document or material constituting protected
information under MCO No. 1, regardless of its classification level, may
leave the site of the proceedings.
H. I understand that there may be reasonable restrictions on the
time and duration of contact I may have with my client, as imposed by
the Appointing Authority, the Presiding Officer, detention authorities,
or regulation.
I. I understand that my communications with my client, even if
traditionally covered by the attorney-client privilege, may be subject
to monitoring or review by government officials, using any available
means, for security and intelligence purposes. I understand that any
such monitoring will only take place in limited circumstances when
approved by proper authority, and that any evidence or information
derived from such communications will not be used in proceedings against
the Accused who made or received the relevant communication. I further
understand that communications are not protected if they would
facilitate criminal acts or a conspiracy to commit criminal acts, or if
those communications are not related to the seeking or providing of
legal advice.
J. I agree that I shall reveal to the Chief Defense Counsel and any
other appropriate authorities, information relating to the
representation of my client to the extent that I reasonably believe
necessary to prevent the
[[Page 52]]
commission of a future criminal act that I believe is likely to result
in death or substantial bodily harm, or significant impairment of
national security.
K. I understand and agree that nothing in this Affidavit and
Agreement creates any substantive, procedural, or other rights for me as
counsel or for my client(s).
/s/____________________________________________________________________
Print Name:____________________________________________________________
Address:_______________________________________________________________
Date:__________________________________________________________________
State of )
County of )
Sworn to and subscribed before me, by ----------, this ---- day of
--------, 20----.
Notary
My commission expires:_________________________________________________
PART 15--REPORTING RELATIONSHIPS FOR MILITARY COMMISSION PERSONNEL--Table of
Contents
Sec.
15.1 Purpose.
15.2 Authority.
15.3 Policies and procedures.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39395, July 1, 2003, unless otherwise noted.
Sec. 15.1 Purpose.
This part establishes supervisory and performance evaluation
relationships for military commission personnel.
Sec. 15.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR 2001
Comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The
provisions of 32 CFR part 10 are applicable to this part.
Sec. 15.3 Policies and Procedures.
(a) Supervisory and performance evaluation relationships.
Individuals appointed, assigned, detailed, designated or employed in a
capacity related to the conduct of military commission proceedings
conducted in accordance with 32 CFR part 9 and Military Order of
November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' shall be subject to the
relationships set forth in paragraphs (a)(1) through (a)(9) of this
section. Unless stated otherwise, the person to whom an individual
``reports,'' as set forth in paragraphs (a)(1) through (a)(9) of this
section, shall be deemed to be such individual's supervisor and shall,
to the extent possible, fulfill all performance evaluation
responsibilities normally associated with the function of direct
supervisor in accordance with the subordinate's Military Service
performance evaluation regulations.
(1) Appointing Authority: Any Appointing Authority designated by the
Secretary of Defense pursuant to 32 CFR part 9 shall report to the
Secretary of Defense in accordance with 10 U.S.C. 113(d).
(2) Legal Advisor to Appointing Authority: The Legal Advisor to the
Appointing Authority shall report to the Appointing Authority.
(3) Chief Prosecutor: The Chief Prosecutor shall report to the
Deputy General Counsel (Legal Counsel) of the Department of Defense and
then to the General Counsel of the Department of Defense.
(4) Prosecutors and Assistant Prosecutors: Prosecutors and Assistant
Prosecutors shall report to the Chief Prosecutor and then to the Deputy
General Counsel (Legal Counsel) of the Department of Defense.
(5) Chief Defense Counsel: The Chief Defense Counsel shall report to
the Deputy General Counsel (Personnel and Health Policy) of the
Department of Defense and then to the General Counsel of the Department
of Defense.
(6) Detailed Defense Counsel: Detailed Defense Counsel shall report
to the Chief Defense Counsel and then to the Deputy General Counsel
(Personnel and Health Policy) of the Department of Defense.
(7) Review Panel members: Members of the Review Panel shall report
to the Secretary of Defense.
(8) Commission members: Commission members shall continue to report
to their parent commands. The consideration or evaluation of the
performance of duty as a member of a military commission is prohibited
in preparing effectiveness, fitness, or evaluation reports of a
commission member.
[[Page 53]]
(9) Other personnel: All other military commission personnel, such
as court reporters, interpreters, security personnel, bailiffs, and
clerks detailed or employed by the Appointing Authority pursuant to 32
CFR 9.4(d), if not assigned to the Office of the Chief Prosecutor or the
Office of the Chief Defense Counsel, shall report to the Appointing
Authority or his designee.
(b) Responsibilities of supervisory/reporting officials. Officials
designated in this part as supervisory/reporting officials shall:
(1) Supervise subordinates in the performance of their duties.
(2) Prepare fitness or performance evaluation reports and, as
appropriate, process awards and citations for subordinates. To the
extent practicable, a reporting official shall comply with the rated
subordinate's Military Service regulations regarding the preparation of
fitness or performance evaluation reports and in executing related
duties.
PART 16--SENTENCING--Table of Contents
Sec.
16.1 Purpose.
16.2 Authority.
16.3 Available sentences.
16.4 Sentencing procedures.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39396, July 1, 2003, unless otherwise noted.
Sec. 16.1 Purpose.
This part promulgates policy, assigns responsibilities, and
prescribes procedures for matters related to sentencing of persons with
regard to whom a finding of guilty is entered for an offense referred
for trial by a military commission appointed pursuant to 32 CFR part 9
and Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism'' (3 CFR 2001
Comp., p. 918, 66 FR 57833).
Sec. 16.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' and 10 U.S.C.
113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to
this part.
Sec. 16.3 Available sentences.
(a) General. 32 CFR part 9 permits a military commission wide
latitude in sentencing. Any lawful punishment or condition of punishment
is authorized, including death, so long as the prerequisites detailed in
32 CFR part 9 are met. Detention associated with an individual's status
as an enemy combatant shall not be considered to fulfill any term of
imprisonment imposed by a military commission. The sentence
determination should be made while bearing in mind that there are
several principal reasons for a sentence given to those who violate the
law. Such reasons include: punishment of the wrongdoer; protection of
society from the wrongdoer; deterrence of the wrongdoer and those who
know of his crimes and sentence from committing the same or similar
offenses; and rehabilitation of the wrongdoer. In determining an
appropriate sentence, the weight to be accorded any or all of these
reasons rests solely within the discretion of commission members. All
sentences should, however, be grounded in a recognition that military
commissions are a function of the President's war-fighting role as
Commander-in-Chief of the Armed Forces of the United States and of the
broad deterrent impact associated with a sentence's effect on adherence
to the laws and customs of war in general.
(b) Conditions of imprisonment. Decisions regarding the location
designated for any imprisonment, the conditions under which a sentence
to imprisonment is served, or the privileges accorded one during any
period of imprisonment should generally not be made by the commission.
Those decisions and actions, however, may be appropriate subjects for
recommendation to the person making a final decision on the sentence in
accordance with of 32 CFR 9.6(h).
(c) Prospective recommendations for sentence modification. A
sentence imposed by military commission may be accompanied by a
recommendation to suspend, remit, commute or otherwise modify the
adjudged sentence in concert with one or more conditions upon
[[Page 54]]
which the suspension, remission, commutation, or other modification is
contingent (usually relating to the performance, behavior or conduct of
the Accused). Unless otherwise directed, a decision or action in
accordance with such a recommendation will be effected by direction or
delegation to the Appointing Authority by the official making a final
decision on the sentence in accordance with of 32 CFR 9.6(h).
Sec. 16.4 Sentencing procedures.
(a) General. 32 CFR part 9 permits the military commission
substantial discretion regarding the conduct of sentencing proceedings.
Sentencing proceedings should normally proceed expeditiously. In the
discretion of the Presiding Officer, as limited by the Appointing
Authority, reasonable delay between the announcement of findings and the
commencement of sentencing proceedings may be authorized to facilitate
the conduct of proceedings in accordance with of 32 CFR 9.6(b).
(b) Information relevant to sentencing. 32 CFR 9.6(e)(10) permits
the Prosecution and Defense to present information to aid the military
commission in determining an appropriate sentence. Such information may
include a recommendation of an appropriate sentence, information
regarding sentence ranges for analogous offenses (e.g., the sentencing
range under the Federal Sentencing Guidelines that could be applicable
to the Accused for the most analogous federal offenses), and other
relevant information. Regardless of any presentation by the Prosecution
or Defense, the military commission shall consider any evidence admitted
for consideration prior to findings regarding guilt. The Presiding
Officer may limit or require the presentation of certain information
consistent with 32 CFR part 9 and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism'.
(c) Cases involving plea agreements. In accordance with 32 CFR
9.6(a)(4), after determining the voluntary and informed nature of a plea
agreement approved by the Appointing Authority, the military commission
is bound to adjudge findings and a sentence pursuant to that plea
agreement. Accordingly, the Presiding Officer may exercise the authority
granted in of 32 CFR 9.6(e) to curtail or preclude the presentation of
information and argument relative to the military commission's
determination of an appropriate sentence.
(d) Special duties. In cases involving plea agreements or
recommendations for certain conditions of imprisonment or prospective
sentence modification, the Prosecution and Defense shall provide
whatever post-trial information or recommendation as is relevant to any
subsequent decision regarding such condition or suspension, remission,
commutation, or other modification recommendation associated with the
sentence.
PART 17--ADMINISTRATIVE PROCEDURES--Table of Contents
Sec.
17.1 Purpose.
17.2 Authority.
17.3 Commission personnel.
17.4 Interlocutory questions.
17.5 Implied duties of the presiding officer.
17.6 Disclosures.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39397, July 1, 2003, unless otherwise noted.
Sec. 17.1 Purpose.
This part promulgates policy, assigns responsibilities, and
prescribes procedures for the conduct of trials by a military commission
appointed pursuant to 32 CFR part 9 and Military Order of November 13,
2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism,'' (3 CFR 2001 Comp., p. 918, 66 FR 57833).
Sec. 17.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' and 10 U.S.C.
113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to
this part.
Sec. 17.3 Commission personnel.
(a) Appointment and removal of Commission members. (1) In accordance
with
[[Page 55]]
32 CFR part 9, the Appointing Authority shall appoint at least three but
no more than seven members and one or two alternate members. The
Appointing Authority may remove members and alternate members for good
cause. In the event a member (or alternate member) is removed for good
cause, the Appointing Authority may replace the member, direct that an
alternate member serve in the place of the original member, direct that
proceedings simply continue without the member, or convene a new
commission. In the absence of guidance from the Appointing Authority
regarding replacement, the Presiding Officer shall select an alternate
member to replace the member in question.
(2) The Presiding Officer shall determine if it is necessary to
conduct or permit questioning of members (including the Presiding
Officer) on issues of whether there is good cause for their removal. The
Presiding Officer may permit questioning in any manner he deems
appropriate. Consistent with 32 CFR part 9, any such questioning shall
be narrowly focused on issues pertaining to whether good cause may exist
for the removal of any member.
(3) From time to time, it may be appropriate for a Presiding Officer
to forward to the Appointing Authority information and, if appropriate,
a recommendation relevant to the question of whether a member (including
the Presiding Officer) should be removed for good cause. While awaiting
the Appointing Authority's decision on such matter, the Presiding
Officer may elect either to hold proceedings in abeyance or to continue.
The Presiding Officer may issue any appropriate instructions to the
member whose continued service is in question. A military commission
shall not engage in deliberations on findings or sentence prior to the
Appointing Authority's decision in any case in which the Presiding
Officer has recommended a member's removal.
(b) Military commission security officer. The Appointing Authority
may detail a Security Officer to advise a military commission on matters
related to classified and protected information. In addition to any
other duties assigned by the Appointing Authority, the Security Officer
shall ensure that all classified or protected evidence and information
is appropriately safeguarded at all times and that only personnel with
the appropriate clearances and authorizations are present when
classified or protected materials are presented before military
commissions.
(c) Other military commission personnel. The Appointing Authority
may detail court reporters, interpreters, security personnel, bailiffs,
clerks, and any other personnel to a military commission as deemed
necessary. In the absence of a detailing by the Appointing Authority,
the Chief Prosecutor shall be responsible to ensure the availability of
necessary or appropriate personnel to facilitate the impartial and
expeditious conduct of full and fair trials by military commission.
Sec. 17.4 Interlocutory questions.
(a) Certification of interlocutory questions. The Presiding Officer
shall generally adjudicate all motions and questions that arise during
the course of a trial by military commission. In accordance with 32 CFR
9.4(a)(5)(iv), however, the Presiding Officer shall certify all
interlocutory questions, the disposition of which would effect a
termination of proceedings with respect to a charge, for decision by the
Appointing Authority. In addition, the Presiding Officer may certify
other interlocutory questions to the Appointing Authority as the
Presiding Officer deems appropriate.
(b) Submission of interlocutory questions. The Presiding Officer
shall determine what, if any, documentary or other materials should be
forwarded to the Appointing Authority in conjunction with an
interlocutory question.
(c) Effect of interlocutory question certification on proceedings.
While decision by the Appointing Authority is pending on any certified
interlocutory question, the Presiding Officer may elect either to hold
proceedings in abeyance or to continue.
Sec. 17.5 Implied duties of the presiding officer.
The Presiding Officer shall ensure the execution of all ancillary
functions necessary for the impartial and expeditious conduct of a full
and fair trial by military commission in accordance
[[Page 56]]
with 32 CFR part 9. Such functions include, for example, scheduling the
time and place of convening of a military commission, ensuring that an
oath or affirmation is administered to witnesses and military commission
personnel as appropriate, conducting appropriate in camera meetings to
facilitate efficient trial proceedings, and providing necessary
instructions to other commission members. The Presiding Officer shall
rule on appropriate motions or, at his discretion consistent with 32 CFR
part 9, may submit them to the commission for decision or to the
Appointing Authority as a certified interlocutory question.
Sec. 17.6 Disclosures.
(a) General. Unless directed otherwise by the Presiding Officer upon
a showing of good cause or for some other reason, counsel for the
Prosecution and the Defense shall provide to opposing counsel, at least
one week prior to the scheduled convening of a military commission,
copies of all information intended for presentation as evidence at
trial, copies of all motions the party intends to raise before the
military commission, and names and contact information of all witnesses
a party intends to call. Motions shall also be provided to the Presiding
Officer at the time they are provided to opposing counsel. Unless
directed otherwise by the Presiding Officer, written responses to any
motions will be provided to opposing counsel and the Presiding Officer
no later than three days prior to the scheduled convening of a military
commission.
(b) Notifications by the prosecution. The Prosecution shall provide
the Defense with access to evidence known to the Prosecution that tends
to exculpate the Accused as soon as practicable, and in no instance
later than one week prior to the scheduled convening of a military
commission.
(c) Notifications by the defense. The Defense shall give notice to
the Prosecution of any intent to raise an affirmative defense to any
charge at least one week prior to the scheduled convening of a military
commission.
(d) Evidence related to mental responsibility. If the Defense
indicates an intent to raise a defense of lack of mental responsibility
or introduce expert testimony regarding an Accused's mental condition,
the prosecution may require that the Accused submit to a mental
examination by a military psychologist or psychiatrist, and both parties
shall have access to the results of that examination.
PARTS 18-20 [RESERVED]
[[Page 57]]
SUBCHAPTER C--DoD GRANT AND AGREEMENT REGULATIONS
PART 21--DoD GRANTS AND AGREEMENTS--GENERAL MATTERS--Table of Contents
Subpart A--Defense Grant and Agreement Regulatory System
Sec.
21.100 Scope.
21.105 Authority, purpose, and issuance.
21.110 Applicability and relationship to acquisition regulations.
21.115 Compliance and implementation.
21.120 Publication and maintenance.
21.125 Deviations.
21.130 Definitions.
Subpart B--Authorities and Responsibilities
21.200 Purpose.
21.205 DoD Components' authorities.
21.210 Vesting and delegation of authority.
21.215 Contracting activities.
21.220 Grants officers.
Subpart C--Information Reporting on Grants, Cooperative Agreements, and
Other Nonprocurement Instruments
21.300 Purpose.
21.305 Defense Assistance Awards Data System.
21.310 Catalog of Federal Domestic Assistance.
21.315 Uniform grants and agreements numbering system.
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Source: 63 FR 12160, Mar. 12, 1998, unless otherwise noted.
Subpart A--Defense Grant and Agreement Regulatory System
Sec. 21.100 Scope.
The purposes of this part, which is one portion of the DoD Grant and
Agreement Regulations (DoDGARs), are to:
(a) Provide general information about the DoDGARs.
(b) Set forth general policies and procedures related to DoD
Components' overall management of functions related to grants and
cooperative agreements.
Sec. 21.105 Authority, purpose, and issuance.
(a) DoD Directive 3210.6\1\ 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 DGARS.
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\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.
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(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 Components, 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 agreements.
(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.
Sec. 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 agreements.
[[Page 58]]
(b) Applicability to other nonprocurement 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 Governmentwide rule
that applies to other nonprocurement instruments, as well as to grants
and cooperative agreements. 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 agreements, 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 agreements, but also to other types of
nonprocurement instruments:
(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 governments, 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 instruments.
However, grants officers must exercise caution when determining the
applicability of some Governmentwide 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
Governmentwide 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 agreements 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 agreements, or other
nonprocurement transactions unless the DoDGARs specify that they apply.
Sec. 21.115 Compliance and implementation.
The Head of each DoD Component that awards or administers grants 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 costs
or administrative burdens on recipients or potential recipients. Heads
of DoD Components or their designees shall establish policies and
procedures in areas where uniform policies and procedures throughout the
DoD Component are required, such as for:
(1) Requesting class deviations from the DoDGARs (see Sec. 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 assistance awards and programs, as required by
31 U.S.C. chapter 61 (see subpart C of this part).
[[Page 59]]
(4) Prescribing requirements for use and disposition of real
property acquired 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).
Sec. 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 Sec. 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 agreements may also nominate representatives. The
working group meets when necessary.
Sec. 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) Class 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 designee. 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 requests 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 class
deviations shall be maintained in award files.
Sec. 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
instruments for acquiring 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
agreements are examples of legal instruments used to provide assistance.
Contract. See the definition for procurement contract in this
section.
Contracting 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 contracts 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
agreements'' as defined in 15 U.S.C. 3710a.
Deviation. The issuance or use of a policy or procedure that is
inconsistent with the DoDGARs.
[[Page 60]]
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 or
use.
(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 agreements.
Nonprocurement instrument. A legal instrument other than a
procurement contract. Examples include instruments 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.
Subpart B--Authorities and Responsibilities
Sec. 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
instruments.
Sec. 21.205 DoD Components' authorities.
(a) In accordance with 31 U.S.C. 6301 et seq., DoD Components shall
use grants and cooperative agreements as legal instruments reflecting
assistance 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 Components may award grants
and cooperative agreements 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 agreements to assist State and local governments in planning
and carrying out community adjustments 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
Components. 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 assistance, use of that authority requires no
delegation by the Secretary of Defense. For example, 10 U.S.C. 2358
authorizes the Secretaries
[[Page 61]]
of the Military Departments, in addition to the Secretary of Defense, to
perform research and development projects through grants and cooperative
agreements. A Military Department's use of the authority of 10 U.S.C.
2358 therefore requires no delegation by the Secretary of Defense.
(3) Authorities that arise indirectly as the result of statute. For
example, authority to use a grant or cooperative agreement may result
from:
(i) A federal statute authorizing a program that is consistent with
an assistance relationship (i.e., the support or stimulation of a public
purpose, rather than the acquisition of a good or service for the direct
benefit of the Department of Defense). In accordance with 31 U.S.C.
chapter 63, such a program would appropriately be carried out through
the use of grants or cooperative agreements.
(ii) Exemptions requested by the Department of Defense and granted
by the Office of Management and Budget under 31 U.S.C. 6307, as
described in 32 CFR 22.220.
Sec. 21.210 Vesting and delegation of authority.
(a) The authority and responsibility for awarding grants and
cooperative agreements is vested in the Head of each DoD Component that
has such authority.
(b) The Head of each such DoD Component, or his or her designee, may
delegate to the heads of contracting activities (HCAs) within that
Component, authority to award grants or cooperative agreements, to
appoint grants officers (see Sec. 21.220(c)), and to broadly manage the
DoD Component's functions related to grants and cooperative agreements.
An HCA is the same official (or officials) designated as the head of the
contracting activity for procurement contracts, as defined at 48 CFR
2.101--the intent is that overall management responsibilities for a DoD
Component's functions related to nonprocurement instruments be assigned
only to officials that have similar responsibilities for procurement
contracts.
Sec. 21.215 Contracting activities.
When designated by the Head of the DoD Component or his or her
designee (see 32 CFR 21.210(b)), the HCA is responsible for the grants
and cooperative agreements made by or assigned to that activity. He or
she shall supervise and establish internal policies and procedures for
that activity's assistance awards.
Sec. 21.220 Grants officers.
(a) Authority. Only grants officers are authorized to sign grants or
cooperative agreements, or to administer or terminate such legal
instruments on behalf of the Department of Defense. Grants officers may
bind the Government only to the extent of the authority delegated to
them.
(b) Responsibilities. Grants officers should be allowed wide
latitude to exercise judgment in performing their responsibilities.
Grants officers are responsible for ensuring that:
(1) Individual grants and cooperative agreements are used
effectively in the execution of DoD programs, and are awarded and
administered in accordance with applicable laws, Executive orders,
regulations, and DoD policies.
(2) Sufficient funds are available for obligation.
(3) Recipients of grants and cooperative agreements receive
impartial, fair, and equitable treatment.
(c) Selection, appointment and termination of appointment of grants
officers. Each DoD Component that awards grants or enters into
cooperative agreements shall have a formal process (see Sec. 21.210(b))
to select and appoint grants officers and terminate their appointments.
DoD Components are not required to maintain a selection process for
grants officers separate from the selection process for contracting
officers, and written statements of appointment or termination for
grants officers may be integrated into the necessary documentation for
contracting officers, as appropriate.
(1) Selection. In selecting grants officers, appointing officials
shall consider the complexity and dollar value of the grants and
cooperative agreements to
[[Page 62]]
be assigned and judge whether candidates possess the necessary
experience, training, education, business acumen, judgment, and
knowledge of contracts and assistance instruments to function
effectively as grants officers.
(2) Appointment. Statements of appointment shall be in writing and
shall clearly state the limits of grants officers' authority, other than
limits contained in applicable laws or regulations. Information on the
limits of a grants officer's authority shall be readily available to the
public and agency personnel.
(3) Termination. Written statements of termination are required,
unless the written statement of appointment provides for automatic
termination. No termination shall be retroactive.
Subpart C--Information Reporting on Grants, Cooperative Agreements, and
Other Nonprocurement Instruments
Sec. 21.300 Purpose.
This subpart prescribes policies and procedures for compiling and
reporting data related to grants, cooperative agreements, and other
nonprocurement instruments subject to information reporting requirements
of 31 U.S.C. chapter 61.
Sec. 21.305 Defense Assistance Awards Data System.
(a) Purposes of the system. Data from the Defense Assistance Awards
Data System (DAADS) are used to provide:
(1) DoD inputs to meet statutory requirements for Federal
Governmentwide reporting of data related to obligations of funds by
grant, cooperative agreement, or other nonprocurement instrument.
(2) A basis for meeting Governmentwide requirements to report to the
Federal Assistance Awards Data System maintained by the Department of
Commerce and for preparing other recurring and special reports to the
President, the Congress, the General Accounting Office, and the public.
(3) Information to support policy formulation and implementation and
to meet management oversight requirements related to the use of grants,
cooperative agreements, and other nonprocurement instruments.
(b) Responsibilities. (1) The Deputy Director, Defense Research and
Engineering (DDDR&E), or his or her designee, shall issue the manual
described in paragraph (b)(2)(ii) of this section.
(2) The Director for Information Operations and Reports, Washington
Headquarters Services (DIOR, WHS) shall, consistent with guidance issued
by the DDDR&E:
(i) Process DAADS information on a quarterly basis and prepare
recurring and special reports using such information.
(ii) Prepare, update, and disseminate ``Department of Defense
Assistance Awards Data System,'' an instruction manual for reporting
information to DAADS. The manual, which shall be issued by the office of
the DDR&E, shall specify procedures, formats, and editing processes to
be used by DoD Components, including magnetic tape layout and error
correction schedules.
(3) The following offices shall serve as central points for
collecting DAADS information from contracting activities within the DoD
Components:
(i) For the Army: As directed by the U.S. Army Contracting Support
Agency.
(ii) For the Navy: As directed by the Office of Naval Research.
(iii) For the Air Force: As directed by SAF/AQCP.
(iv) For the Office of the Secretary of Defense, Defense Agencies,
and DoD Field Activities: Each Defense Agency shall identify a central
point for collecting and reporting DAADS information to the DIOR, WHS,
at the address given in paragraph (c)(2) of this section. DIOR, WHS
shall serve as the central point for offices and activities within the
Office of the Secretary of Defense and for DoD Field Activities.
(4) The office that serves, in accordance with paragraph (b)(3) of
this section, as the central point for collecting DAADS information from
contracting activities within each DoD Component shall:
(i) Establish internal procedures to ensure reporting by contracting
activities that use grants, cooperative agreements or other
nonprocurement instruments subject to 31 U.S.C. chapter 61.
[[Page 63]]
(ii) Collect information required by DD Form 2566, ``DoD Assistance
Award Action Report,'' from those contracting activities, and report it
to DIOR, WHS, in accordance with paragraph (d) of this section.
(iii) Submit to the DDDR&E, at the address given in Sec. 21.125(c),
any recommended changes to the DAADS or to the instruction manual
described in paragraph (b)(2)(ii) of this section.
(c) Reporting procedures. The data required by the DD Form 2566
shall be:
(1) Collected for each individual grant, cooperative agreement, or
other nonprocurement action that is subject to 31 U.S.C. chapter 61 and
involves the obligation or deobligation of Federal funds. Each action is
reported as an obligation under a specific program listed in the Catalog
of Federal Domestic Assistance (CFDA, see Sec. 21.310). The program to
be shown is the one that provided the funds being obligated (i.e., if a
grants officer in one DoD Component obligates appropriations of a second
DoD Component's program, the grants officer would show the CFDA program
of the second DoD Component on the DD Form 2566).
(2) Reported on a quarterly basis to DIOR, WHS by the offices that
are designated pursuant to paragraph (b)(3) of this section. For the
first three quarters of the Federal fiscal year, the data are due by
close-of-business (COB) on the 15th day after the end of the quarter
(i.e., first-quarter data are due by COB on January 15th, second-quarter
data by COB April 15th, and third-quarter data by COB July 15th).
Fourth-quarter data are due by COB October 25th, the 25th day after the
end of the quarter. If any due date falls on a weekend or holiday, the
data are due on the next regular workday. The mailing address for DIOR,
WHS is 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-
4302.
(3) Reported on a computer tape, floppy diskette or by other means
permitted by the instruction manual described in paragraph (b)(2)(ii) of
this section. The data shall be reported in the format specified in the
instruction manual.
(d) Report control symbol. DoD Components' reporting of DAADS data
is used by DoD to satisfy Governmentwide requirements to report to the
Federal Assistance Awards Data System, which is assigned Interagency
Report Control Number 0252-DOC-QU.
Sec. 21.310 Catalog of Federal Domestic Assistance.
(a) Purpose and scope of the reporting requirement. (1) Under the
Federal Program Information Act (31 U.S.C. 6101 et seq.), as implemented
through OMB Circular A-89,\2\ the Department of Defense is required to
provide certain information about its domestic assistance programs to
OMB and the General Services Administration (GSA). GSA makes this
information available to the public by publishing it in the Catalog of
Federal Domestic Assistance (CFDA) and maintaining the Federal
Assistance Programs Retrieval System, a computerized data base of the
information.
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\2\ Contact the Office of Management and Budget, EOP Publications,
725 17th St. N.W., New Executive Office Building, Washington, D.C.
20503.
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(2) The CFDA covers all domestic assistance programs and activities,
regardless of the number of awards made under the program, the total
dollar value of assistance provided, or the duration. In addition to
programs using grants and cooperative agreements, covered programs
include those providing assistance in other forms, such as payments in
lieu of taxes or indirect assistance resulting from Federal operations.
(b) Responsibilities. (1) Each DoD Component that provides domestic
financial assistance shall:
(i) Report to the Director for Information Operations and Reports,
Washington Headquarters Services (DIOR, WHS) all new programs and
changes as they occur, or as DIOR, WHS requests annual updates to
existing CFDA information.
(ii) Identify to the DIOR, WHS a point-of-contact who will be
responsible for reporting such program information and for responding to
inquiries related to it.
(2) The DIOR, WHS shall act as the Department of Defense's single
office for collecting, compiling and reporting
[[Page 64]]
such program information to OMB and GSA.
Sec. 21.315 Uniform grants and agreements numbering system.
DoD Components shall assign identifying numbers to all
nonprocurement instruments subject to this subpart, including grants and
cooperative agreements. The numbering system parallels the procurement
instrument identification (PII) numbering system specified in 48 CFR
204.70 (in the ``Defense Federal Acquisition Regulation Supplement''),
as follows:
(a) The first six alphanumeric characters of the assigned number
shall be identical to those specified by 48 CFR 204.7003(a)(1) to
identify the DoD Component and contracting activity.
(b) The seventh and eighth positions shall be the last two digits of
the fiscal year in which the number is assigned to the grant,
cooperative agreement, or other nonprocurement instrument.
(c) The 9th position shall be a number: ``1'' for grants; ``2'' for
cooperative agreements; and ``3'' for other nonprocurement instruments.
(d) The 10th through 13th positions shall be the serial number of
the instrument. DoD Components and contracting activities need not
follow any specific pattern in assigning these numbers and may create
multiple series of letters and numbers to meet internal needs for
distinguishing between various sets of awards.
PART 22--DoD GRANTS AND AGREEMENTS--AWARD AND ADMINISTRATION--Table of
Contents
Subpart A--General
Sec.
22.100 Purpose, relation to other parts, and organization.
22.105 Definitions.
Subpart B--Selecting the Appropriate Instrument
22.200 Purpose.
22.205 Distinguishing assistance from procurement.
22.210 Authority for providing assistance.
22.215 Distinguishing grants and cooperative agreements.
22.220 Exemptions.
Subpart C--Competition
22.300 Purpose.
22.305 General policy and requirement for competition.
22.310 Statutes concerning certain research, development, and
facilities construction grants.
22.315 Merit-based, competitive procedures.
22.320 Special competitions.
22.325 Historically Black colleges and universities (HBCUs) and other
minority institutions (MIs).
Subpart D--Recipient Qualification Matters--General Policies and
Procedures
22.400 Purpose.
22.405 Policy.
22.410 Grants officers' responsibilities.
22.415 Standards.
22.420 Pre-award procedures.
Subpart E--National Policy Matters
22.505 Purpose.
22.510 Certifications, representations, and assurances.
22.515 Provisions of annual appropriations acts.
22.520 Military recruiting on campus.
22.525 Paperwork Reduction Act.
22.530 Metric system of measurement.
Subpart F--Award
22.600 Purpose.
22.605 Grants officers' responsibilities.
22.610 Award instruments.
Subpart G--Field Administration
22.700 Purpose.
22.705 Policy.
22.710 Assignment of grants administration offices.
22.715 Grants administration office functions.
Subpart H--Post-Award Administration
22.800 Purpose and relation to other parts.
22.805 Post-award requirements in other parts.
22.810 Payments.
22.815 Claims, disputes, and appeals.
22.820 Debt collection.
22.825 Closeout audits.
Appendix A to Part 22--Proposal Provision for Required Certifications.
Appendix B to Part 22--Suggested Award Provisions for National Policy
Requirements That Often Apply.
Appendix C to Part 22--Administrative Requirements and Issues To Be
Addressed in Award Terms and Conditions.
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
[[Page 65]]
Source: 63 FR 12164, Mar. 12, 1998, unless otherwise noted.
Subpart A--General
Sec. 22.100 Purpose, relation to other parts, and organization.
(a) This part outlines grants officers' and DoD Components'
responsibilities related to the award and administration of grants and
cooperative agreements.
(b) In doing so, it also supplements other parts of the DoD Grant
and Agreement Regulations (DoDGARs) that are either Governmentwide rules
or DoD implementation of Governmentwide guidance in Office of Management
and Budget (OMB) Circulars. Those other parts of the DoDGARs, which are
referenced as appropriate in this part, are:
(1) Governmentwide rules on debarment, suspension and drug-free
workplace requirements, in 32 CFR part 25.
(2) The Governmentwide rule on lobbying restrictions, in 32 CFR part
28.
(3) Administrative requirements for grants and agreements awarded to
specific types of recipients:
(i) For State and local governmental organizations, in the
Governmentwide rule at 32 CFR part 33.
(ii) For institutions of higher education and other nonprofit
organizations, at 32 CFR part 32.
(iii) For for-profit organizations, at 32 CFR part 34.
(c) The organization of this part parallels the award and
administration process, from pre-award through post-award matters. It
therefore is organized in the same manner as the parts of the DoDGARs
(32 CFR parts 32, 33, and 34) that prescribe administrative requirements
for specific types of recipients.
Sec. 22.105 Definitions.
Other than the terms defined in this section, terms used in this
part are defined in 32 CFR 21.130.
Administrative offset. 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 the recipient owes the Government.
Advanced research. 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 and Research Category 6.3A) programs
within Research, Development, Test and Evaluation (RDT&E).
Applied research. 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 and Research Category 6.2)
programs within Research, Development, Test and Evaluation (RDT&E).
Applied research normally 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; these efforts are within the definition of
``development.''
Basic research. 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 and Research Category 6.1)
programs within Research, Development, Test and Evaluation (RDT&E). For
the purposes of this part, basic research includes:
(1) Research-related, science and engineering education, including
graduate fellowships and research traineeships.
(2) Research instrumentation and other activities designed to
enhance
[[Page 66]]
the infrastructure for science and engineering research.
Claim. A written demand or written assertion by one of the parties
to a grant or cooperative agreement seeking as a matter of right, the
payment of money in a sum certain, the adjustment or interpretation of
award terms, or other relief arising under or relating to a grant or
cooperative agreement. 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 officer if it is disputed
either as to liability or amount, or is not acted upon in a reasonable
time.
Debt. 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. Amounts due a
nonappropriated fund instrumentality are not debts owed the United
States, for the purposes of this subchapter.
Delinquent debt. A debt:
(1) 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
(2) With respect to which the debtor has elected not to exercise any
available appeals or has exhausted all agency appeal processes.
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.
Electronic commerce. The conduct of business through the use of
automation and electronic media, in lieu of paper transactions, direct
personal contact, telephone, or other means. For grants and cooperative
agreements, electronic commerce can include the use of electronic data
interchange, electronic mail, electronic bulletin board systems, and
electronic funds transfer for: program announcements or solicitations;
applications or proposals; award documents; recipients' requests for
payment; payment authorizations; and payments.
Electronic data interchange. The exchange of standardized
information communicated electronically between business partners,
typically between computers. It is DoD policy that DoD Component EDI
applications conform to the American National Standards Institute
(ANSI), Accredited Standards Committee (ASC) X-12 standard.\1\
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\1\ Available from Accredited Standards Committee, X-12 Secretariat,
Data Interchange Standards Association, 1800 Diagonal Road, Suite 355,
Alexandria, VA 22314-2852; Attention: Manager Maintenance and
Publications.
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Electronic funds transfer. A system that provides the authority to
debit or credit accounts in financial institutions by electronic means
rather than source documents (e.g., paper checks). Processing typically
occurs through the Federal Reserve System and/or the Automated Clearing
House (ACH) computer network. It is DoD policy that DoD Component EFT
transmissions conform to the American National Standards Institute
(ANSI), Accredited Standards Committee (ASC) X-12 standard.
Historically Black colleges and universities. Institutions of higher
education determined by the Secretary of Education to meet the
requirements of 34 CFR 608.2. Each DoD Component's contracting
activities and grants officers may obtain a list of historically Black
colleges and universities from that DoD Component's Small and
Disadvantaged Business Utilization office.
Institution of higher education. An educational institution that
meets the criteria in section 1201(a) of the Higher Education Act of
1965 (20 U.S.C. 1141(a)). Note, however, that institution of higher
education has a different meaning in Sec. 22.520, as given at
Sec. 22.520(b)(2).
Minority institutions. Institutions of higher education that meet
the criteria for minority institutions specified in 10
[[Page 67]]
U.S.C. 2323. Each DoD Component's contracting activities and grants
officers may obtain copies of a current list of institutions that
qualify as minority institutions under 10 U.S.C. 2323 from that DoD
Component's Small and Disadvantaged Business Utilization office (the
list of minority institutions changes periodically, based on Department
of Education data on institutions' enrollments of minority students).
Research. Basic, applied, and advanced research, as defined in this
section.
Subaward. An award of financial assistance in the form of money, or
property in lieu of money, made under a DoD grant or cooperative
agreement by a recipient to an eligible subrecipient. The term includes
financial assistance for substantive program performance by the
subrecipient of a portion of the program for which the DoD grant or
cooperative agreement was made. It does not include the recipient's
procurement of goods and services needed to carry out the program.
Subpart B--Selecting the Appropriate Instrument
Sec. 22.200 Purpose.
This subpart provides the bases for determining the appropriate type
of instrument in a given situation.
Sec. 22.205 Distinguishing assistance from procurement.
Before using a grant or cooperative agreement, the grants officer
shall make a positive judgment that an assistance instrument, rather
than a procurement contract, is the appropriate instrument, based on the
following:
(a) Purpose. (1) The grants officer must judge that the principal
purpose of the activity to be carried out under the instrument is to
stimulate or support a public purpose (i.e., to provide assistance),
rather than acquisition (i.e., to acquire goods and services for the
direct benefit of the United States Government). If the principal
purpose is acquisition, then the grants officer shall judge that a
procurement contract is the appropriate instrument, in accordance with
31 U.S.C. chapter 63 (``Using Procurement Contracts and Grant and
Cooperative Agreements''). Assistance instruments shall not be used in
such situations, except:
(i) When a statute specifically provides otherwise; or
(ii) When an exemption is granted, in accordance with Sec. 22.220.
(2) For research and development, the appropriate use of grants and
cooperative agreements therefore is almost exclusively limited to the
performance of selected basic, applied, and advanced research projects.
Development projects nearly always shall be performed by contract or
other acquisition transaction because their principal purpose is the
acquisition of specific deliverable items (e.g., prototypes or other
hardware) for the benefit of the Department of Defense.
(b) Fee or profit. Payment of fee or profit is consistent with an
activity whose principal purpose is the acquisition of goods and
services for the direct benefit or use of the United States Government,
rather than an activity whose principal purpose is assistance.
Therefore, the grants officer shall use a procurement contract, rather
than an assistance instrument, in all cases where:
(1) Fee or profit is to be paid to the recipient of the instrument;
or
(2) The instrument is to be used to carry out a program where fee or
profit is necessary to achieving program objectives.
Sec. 22.210 Authority for providing assistance.
(a) Before a grant or cooperative agreement may be used, the grants
officer must:
(1) Identify the program statute, the statute that authorizes the
DoD Component to carry out the activity the principal purpose of which
is assistance (see 32 CFR 21.205(b)).
(2) Review the program statute to determine if it contains
requirements that affect the:
(i) Solicitation, selection, and award processes. For example,
program statutes may authorize assistance to be provided only to certain
types of recipients; may require that recipients meet certain other
criteria to be eligible to receive assistance; or require that a
specific process shall be used to review recipients' proposals.
[[Page 68]]
(ii) Terms and conditions of the award. For example, some program
statutes require a specific level of cost sharing or matching.
(b) The grants officer shall ensure that the award of DoD
appropriations through a grant or cooperative agreement for a research
project meets the standards of 10 U.S.C. 2358, DoD's broad authority to
carry out research, even if the research project is authorized under a
statutory authority other than 10 U.S.C. 2358. The standards of 10
U.S.C. 2358 are that, in the opinion of the Head of the DoD Component or
his or her designee, the projects must be:
(1) Necessary to the responsibilities of the DoD Component.
(2) Related to weapons systems and other military needs or of
potential interest to the DoD Component.
Sec. 22.215 Distinguishing grants and cooperative agreements.
(a) Once a grants officer judges, in accordance with Secs. 22.205
and 22.210, that either a grant or cooperative agreement is the
appropriate instrument, the grants officer shall distinguish between the
two instruments as follows:
(1) Grants shall be used when the grants officer judges that
substantial involvement is not expected between the Department of
Defense and the recipient when carrying out the activity contemplated in
the agreement.
(2) Cooperative agreements shall be used when the grants officer
judges that substantial involvement is expected. The grants officer
should document the nature of the substantial involvement that led to
selection of a cooperative agreement. Under no circumstances are
cooperative agreements to be used solely to obtain the stricter controls
typical of a contract.
(b) In judging whether substantial involvement is expected, grants
officers should recognize that ``substantial involvement'' is a
relative, rather than an absolute, concept, and that it is primarily
based on programmatic factors, rather than requirements for grant or
cooperative agreement award or administration. For example, substantial
involvement may include collaboration, participation, or intervention in
the program or activity to be performed under the award.
Sec. 22.220 Exemptions.
Under 31 U.S.C. 6307, ``the Director of the Office of Management and
Budget may exempt an agency transaction or program'' from the
requirements of 31 U.S.C. chapter 63. Grants officers shall request such
exemptions only in exceptional circumstances. Each request shall specify
for which individual transaction or program the exemption is sought; the
reasons for requesting an exemption; the anticipated consequences if the
exemption is not granted; and the implications for other agency
transactions and programs if the exemption is granted. The procedures
for requesting exemptions shall be:
(a) In cases where 31 U.S.C. chapter 63 would require use of a
contract and an exemption from that requirement is desired:
(1) The grants officer shall submit a request for exemption, through
appropriate channels established by his or her DoD Component (see 32 CFR
21.115(b)(1)), to the Director of Defense Procurement (DDP).
(2) The DDP, after coordination with the Director of Defense
Research and Engineering (DDR&E), shall transmit the request to OMB or
notify the DoD Component that the request has been disapproved.
(b) In other cases, the DoD Component shall submit a request for the
exemption through appropriate channels to the DDR&E. The DDR&E shall
transmit the request to OMB or notify the DoD Component that the request
has been disapproved.
(c) Where an exemption is granted, documentation of the approval
shall be maintained in the award file.
Subpart C--Competition
Sec. 22.300 Purpose.
This subpart establishes DoD policy and implements statutes related
to the use of competitive procedures in the award of grants and
cooperative agreements.
[[Page 69]]
Sec. 22.305 General policy and requirement for competition.
(a) It is DoD policy to maximize use of competition in the award of
grants and cooperative agreements. This also conforms with:
(1) 31 U.S.C. 6301(3), which encourages the use of competition in
awarding all grants and cooperative agreements.
(2) 10 U.S.C. 2374(a), which sets out Congressional policy that any
new grant for research, development, test, or evaluation be awarded
through merit-based selection procedures.
(b) Grants officers shall use merit-based, competitive procedures
(as defined by Sec. 22.315) to award grants and cooperative agreements:
(1) In every case where required by statute (e.g., 10 U.S.C. 2361,
as implemented in Sec. 22.310, for certain grants to institutions of
higher education).
(2) To the maximum extent practicable in all cases where not
required by statute.
Sec. 22.310 Statutes concerning certain research, development, and
facilities construction grants.
(a) Definitions specific to this section. For the purposes of
implementing the requirements of 10 U.S.C. 2374 in this section, the
following terms are defined:
(1) Follow-on grant. A grant that provides for continuation of
research and development performed by a recipient under a preceding
grant. Note that follow-on grants are distinct from incremental funding
actions during the period of execution of a multi-year award.
(2) New grant. A grant that is not a follow-on grant.
(b) Statutory requirement to use competitive procedures. (1) A
grants officer shall not award a grant by other than merit-based,
competitive procedures (as defined by Sec. 22.315) to an institution of
higher education for the performance of research and development or for
the construction of research or other facilities, unless:
(i) In the case of a new grant for research and development, there
is a statute meeting the criteria in paragraph (c)(1) of this section;
(ii) In the case of a follow-on grant for research and development,
or of a grant for the construction of research or other facilities,
there is a statute meeting the criteria in paragraph (c)(2) of this
section; and
(iii) The Secretary of Defense submits to Congress a written notice
of intent to make the grant. The grant may not be awarded until 180
calendar days have elapsed after the date on which Congress received the
notice of intent. Contracting activities must submit a draft notice of
intent with supporting documentation through channels to the Deputy
Director, Defense Research and Engineering.
(2) Because subsequently enacted statutes may, by their terms,
impose different requirements than set out in paragraph (b)(1) of this
section, grants officers shall consult legal counsel on a case-by-case
basis, when grants for the performance of research and development or
for the construction of research or other facilities are to be awarded
to institutions of higher education by other than merit-based
competitive procedures.
(c) Subsequent statutes. In accordance with 10 U.S.C. 2361 and 10
U.S.C. 2374, a provision of law may not be construed as requiring the
award of a grant through other than the merit-based, competitive
procedures described in Sec. 22.315, unless:
(1) Institutions of higher education--new grants for research and
development. In the case of a new grant for research and development to
an institution of higher education, such provision of law specifically:
(i) Identifies the particular institution of higher education
involved;
(ii) States that such provision of law modifies or supersedes the
provisions of 10 U.S.C. 2361 (a requirement that applies only if the
statute authorizing or requiring award by other than competitive
procedures was enacted after September 30, 1989); and
(iii) States that the award to the institution of higher education
involved is required by such provision of law to be made in
contravention of the policy set forth in 10 U.S.C. 2374(a).
(2) Institutions of higher education--follow-on grants for research
and development and grants for the construction of any research or other
facility. In the case of any such grant to an institution of
[[Page 70]]
higher education, such provision of law specifically:
(i) Identifies the particular institution of higher education
involved; and
(ii) States that such provision of law modifies or supersedes the
provisions of 10 U.S.C. 2361 (a requirement that applies only if the
statute authorizing or requiring award by other than competitive
procedures was enacted after September 30, 1989).
(3) Other entities--new grants for research and development--(i)
General. In the case of a new grant for research and development to an
entity other than an institution of higher education, such provision of
law specifically:
(A) Identifies the particular entity involved;
(B) States that the award to that entity is required by such
provision of law to be made in contravention of the policy set forth in
10 U.S.C. 2374(a).
(ii) Exception. The requirement of paragraph (c)(3)(i) of this
section does not apply to any grant that calls upon the National Academy
of Sciences to:
(A) Investigate, examine, or experiment upon any subject of science
or art of significance to the Department of Defense or any Military
Department; and
(B) Report on such matters to the Congress or any agency of the
Federal Government.
Sec. 22.315 Merit-based, competitive procedures.
Competitive procedures are methods that encourage participation in
DoD programs by a broad base of the most highly qualified performers.
These procedures are characterized by competition among as many eligible
proposers as possible, with a published or widely disseminated notice.
Competitive procedures include, as a minimum:
(a) Notice to prospective proposers. The notice may be a notice of
funding availability or Broad Agency Announcement published in the
Federal Register or Commerce Business Daily, respectively, or a notice
that is made available broadly by electronic means. Alternatively, it
may take the form of a specific notice that is distributed to eligible
proposers (a specific notice must be distributed to at least two
eligible proposers to be considered as part of a competitive procedure).
Notices must include, as a minimum, the following information:
(1) Programmatic area(s) of interest, in which proposals or
applications are sought.
(2) Eligibility criteria for potential recipients (see subpart D of
this part).
(3) Criteria that will be used to select the applications or
proposals that will be funded, and the method for conducting the
evaluation.
(4) The type(s) of funding instruments (e.g., grants, cooperative
agreements, other assistance instruments, or procurement contracts) that
are anticipated to be awarded pursuant to the announcement.
(5) Instructions for preparation and submission of a proposal or
application, including the time by which it must be submitted.
(b) At least two eligible, prospective proposers.
(c) Impartial review of the merits of applications or proposals
received in response to the notice, using the evaluation method and
selection criteria described in the notice. For research and development
awards, in order to be considered as part of a competitive procedure,
the two principal selection criteria, unless statute provides otherwise,
must be the:
(1) Technical merits of the proposed research and development; and
(2) Potential relationship of the proposed research and development
to Department of Defense missions.
Sec. 22.320 Special competitions.
Some programs may be competed for programmatic or policy reasons
among specific classes of potential recipients. An example would be a
program to enhance U.S. capabilities for academic research and research-
coupled graduate education in defense-critical, science and engineering
disciplines, a program that would be competed specifically among
institutions of higher education. All such special competitions shall be
consistent with program representations in the President's budget
submission to Congress and with subsequent Congressional authorizations
and appropriations for the programs.
[[Page 71]]
Sec. 22.325 Historically Black colleges and universities (HBCUs) and other
minority institutions (MIs).
Increasing the ability of HBCUs and MIs to participate in federally
funded, university programs is an objective of Executive Order 12876 (3
CFR, 1993 Comp., p. 671) and 10 U.S.C. 2323. Grants officers shall
include appropriate provisions in Broad Agency Announcements (BAAs) or
other announcements for programs in which awards to institutions of
higher education are anticipated, in order to promote participation of
HBCUs and MIs in such programs. Also, whenever practicable, grants
officers shall reserve appropriate programmatic areas for exclusive
competition among HBCUs and MIs when preparing announcements for such
programs.
Subpart D--Recipient Qualification Matters--General Policies and
Procedures
Sec. 22.400 Purpose.
The purpose of this subpart is to specify policies and procedures
for grants officers' determination of recipient qualifications prior to
award.
Sec. 22.405 Policy.
(a) General. Grants officers normally shall award grants or
cooperative agreements only to qualified recipients that meet the
standards in Sec. 22.415. This practice conforms with the Governmentwide
policy, stated at 32 CFR 25.115(a), to do business only with responsible
persons.
(b) Exception. In exceptional circumstances, grants officers may
make awards to recipients that do not fully meet the standards in
Sec. 22.415 and include special award conditions that are appropriate to
the particular situation, in accordance with 32 CFR 32.14, 33.12, or
34.4.
Sec. 22.410 Grants officers' responsibilities.
The grants officer is responsible for determining a recipient's
qualification prior to award. The grants officer's signature on the
award document shall signify his or her determination that either:
(a) The potential recipient meets the standards in Sec. 22.415 and
is qualified to receive the grant or cooperative agreement; or
(b) An award is justified to a recipient that does not fully meet
the standards, pursuant to Sec. 22.405(b). In such cases, grants
officers shall document in the award file the rationale for making an
award to a recipient that does not fully meet the standards.
Sec. 22.415 Standards.
To be qualified, a potential recipient must:
(a) Have the management capability and adequate financial and
technical resources, given those that would be made available through
the grant or cooperative agreement, to execute the program of activities
envisioned under the grant or cooperative agreement.
(b) Have a satisfactory record of executing such programs or
activities (if a prior recipient of an award).
(c) Have a satisfactory record of integrity and business ethics.
(d) Be otherwise qualified and eligible to receive a grant or
cooperative agreement under applicable laws and regulations (see
Sec. 22.420(c)).
Sec. 22.420 Pre-award procedures.
(a) The appropriate method to be used and amount of effort to be
expended in deciding the qualification of a potential recipient will
vary. In deciding on the method and level of effort, the grants officer
should consider factors such as:
(1) DoD's past experience with the recipient;
(2) Whether the recipient has previously received cost-type
contracts, grants, or cooperative agreements from the Federal
Government; and
(3) The amount of the prospective award and complexity of the
project to be carried out under the award.
(b) There is no DoD-wide requirement to obtain a pre-award credit
report, audit, or any other specific piece of information. On a case-by-
case basis, the grants officer will decide whether there is a need to
obtain any such information to assist in deciding whether the recipient
meets the standards in Sec. 22.415 (a), (b), and (c).
[[Page 72]]
(1) Should the grants officer in a particular case decide that a
pre-award credit report, audit, or survey is needed, he or she should
consult first with the appropriate grants administration office
(identified in Sec. 22.710), and decide whether pre-existing surveys or
audits of the recipient, such as those of the recipient's internal
control systems under OMB Circular A-133 \2\ will satisfy the need (see
Sec. 22.715(a)(1)).
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\2\ Contact the Office of Management and Budget, EOP Publications,
725 17th St. NW, New Executive Office Building, Washington, DC 20503.
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(2) If, after consulting with the grants administration office, the
grants officer decides to obtain a credit report, audit, or other
information, and the report or other information discloses that a
potential recipient is delinquent on a debt to an agency of the United
States Government, then:
(i) The grants officer shall take such information into account when
determining whether the potential recipient is qualified with respect to
the grant or cooperative agreement; and
(ii) If the grants officer decides to make the award to the
recipient, unless there are compelling reasons to do otherwise, the
grants officer shall delay the award of the grant or cooperative
agreement until payment is made or satisfactory arrangements are made to
repay the debt.
(c) In deciding whether a recipient is otherwise qualified and
eligible in accordance with the standard in Sec. 22.415(d), the grants
officer shall ensure that the potential recipient:
(1) Is not identified on the Governmentwide ``List of Parties
Excluded from Federal Procurement and Nonprocurement Programs'' as being
debarred, suspended, or otherwise ineligible to receive the award. The
grants officer shall check the list of such parties for:
(i) Potential recipients of prime awards, as described at 32 CFR
25.505(d);
(ii) A recipient's principals (e.g., officers, directors, or other
key employees, as defined at 32 CFR 25.105); and
(iii) Potential recipients of subawards, where DoD Component
approval of such principals or lower-tier recipients is required under
the terms of the award (see 32 CFR 25.505(e)).
(2) Has provided all certifications and assurances required by
Federal statute, Executive order, or codified regulation, unless they
are to be addressed in award terms and conditions at the time of award
(see Sec. 22.510).
(3) Meets any eligibility criteria that may be specified in the
statute authorizing the specific program under which the award is being
made (see Sec. 22.210(a)(2)).
(d) Grants officers shall obtain each recipient's Taxpayer
Identification Number (TIN, which may be the Social Security Number for
an individual and Employer Identification Number for a business or non-
profit entity) and notify the recipient that the TIN is being obtained
for purposes of collecting and reporting on any delinquent amounts that
may arise out of the recipient's relationship with the Government.
Obtaining the TIN and so notifying the recipient is a statutory
requirement of 31 U.S.C. 7701, as amended by the Debt Collection
Improvement Act of 1996 (section 31001(i)(1), Pub. L. 104-134).
Subpart E--National Policy Matters
Sec. 22.505 Purpose.
The purpose of this subpart is to supplement other regulations that
implement national policy requirements, to the extent that it is
necessary to provide additional guidance to DoD grants officers. The
other regulations that implement national policy requirements include:
(a) The other parts of the DoDGARs (32 CFR parts 32, 33, and 34)
that implement the Governmentwide guidance in OMB Circulars A-102 \3\
and A-110 \4\ on administrative requirements for grants and cooperative
agreements. Those parts address some national policy matters that appear
in the OMB Circulars.
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\3\ See footnote 2 to Sec. 22.420(b)(1).
\4\ See footnote 2 to Sec. 22.420(b)(1).
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(b) DoD regulations other than the DoDGARs.
(c) Other Federal agencies' regulations.
[[Page 73]]
Sec. 22.510 Certifications, representations, and assurances.
(a) Certifications--(1) Policy. Certifications of compliance with
national policy requirements are to be obtained from recipients only for
those national policies where a statute, Executive order, or codified
regulation specifically states that a certification is required. Other
national policy requirements may be addressed by obtaining
representations or assurances (see paragraph (b) of this section).
Grants officers should utilize methods for obtaining certifications, in
accordance with Executive Order 12866 (3 CFR, 1993 Comp., p. 638), that
minimize administration and paperwork.
(2) Procedures. (i) When necessary, grants officers may obtain
individual, written certifications.
(ii) Whenever possible, and to the extent consistent with statute
and codified regulation, grants officers should identify the
certifications that are required for the particular type of recipient
and program, and consolidate them into a single certification provision
that cites them by reference.
(A) Appendix A to this part lists the common certifications and
cites their applicability. Because some certifications (e.g., the
certification on lobbying in Appendix A to this part) are required by
law to be submitted at the time of proposal, rather than at the time of
award, Appendix A to this part includes language that may be used for
incorporating common certifications by reference into a proposal.
(B) If a grants officer elects to have proposers incorporate
certifications by reference into their proposals, he or she must do so
in one of the two following ways. When required by statute or codified
regulation, the solicitation must include the full text of the
certifications that proposers are to provide by reference. In other
cases, the grants officer may include language in the solicitation that
informs the proposers where the full text may be found (e.g., in
documents or computer network sites that are readily available to the
public) and offers to provide it to proposers upon request.
(C) Grants officers may incorporate certifications by reference in
award documents when doing so is consistent with statute and codified
regulation. Note that a statute requires submission of the lobbying
certification in Appendix A to this part at the time of proposal, and
that 32 CFR 25.510(a) requires submission of certifications regarding
debarment and suspension at the time of proposal. The provision that a
grants officer would use to incorporate certifications in award
documents, when consistent with statute and codified regulation, would
be similar to the provision in Appendix A to this part, except that it
would be modified to state that the recipient is providing the required
certifications by signing the award document or by accepting funds under
the award.
(b) Representations and assurances. Many national policies, either
in statute or in regulation, require recipients of grants and
cooperative agreements to make representations or provide assurances
(rather than certifications) that they are in compliance with the
policies. As discussed in Sec. 22.610(b), Appendix B to this part
suggests award terms and conditions that may be used to address several
of the more commonly applicable national policy requirements. These
terms and conditions may be used to obtain required assurances and
representations, if the grants officer wishes to do so at the time of
award, rather than through the use of the standard application form (SF-
424 \5\) or other means at the time of proposal.
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\5\ For copies of Standard Forms listed in this part, contact
regional grants administration offices of the Office of Naval Research.
Addresses for the offices are listed in the ``DoD Directory of Contract
Administration Services Components,'' DLAH 4105.4, which can be obtained
either from: Defense Logistics Agency, Publications Distribution
Division (DASC-WDM), 8725 John J. Kingman Rd., Suite 0119, Fort Belvoir,
VA 22060-6220; or from the Defense Contract Management Command home page
at http://www.dcmc.dcrb.dla.mil. ''
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Sec. 22.515 Provisions of annual appropriations acts.
An annual appropriations act can include general provisions stating
national policy requirements that apply to the use of funds (e.g.,
obligation
[[Page 74]]
through a grant or cooperative agreement) appropriated by the act.
Because these requirements are of limited duration (the period during
which a given year's appropriations are available for obligation), and
because they can vary from year to year and from one agency's
appropriations act to another agency's, the grants officer must know the
agency(ies) and fiscal year(s) of the appropriations being obligated by
a given grant or cooperative agreement, and may need to consult legal
counsel if he or she does not know the requirements applicable to those
appropriations.
Sec. 22.520 Military recruiting on campus.
(a) Purpose. The purpose of this section is to implement section 558
of the National Defense Authorization Act for Fiscal Year 1995 (Pub. L.
103-337), as it specifically affects grants and cooperative agreements
(note that section 558 appears as a note to 10 U.S.C. 503). This section
thereby supplements DoD's primary implementation of section 558, in 32
CFR part 216, ``Military Recruiting and Reserve Officer Training Corps
Program Access to Institutions of Higher Education.''
(b) Definitions specific to this section. In this section:
(1) Directory information has the following meaning, given in
section 558(c) of Pub. L. 103-337. It means, with respect to a student,
the student's name, address, telephone listing, date and place of birth,
level of education, degrees received, and the most recent previous
educational institution enrolled in by the student.
(2) Institution of higher education has a different meaning in this
section than it does in the rest of this part. The meaning of the term
in other sections of this part is given at Sec. 22.105. In this section,
``institution of higher education'' (IHE) has the following meaning,
given at 32 CFR 216.3. The term means a domestic college, university, or
subelement thereof providing postsecondary school courses of study,
including foreign campuses of such domestic institutions. The term
includes junior colleges, community colleges, and institutions providing
courses leading to undergraduate and post-graduate degrees. The term
does not include entities that operate exclusively outside the United
States, its territories, and possessions. A subelement of an IHE is a
discrete (although not necessarily autonomous) organizational entity
that may establish policy or practices affecting military recruiting and
related actions (e.g., an undergraduate school, law school, medical
school, or other graduate school).
(c) Statutory requirement. No funds available to the Department of
Defense may be provided by grant to any institution of higher education
that either has a policy of denying or that effectively prevents the
Secretary of Defense from obtaining, for military recruiting purposes,
entry to campuses or access to students on campuses or access to
directory information pertaining to students.
(d) Policy--(1) Applicability to subordinate elements of
institutions of higher education. 32 CFR part 216, DoD's primary
implementation of section 558, establishes procedures by which the
Department of Defense identifies institutions of higher education that
have a policy or practice described in paragraph (c) of this section. In
cases where those procedures lead to a determination that specific
subordinate elements of an institution of higher education have such a
policy or practice, rather than the institution as a whole, 32 CFR part
216 provides that the prohibition on use of DoD funds applies only to
those subordinate elements.
(2) Applicability to cooperative agreements. As a matter of DoD
policy, the restrictions of section 558, as implemented by 32 CFR part
216, apply to cooperative agreements, as well as grants.
(3) Deviations. Grants officers may not deviate from any provision
of this section without obtaining the prior approval of the Director of
Defense Research and Engineering. Requests for deviations shall be
submitted, through appropriate channels, to: Director for Research,
ODDR&E(R), 3080 Defense Pentagon, Washington, DC 20301-3080.
(e) Grants officers' responsibilities. A grants officer shall:
(1) Not award any grant or cooperative agreement to an institution
of higher education that has been identified pursuant to the procedures
of 32
[[Page 75]]
CFR part 216. Such institutions are identified on the Governmentwide
``List of Parties Excluded from Federal Procurement and Nonprocurement
Programs,'' as being ineligible to receive awards of DoD funds (note
that 32 CFR 25.505(d) requires the grants officer to check the list
prior to determining that a recipient is qualified to receive an award).
(2) [Reserved]
(3) Not consent to any subaward of DoD funds to such an
organization, under a grant or cooperative agreement to any recipient,
if such subaward requires the grants officer's consent.
(4) Include the clause in paragraph (f) of this section in each
grant or cooperative agreement with an institution of higher education.
Note that this requirement does not flow down (i.e., recipients are not
required to include the clause in subawards).
(5) If an institution of higher education refuses to accept the
clause in paragraph (f) of this section:
(i) Determine that the institution is not qualified with respect to
the award. The grants officer may award to an alternative recipient.
(ii) Transmit the name of the institution, through appropriate
channels, to the Director for Accession Policy, Office of the Assistant
Secretary of Defense for Force Management Policy, OASD(FMP), 4000
Defense Pentagon, Washington, DC 20301-4000. This will allow OASD(FMP)
to decide whether to initiate an evaluation of the institution under 32
CFR part 216, to determine whether it is an institution that has a
policy or practice described in paragraph (c) of this section.
(f) Clause for award documents. The following clause is to be
included in grants and cooperative agreements with institutions of
higher education:
``As a condition for receipt of funds available to the Department of
Defense (DoD) under this award, the recipient agrees that it is not an
institution of higher education (as defined in 32 CFR part 216) that has
a policy of denying, and that it is not an institution of higher
education that effectively prevents, the Secretary of Defense from
obtaining for military recruiting purposes: (A) Entry to campuses or
access to students on campuses; or (B) access to directory information
pertaining to students. If the recipient is determined, using the
procedures in 32 CFR part 216, to be such an institution of higher
education during the period of performance of this agreement, and
therefore to be in breach of this clause, the Government will cease all
payments of DoD funds under this agreement and all other DoD grants and
cooperative agreements to the recipient, and it may suspend or terminate
such grants and agreements unilaterally for material failure to comply
with the terms and conditions of award.''
Sec. 22.525 Paperwork Reduction Act.
Grants officers shall include appropriate award terms or conditions,
if a recipient's activities under an award will be subject to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3500, et seq.):
(a) Generally, the Act only applies to Federal agencies--it requires
agencies to obtain clearance from the Office of Management and Budget
before collecting information using forms, schedules, questionnaires, or
other methods calling either for answers to:
(1) Identical questions from ten or more persons other than
agencies, instrumentalities, or employees of the United States.
(2) Questions from agencies, instrumentalities, or employees of the
United States which are to be used for statistical compilations of
general public interest.
(b) The Act applies to similar collections of information by
recipients of grants or cooperative agreements only when:
(1) A recipient collects information at the specific request of the
awarding Federal agency; or
(2) The terms and conditions of the award require specific approval
by the agency of the information collection or the collection
procedures.
Sec. 22.530 Metric system of measurement.
(a) Statutory requirement. The Metric Conversion Act of 1975, as
amended by the Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C.
205) and implemented by Executive Order 12770 (3 CFR, 1991 Comp., p.
343), states that:
(1) The metric system is the preferred measurement system for U.S.
trade and commerce.
[[Page 76]]
(2) The metric system of measurement will be used, to the extent
economically feasible, in federal agencies' procurements, grants, and
other business-related activities.
(3) Metric implementation shall not be required to the extent that
such use is likely to cause significant inefficiencies or loss of
markets to United States firms.
(b) Responsibilities. DoD Components shall ensure that the metric
system is used, to the maximum extent practicable, in measurement-
sensitive activities supported by programs that use grants and
cooperative agreements, and in measurement-sensitive outputs of such
programs.
Subpart F--Award
Sec. 22.600 Purpose.
This subpart sets forth grants officers' responsibilities relating
to the award document and other actions at the time of award.
Sec. 22.605 Grants officers' responsibilities.
At the time of award, the grants officer is responsible for ensuring
that:
(a) The award instrument contains the appropriate terms and
conditions, in accordance with Sec. 22.610.
(b) Information about the award is provided to the office
responsible for preparing reports for the Defense Assistance Award Data
System (DAADS), to ensure timely and accurate reporting of data required
by 31 U.S.C. 6101-6106 (see 32 CFR part 21, subpart C).
(c)(1) In addition to the copy of the award document provided to the
recipient, a copy is forwarded to the office designated to administer
the grant or cooperative agreement, and another copy is forwarded to the
finance and accounting office designated to make the payments to the
recipient.
(2) For any award subject to the electronic funds transfer (EFT)
requirement described in Sec. 22.810(b)(2), the grants officer shall
include a prominent notification of that fact on the first page of the
copies forwarded to the recipient, the administrative grants officer,
and the finance and accounting office. On the first page of the copy
forwarded to the recipient, the grants officer also shall include a
prominent notification that the recipient, to be paid, must submit a
Payment Information Form (Standard Form SF-3881\6\) to the responsible
DoD payment office, if that payment office does not currently have the
information (e.g., bank name and account number) needed to pay the
recipient by EFT.
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\6\ See footnote 5 to Sec. 22.510(b).
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Sec. 22.610 Award instruments.
(a) Each award document shall include terms and conditions that:
(1) Address programmatic requirements (e.g., a statement of work or
other appropriate terms or conditions that describe the specific goals
and objectives of the project). The grants officer shall develop such
terms and conditions in coordination with program officials.
(2) Provide for the recipient's compliance with:
(i) Pertinent Federal statutes or Executive orders that apply
broadly to Federal or DoD assistance awards.
(ii) Any program-specific requirements that are prescribed in the
program statute (see Sec. 22.210(a)(2)), or appropriation-specific
requirements that are stated in the pertinent Congressional
appropriations (see Sec. 22.515).
(iii) Pertinent portions of the DoDGARs or other Federal
regulations, including those that implement the Federal statutes or
Executive orders described in paragraphs (a)(2) (i) and (ii) of this
section.
(3) Specify the grants officer's instructions for post-award
administration, for any matter where the post-award administration
provisions in 32 CFR part 32, 33, or 34 give the grants officer options
for handling the matter. For example, under 32 CFR 32.24(b), the grants
officers must choose among possible methods for the recipient's
disposition of program income. It is essential that the grants officer
identify the option selected in each case, to provide clear instructions
to the recipient and the grants officer responsible for post-award
administration of the grant or cooperative agreement.
(b) To assist grants officers:
[[Page 77]]
(1) Appendix B to this part provides model clauses to implement
certain Federal statutes, Executive orders, and regulations (see
paragraph (a)(2)(i) of this section) that frequently apply to DoD grants
and cooperative agreements. Grants officers may incorporate the model
clauses into award terms and conditions, as appropriate. It should be
noted that Appendix B to this part is an aid, and not an exhaustive list
of all requirements that apply in all cases. Depending on the
circumstances of a given award, other statutes, Executive orders, or
codified regulations also may apply (e.g., Appendix B to this part does
not list program-specific requirements described in paragraph (a)(2)(ii)
of this section).
(2) Appendix C to this part is a list of administrative requirements
that apply to awards to different types of recipients. It also
identifies post-award administration issues that the grants officer must
address in the award terms and conditions.
Subpart G--Field Administration
Sec. 22.700 Purpose.
This subpart prescribes policies and procedures for administering
grants and cooperative agreements. It does so in conjunction with 32 CFR
parts 32, 33, and 34, which prescribe administrative requirements for
particular types of recipients.
Sec. 22.705 Policy.
(a) DoD policy is to have each recipient deal with a single office,
to the maximum extent practicable, for post-award administration of its
grants and cooperative agreements. This reduces burdens on recipients
that can result when multiple DoD offices separately administer grants
and cooperative agreements they award to a given recipient. It also
minimizes unnecessary duplication of field administration services.
(b) To further reduce burdens on recipients, the office responsible
for performing field administration services for grants and cooperative
agreements to a particular recipient shall be, to the maximum extent
practicable, the same office that is assigned responsibility for
performing field administration services for contracts awarded to that
recipient.
(c) Contracting activities and grants officers therefore shall use
cross-servicing arrangements whenever practicable and, to the maximum
extent possible, delegate responsibility for post-award administration
to the cognizant grants administration offices identified in
Sec. 22.710.
Sec. 22.710 Assignment of grants administration offices.
In accordance with the policy stated in Sec. 22.705(b), the DoD
offices (referred to in this part as ``grants administration offices'')
that are assigned responsibility for performing field administration
services for grants and cooperative agreements are (see the ``DoD
Directory of Contract Administration Services Components,'' DLAH
4105.4,\7\ for specific addresses of administration offices):
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\7\ Copies may be obtained either from the Defense Logistics Agency,
Publications Distribution Division (DASC-WDM), 8725 John J. Kingman Rd.,
Suite 0119, Fort Belvoir, VA 22060-6220, or from the Defense Contract
Management Command home page at http://www.dcmc.dcrb.dla.mil.
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(a) Regional offices of the Office of Naval Research, for grants and
cooperative agreements with:
(1) Institutions of higher education and laboratories affiliated
with such institutions, to the extent that such organizations are
subject to the university cost principles in OMB Circular A-21.\8\
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\8\ See footnote 2 to Sec. 22.420(b)(1).
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(2) Nonprofit organizations that are subject to the cost principles
in OMB Circular A-122,\9\ if their principal business with the
Department of Defense is research and development.
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\9\ See footnote 2 to Sec. 22.420(b)(1).
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(b) Field offices of the Defense Contract Management Command, for
grants and cooperative agreements with all other entities, including:
(1) For-profit organizations.
(2) Nonprofit organizations identified in Attachment C of OMB
Circular A-122 that are subject to for-profit cost principles in 48 CFR
part 31.
(3) Nonprofit organizations subject to the cost principles in OMB
Circular A-122, if their principal business with the
[[Page 78]]
Department of Defense is other than research and development.
(4) State and local governments.
Sec. 22.715 Grants administration office functions.
The primary responsibility of cognizant grants administration
offices shall be to advise and assist grants officers and recipients
prior to and after award, and to help ensure that recipients fulfill all
requirements in law, regulation, and award terms and conditions.
Specific functions include:
(a) Conducting reviews and coordinating reviews, audits, and audit
requests. This includes:
(1) Advising grants officers on the extent to which audits by
independent auditors (i.e., public accountants or Federal auditors) have
provided the information needed to carry out their responsibilities. If
a recipient has had an independent audit in accordance with OMB Circular
A-133, and the audit report disclosed no material weaknesses in the
recipient's financial management and other management and control
systems, additional preaward or closeout audits usually will not be
needed (see Secs. 22.420(b) and 22.825(b)).
(2) Performing pre-award surveys, when requested by a grants
officer, after providing advice described in paragraph (a)(1) of this
section.
(3) Reviewing recipients' systems and compliance with Federal
requirements, in coordination with any reviews and compliance audits
performed by independent auditors under OMB Circular A-133, or in
accordance with the terms and conditions of the award. This includes:
(i) Reviewing recipients' financial management, property management,
and purchasing systems, to determine the adequacy of such systems.
(ii) Determining that recipients have drug-free workplace programs,
as required under 32 CFR part 25.
(4) Notifying the Office of the Assistant Inspector General for
Policy and Oversight (OAIG(P&O)), 400 Army-Navy Drive, Arlington, VA
22202, if either of the following is not available within a reasonable
period of time (e.g., six months) after the date on which a recipient of
DoD grants and agreements was to have submitted its audit report under
OMB Circular A-133 to the OAIG(P&O):
(i) The recipient's audit report under OMB Circular A-133.
(ii) The OAIG(P&O)'s desk review of the recipient's audit report, or
a letter stating that the OAIG(P&O) has decided not to conduct a desk
review.
(b) Performing property administration services for Government-owned
property, and for any property acquired by a recipient, with respect to
which the recipient has further obligations to the Government.
(c) Ensuring timely submission of required reports.
(d) Executing administrative closeout procedures.
(e) Establishing recipients' indirect cost rates, where the
Department of Defense is the cognizant or oversight Federal agency with
the responsibility for doing so.
(f) Performing other administration functions (e.g., receiving
recipients' payment requests and transmitting approved payment
authorizations to payment offices) as delegated by applicable cross-
servicing agreements or letters of delegation.
Subpart H--Post-Award Administration
Sec. 22.800 Purpose and relation to other parts.
This subpart sets forth grants officers' and DoD Components'
responsibilities for post-award administration, by providing DoD-
specific requirements on payments; debt collection; claims, disputes and
appeals; and closeout audits.
Sec. 22.805 Post-award requirements in other parts.
Grants officers responsible for post-award administration of grants
and cooperative agreements shall administer such awards in accordance
with the following parts of the DoDGARs, as supplemented by this
subpart:
(a) Awards to domestic recipients. Standard administrative
requirements for grants and cooperative agreements with domestic
recipients are specified in other parts of the DoDGARs, as follows:
[[Page 79]]
(1) For awards to domestic institutions of higher education and
other nonprofit organizations, requirements are specified in 32 CFR part
32, which is the DoD implementation of OMB Circular A-110.
(2) For awards to State and local governments, requirements are
specified in 32 CFR part 33, which is the DoD codification of the
Governmentwide common rule to implement OMB Circular A-102.
(3) For awards to domestic for-profit organizations, requirements
are specified in 32 CFR part 34, which is modeled on the requirements in
OMB Circular A-110.
(b) Awards to foreign recipients. DoD Components shall use the
administrative requirements specified in paragraph (a) of this section,
to the maximum extent practicable, for grants and cooperative agreements
to foreign recipients.
Sec. 22.810 Payments.
(a) Purpose. This section prescribes policies and grants officers'
post-award responsibilities, with respect to payments to recipients of
grants and cooperative agreements.
(b) Policy. (1) It is Governmentwide policy to minimize the time
elapsing between any payment of funds to a recipient and the recipient's
disbursement of the funds for program purposes (see 32 CFR 32.22(a) and
33.21(b), and the implementation of the Cash Management Improvement Act
at 31 CFR part 205).
(2) It also is a Governmentwide requirement to use electronic funds
transfer (EFT) in the payment of any grant for which an application or
proposal was submitted or renewed on or after July 26, 1996, unless the
recipient has obtained a waiver by submitting to the head of the
pertinent Federal agency a certification that it has neither an account
with a financial institution nor an authorized payment agent. This
requirement is in 31 U.S.C. 3332, as amended by the Debt Collection
Improvement Act of 1996 (section 31001(x)(1)(A), Pub. L. 104-134), and
as implemented by Department of Treasury regulations at 31 CFR part 208.
As a matter of DoD policy, this requirement applies to cooperative
agreements, as well as grants. Within the Department of Defense, the
Defense Finance and Accounting Service implements this EFT requirement,
and grants officers have collateral responsibilities at the time of
award, as described in Sec. 22.605(c), and in postaward administration,
as described in Sec. 22.810(c)(3)(iv).
(3) Expanding on these Governmentwide policies, DoD policy is for
DoD Components to use electronic commerce, to the maximum extent
practicable, in the portions of the payment process for grants and
cooperative agreements for which grants officers are responsible. In
cases where recipients submit each payment request to the grants
officer, this includes using electronic methods to receive recipients'
requests for payment and to transmit authorizations for payment to the
DoD payment office. Using electronic methods will improve timeliness and
accuracy of payments and reduce administrative burdens associated with
paper-based payments.
(c) Post-award responsibilities. In cases where the recipient
submits each payment request to the grants officer, the administrative
grants officer designated to handle payments for a grant or cooperative
agreement is responsible for:
(1) Handling the recipient's requests for payments in accordance
with DoD implementation of Governmentwide guidance (see 32 CFR 32.22,
33.21, or 34.12, as applicable).
(2) Reviewing each payment request to ensure that:
(i) The request complies with the award terms.
(ii) Available funds are adequate to pay the request.
(iii) The recipient will not have excess cash on hand, based on
expenditure patterns.
(3) Maintaining a close working relationship with the personnel in
the finance and accounting office responsible for making the payments. A
good working relationship is necessary, to ensure timely and accurate
handling of financial transactions for grants and cooperative
agreements. Administrative grants officers:
(i) Should be generally familiar with policies and procedures for
disbursing
[[Page 80]]
offices that are contained in Chapter 19 of Volume 10 of the DoD
Financial Management Regulation (the FMR, DoD 7000.14-R\10\).
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\10\ 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.
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(ii) Shall forward authorizations to the designated payment office
expeditiously, so that payments may be made in accordance with the
timely payment guidelines in Chapter 19 of Volume 10 of the FMR. Unless
alternative arrangements are made with the payment office,
authorizations should be forwarded to the payment office at least 3
working days before the end of the period specified in the FMR. The
period specified in the FMR is:
(A) No more than seven calendar days after receipt of the
recipient's request by the administrative grants officer, whenever
electronic commerce is used (i.e., EDI to request and authorize payments
and electronic funds transfer (EFT) to make payments).
(B) No more than thirty calendar days after receipt of the
recipient's request by the administrative grants officer, when it is not
possible to use electronic commerce and paper transactions are used.
(C) No more than seven calendar days after each date specified, when
payments are authorized in advance based on a predetermined payment
schedule, provided that the payment schedule was received in the
disbursing office at least 30 calendar days in advance of the date of
the scheduled payment.
(iii) Shall ensure that the recipients' Taxpayer Identification
Number (TIN) is included with each payment authorization forwarded to
the payment office. This is a statutory requirement of 31 U.S.C. 3325,
as amended by the Debt Collection Improvement Act of 1996 (section
31001(y), Pub. L. 104-134).
(iv) For each award that is required to be paid by EFT (see
Sec. 22.605(c) and (Sec. 22.810(b)(2)), shall prominently indicate that
fact in the payment authorization.
Sec. 22.815 Claims, disputes, and appeals.
(a) Award terms. Grants officers shall include in grants and
cooperative agreements a term or condition that incorporates the
procedures of this section for:
(1) Processing recipient claims and disputes.
(2) Deciding appeals of grants officers' decisions.
(b) Submission of claims--(1) Recipient claims. If a recipient
wishes to submit a claim arising out of or relating to a grant or
cooperative agreement, the grants officer shall inform the recipient
that the claim must:
(i) Be submitted in writing to the grants officer for decision;
(ii) Specify the nature and basis for the relief requested; and
(iii) Include all data that supports the claim.
(2) DoD Component claims. Claims by a DoD Component shall be the
subject of a written decision by a grants officer.
(c) Alternative Dispute Resolution (ADR)--(1) Policy. DoD policy is
to try to resolve all issues concerning grants and cooperative
agreements by mutual agreement at the grants officer's level. DoD
Components therefore are encouraged to use ADR procedures to the maximum
extent practicable. ADR procedures are any voluntary means (e.g., mini-
trials or mediation) used to resolve issues in controversy without
resorting to formal administrative appeals (see paragraph (e) of this
section) or to litigation.
(2) Procedures. (i) The ADR procedures or techniques to be used may
either be agreed upon by the Government and the recipient in advance
(e.g., when agreeing on the terms and conditions of the grant or
cooperative agreement), or may be agreed upon at the time the parties
determine to use ADR procedures.
(ii) If a grants officer and a recipient are not able to resolve an
issue through unassisted negotiations, the grants officer shall
encourage the recipient to enter into ADR procedures. ADR procedures may
be used prior to submission of a recipient's claim or at any time prior
to the Grant Appeal Authority's decision on a recipient's appeal (see
paragraph (e)(3)(iii) of this section).
[[Page 81]]
(d) Grants officer decisions. (1) Within 60 calendar days of receipt
of a written claim, the grants officer shall either:
(i) Prepare a written decision, which shall include the reasons for
the decision; shall identify all relevant data on which the decision is
based; shall identify the cognizant Grant Appeal Authority and give his
or her mailing address; and shall be included in the award file; or
(ii) Notify the recipient of a specific date when he or she will
render a written decision, if more time is required to do so. The notice
shall inform the recipient of the reason for delaying the decision
(e.g., the complexity of the claim, a need for more time to complete ADR
procedures, or a need for the recipient to provide additional
information to support the claim).
(2) The decision of the grants officer shall be final, unless the
recipient decides to appeal. If a recipient decides to appeal a grants
officer's decision, the grants officer shall encourage the recipient to
enter into ADR procedures, as described in paragraph (c) of this
section.
(e) Formal administrative appeals--(1) Grant appeal authorities.
Each DoD Component that awards grants or cooperative agreements shall
establish one or more Grant Appeal Authorities to decide formal,
administrative appeals in accordance with paragraph (e)(3) of this
section. Each Grant Appeal Authority shall be either:
(i) An individual at a grade level in the Senior Executive Service,
if civilian, or at the rank of Flag or General Officer, if military; or
(ii) A board chaired by such an individual.
(2) Right of appeal. A recipient has the right to appeal a grants
officer's decision to the Grant Appeal Authority (but note that ADR
procedures, as described in paragraph (c) of this section, are the
preferred means for resolving any appeal).
(3) Appeal procedures--(i) Notice of appeal. A recipient may appeal
a decision of the grants officer within 90 calendar days of receiving
that decision, by filing a written notice of appeal to the Grant Appeal
Authority and to the grants officer. If a recipient elects to use an ADR
procedure, the recipient is permitted an additional 60 calendar days to
file the written notice of appeal to the Grant Appeal Authority and
grants officer.
(ii) Appeal file. Within 30 calendar days of receiving the notice of
appeal, the grants officer shall forward to the Grant Appeal Authority
and the recipient the appeal file, which shall include copies of all
documents relevant to the appeal. The recipient may supplement the file
with additional documents it deems relevant. Either the grants officer
or the recipient may supplement the file with a memorandum in support of
its position. The Grant Appeal Authority may request additional
information from either the grants officer or the recipient.
(iii) Decision. The appeal shall be decided solely on the basis of
the written record, unless the Grant Appeal Authority decides to conduct
fact-finding procedures or an oral hearing on the appeal. Any fact-
finding or hearing shall be conducted using procedures that the Grant
Appeal Authority deems appropriate.
(f) Representation. A recipient may be represented by counsel or any
other designated representative in any claim, appeal, or ADR proceeding
brought pursuant to this section, as long as the representative is not
otherwise prohibited by law or regulation from appearing before the DoD
Component concerned.
(g) Non-exclusivity of remedies. Nothing in this section is intended
to limit a recipient's right to any remedy under the law.
Sec. 22.820 Debt collection.
(a) Purpose. This section prescribes procedures for establishing
debts owed by recipients of grants and cooperative agreements, and
transferring them to payment offices for collection.
(b) Resolution of indebtedness. The grants officer shall attempt to
resolve by mutual agreement any claim of a recipient's indebtedness to
the United States arising out of a grant or cooperative agreement (e.g.,
by a finding that a recipient was paid funds in excess of the amount to
which the recipient was entitled under the terms and conditions of the
award).
[[Page 82]]
(c) Grants officer's decision. In the absence of such mutual
agreement, any claim of a recipient's indebtedness shall be the subject
of a grants officer decision, in accordance with Sec. 22.815(b)(2). The
grants officer shall prepare and transmit to the recipient a written
notice that:
(1) Describes the debt, including the amount, the name and address
of the official who determined the debt (e.g., the grants officer under
Sec. 22.815(d)), and a copy of that determination.
(2) Informs the recipient that:
(i) Within 30 calendar days of the grants officer's decision, the
recipient shall either pay the amount owed to the grants officer (at the
address that was provided pursuant to paragraph (c)(1) of this section)
or inform the grants officer of the recipient's intention to appeal the
decision.
(ii) If the recipient elects not to appeal, any amounts not paid
within 30 calendar days of the grants officer's decision will be a
delinquent debt.
(iii) If the recipient elects to appeal the grants officer's
decision the recipient has 90 calendar days, or 150 calendar days if ADR
procedures are used, after receipt of the grants officer's decision to
file the appeal, in accordance with Sec. 22.815(e)(3)(i).
(iv) The debt will bear interest, and may include penalties and
other administrative costs, in accordance with the debt collection
provisions in Chapters 29, 31, and 32 of Volume 5 and Chapters 18 and 19
of Volume 10 of the DoD Financial Management Regulation (DoD 7000.14-R).
No interest will be charged if the recipient pays the amount owed within
30 calendar days of the grants officer's decision. Interest will be
charged for the entire period from the date the decision was mailed, if
the recipient pays the amount owed after 30 calendar days.
(d) Follow-up. Depending upon the response from the recipient, the
grants officer shall proceed as follows:
(1) If the recipient pays the amount owed within 30 calendar days to
the grants officer, the grants officer shall forward the payment to the
responsible payment office.
(2) If within 30 calendar days the recipient elects to appeal the
grants officer's decision, further action to collect the debt is
deferred, pending the outcome of the appeal. If the final result of the
appeal is a determination that the recipient owes a debt to the Federal
Government, the grants officer shall send a demand letter to the
recipient and transfer responsibility for further debt collection to a
payment office, as described in paragraph (d)(3) of this section.
(3) If within 30 calendar days the recipient has neither paid the
amount due nor provided notice of intent to file an appeal of the grants
officer's decision, the grants officer shall send a demand letter to the
recipient, with a copy to the payment office that will be responsible
for collecting the delinquent debt. The payment office will be
responsible for any further debt collection activity, including issuance
of additional demand letters (see Chapter 19 of volume 10 of the DoD
Financial Management Regulation, DoD 7000.14-R). The grants officer's
demand letter shall:
(i) Describe the debt, including the amount, the name and address of
the official that determined the debt (e.g., the grants officer under
Sec. 22.815(d)), and a copy of that determination.
(ii) Notify the recipient that the debt is a delinquent debt that
bears interest from the date of the grants officer's decision, and that
penalties and other administrative costs may be assessed.
(iii) Identify the payment office that is responsible for the
collection of the debt, and notify the recipient that it may submit a
proposal to that payment office to defer collection, if immediate
payment is not practicable.
(e) Administrative offset. In carrying out the responsibility for
collecting delinquent debts, a disbursing officer may need to consult
grants officers, to determine whether administrative offset against
payments to a recipient owing a delinquent debt would interfere with
execution of projects being carried out under grants or cooperative
agreements. Disbursing officers may also ask grants officers whether it
is feasible to convert payment methods under grants or cooperative
agreements from advance payments to reimbursements, to facilitate use of
administrative offset. Grants officers therefore should be familiar with
guidelines
[[Page 83]]
for disbursing officers, in Chapter 19 of Volume 10 of the Financial
Management Regulation (DoD 7000.14-R), concerning withholding and
administrative offset to recover delinquent debts.
Sec. 22.825 Closeout audits.
(a) Purpose. This section establishes DoD policy for obtaining
audits at closeout of individual grants and cooperative agreements. It
thereby supplements the closeout procedures specified in:
(1) 32 CFR 32.71 and 32.72, for awards to institutions of higher
education and other nonprofit organizations.
(2) 32 CFR 33.50 and 33.51, for awards to State and local
governments.
(3) 32 CFR 34.61 and 34.62, for awards to for-profit entities.
(b) Policy. Grants officers shall use their judgment on a case-by-
case basis, in deciding whether to obtain an audit prior to closing out
a grant or cooperative agreement (i.e., there is no specific DoD
requirement to obtain an audit prior to doing so). Factors to be
considered include:
(1) The amount of the award.
(2) DoD's past experience with the recipient, including the presence
or lack of findings of material deficiencies in recent:
(i) Audits of individual awards; or
(ii) Systems-wide financial audits and audits of the compliance of
the recipient's systems with Federal requirements, under OMB Circular A-
133, where that Circular is applicable. (See Sec. 22.715(a)(1)).
[[Page 84]]
Appendix A to Part 22--Proposal Provision for Required Certifications
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Appendix B to Part 22--Suggested Award Provisions for National Policy
Requirements That Often Apply
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Appendix C to Part 22--Administrative Requirements and Issues To Be
Addressed in Award Terms and Conditions
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[65 FR 14411, Mar. 16, 2000]
[[Page 97]]
PART 25--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND
GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of
Contents
Subpart A--General
Sec.
25.100 Purpose.
25.105 Definitions.
25.110 Coverage.
25.115 Policy.
Subpart B--Effect of Action
25.200 Debarment or suspension.
25.205 Ineligible persons.
25.210 Voluntary exclusion.
25.215 Exception provision.
25.220 Continuation of covered transactions.
25.225 Failure to adhere to restrictions.
Subpart C--Debarment
25.300 General.
25.305 Causes for debarment.
25.310 Procedures.
25.311 Investigation and referral.
25.312 Notice of proposed debarment.
25.313 Opportunity to contest proposed debarment.
25.314 Debarring official's decision.
25.315 Settlement and voluntary exclusion.
25.320 Period of debarment.
25.325 Scope of debarment.
Subpart D--Suspension
25.400 General.
25.405 Causes for suspension.
25.410 Procedures.
25.411 Notice of suspension.
25.412 Opportunity to contest suspension.
25.413 Suspending official's decision.
25.415 Period of suspension.
25.420 Scope of suspension.
Subpart E--Responsibilities of GSA, Agencies and Participants
25.500 GSA responsibilities.
25.505 Military Departments and Defense Agencies' responsibility.
25.510 Participants' responsibilities.
Subpart F--Drug-Free Workplace Requirements (Grants)
25.600 Purpose.
25.605 Definitions.
25.610 Coverage.
25.615 Grounds for suspension of payments, suspension or termination of
grants, or suspension or debarment.
25.616 Determinations of grantee violations.
25.620 Effect of violation.
25.625 Exception provision.
25.630 Certification requirements and procedures.
25.635 Reporting of and employee sanctions for convictions of criminal
drug offenses.
Appendix A to Part 25--Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 25--Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Covered
Transactions
Appendix C to Part 25--Certification Regarding Drug-Free Workplace
Requirements
Authority: 41 U.S.C. 701 et seq.; sec. 2455, Pub. L. 103-355, 108
Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549, 3 CFR, 1986 Comp.; 189;
E.O. 12689, 3 CFR, 1989 Comp., p. 235.
Source: 53 FR 19190 and 19204, May 26, 1988, unless otherwise noted.
Redesignated at 57 FR 6199, Feb. 21, 1992.
Cross Reference: See also Office of Management and Budget notice
published at 55 FR 21697, May 25, 1990, and 60 FR 33036, June 26, 1995.
Subpart A--General
Sec. 25.100 Purpose.
(a) Executive Order (E.O.) 12549 provides that, to the extent
permitted by law, Executive departments and agencies shall participate
in a governmentwide system for nonprocurement debarment and suspension.
A person who is debarred or suspended shall be excluded from Federal
financial and nonfinancial assistance and benefits under Federal
programs and activities. Debarment or suspension of a participant in a
program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of E.O. 12549 and the
guidelines promulgated by the Office of Management and Budget under
section 6 of the E.O. by:
(1) Prescribing the programs and activities that are covered by the
governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide
minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended
participants, participants declared ineligible (see
[[Page 98]]
definition of ``ineligible'' in Sec. 25.105), and participants who have
voluntarily excluded themselves from participation in covered
transactions;
(4) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective
implementation and administration of the governmentwide system.
(c) These regulations also implement Executive Order 12689 (3 CFR,
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec.
2455, 108 Stat. 3327) by--
(1) Providing for the inclusion in the List of Parties Excluded from
Federal Procurement and Nonprocurement Programs all persons proposed for
debarment, debarred or suspended under the Federal Acquisition
Regulation, 48 CFR Part 9, subpart 9.4; persons against which
governmentwide exclusions have been entered under this part; and persons
determined to be ineligible; and
(2) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion.
(d) Although these regulations cover the listing of ineligible
participants and the effect of such listing, they do not prescribe
policies and procedures governing declarations of ineligibility.
[60 FR 33040, 33053, June 26, 1995]
Sec. 25.105 Definitions.
The following definitions apply to this part:
Adequate evidence. Information sufficient to support the reasonable
belief that a particular act or omission has occurred.
Affiliate. Persons are affiliates of each other if, directly or
indirectly, either one controls or has the power to control the other,
or, a third person controls or has the power to control both. Indicia of
control include, but are not limited to: interlocking management or
ownership, identity of interests among family members, shared facilities
and equipment, common use of employees, or a business entity organized
following the suspension or debarment of a person which has the same or
similar management, ownership, or principal employees as the suspended,
debarred, ineligible, or voluntarily excluded person.
Agency. Any executive department, military department or defense
agency or other agency of the executive branch, excluding the
independent regulatory agencies.
(a) The meaning of agency in Subpart F of this part, Drug-Free
Workplace Requirements, is given at Sec. 25.605(b)(6) and is different
than the meaning given in this section for subparts A through E of this
part. Agency in Subpart F of this part means the Department of Defense
or a Military Department only, and does not include any Defense Agency.
(b) [Reserved]
Civil judgment. The disposition of a civil action by any court of
competent jurisdiction, whether entered by verdict, decision,
settlement, stipulation, or otherwise creating a civil liability for the
wrongful acts complained of; or a final determination of liability under
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
Conviction. A judgment or conviction of a criminal offense by any
court of competent jurisdiction, whether entered upon a verdict or a
plea, including a plea of nolo contendere.
Debarment. An action taken by a debarring official in accordance
with these regulations to exclude a person from participating in covered
transactions. A person so excluded is ``debarred.''
Debarring official. An official authorized to impose debarment. The
debarring official is either:
(a) The agency head, or
(b) An official designated by the agency head.
(c) DoD Components' debarring officials for nonprocurement
transactions are the same officials identified in 48 CFR part 209,
subpart 209.4, as debarring officials for procurement contracts.
Indictment. Indictment for a criminal offense. An information or
other filing by competent authority charging a criminal offense shall be
given the same effect as an indictment.
Ineligible. Excluded from participation in Federal nonprocurement
programs pursuant to a determination of
[[Page 99]]
ineligibility under statutory, executive order, or regulatory authority,
other than Executive Order 12549 and its agency implementing
regulations; for exemple, excluded pursuant to the Davis-Bacon Act and
its implementing regulations, the equal employment opportunity acts and
executive orders, or the environmental protection acts and executive
orders. A person is ineligible where the determination of ineligibility
affects such person's eligibility to participate in more than one
covered transaction.
Legal proceedings. Any criminal proceeding or any civil judicial
proceeding to which the Federal Government or a State or local
government or quasi-governmental authority is a party. The term includes
appeals from such proceedings.
List of Parties Excluded from Federal Procurement and Nonprocurement
Programs. A list compiled, maintained and distributed by the General
Services Administration (GSA) containing the names and other information
about persons who have been debarred, suspended, or voluntarily excluded
under Executive Orders 12549 and 12689 and these regulations or 48 CFR
part 9, subpart 9.4, persons who have been proposed for debarment under
48 CFR part 9, subpart 9.4, and those persons who have been determined
to be ineligible.
Notice. A written communication served in person or sent by
certified mail, return receipt requested, or its equivalent, to the last
known address of a party, its identified counsel, its agent for service
of process, or any partner, officer, director, owner, or joint venturer
of the party. Notice, if undeliverable, shall be considered to have been
received by the addressee five days after being properly sent to the
last address known by the agency.
Participant. Any person who submits a proposal for, enters into, or
reasonably may be expected to enter into a covered transaction. This
term also includes any person who acts on behalf of or is authorized to
commit a participant in a covered transaction as an agent or
representative of another participant.
Person. Any individual, corporation, partnership, association, unit
of government or legal entity, however organized, except: foreign
governments or foreign governmental entities, public international
organizations, foreign government owned (in whole or in part) or
controlled entities, and entities consisting wholly or partially of
foreign governments or foreign governmental entities.
Preponderance of the evidence. Proof by information that, compared
with that opposing it, leads to the conclusion that the fact at issue is
more probably true than not.
Principal. Officer, director, owner, partner, key employee, or other
person within a participant with primary management or supervisory
responsibilities; or a person who has a critical influence on or
substantive control over a covered transaction, whether or not employed
by the participant. Persons who have a critical influence on or
substantive control over a covered transaction are:
(a) Principal investigators.
(b) Reserved.
Proposal. A solicited or unsolicited bid, application, request,
invitation to consider or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or
indirectly, in or under a covered transaction.
Respondent. A person against whom a debarment or suspension action
has been initiated.
State. Any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession
of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers that instrumentality to be an agency of the
State government.
Suspending official. An official authorized to impose suspension.
The suspending official is either:
(a) The agency head, or
(b) An official designated by the agency head.
(c) DoD Components' suspending officials for nonprocurement
transactions are the same officials identified in 48
[[Page 100]]
CFR part 209, subpart 209.4, as suspending officials for procurement
contracts.
Suspension. An action taken by a suspending official in accordance
with these regulations that immediately excludes a person from
participating in covered transactions for a temporary period, pending
completion of an investigation and such legal, debarment, or Program
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded
is ``suspended.''
Voluntary exclusion or voluntarily excluded. A status of
nonparticipation or limited participation in covered transactions
assumed by a person pursuant to the terms of a settlement.
[53 FR 19190 and 19204, May 26, 1988. Redesignated at 57 FR 6199, Feb.
21, 1992, and amended at 60 FR 33041, 33053, June 26, 1995]
Sec. 25.110 Coverage.
(a) These regulations apply to all persons who have participated,
are currently participating or may reasonably be expected to participate
in transactions under Federal nonprocurement programs. For purposes of
these regulations such transactions will be referred to as ``covered
transactions.''
(1) Covered transaction. For purposes of these regulations, a
covered transaction is a primary covered transaction or a lower tier
covered transaction. Covered transactions at any tier need not involve
the transfer of Federal funds.
(i) Primary covered transaction. Except as noted in paragraph (a)(2)
of this section, a primary covered transaction is any nonprocurement
transaction between an agency and a person, regardless of type,
including: grants, cooperative agreements, scholarships, fellowships,
contracts of assistance, loans, loan guarantees, subsidies, insurance,
payments for specified use, donation agreements and any other
nonprocurement transactions between a Federal agency and a person.
Primary covered transactions also include those transactions specially
designated by the U.S. Department of Housing and Urban Development in
such agency's regulations governing debarment and suspension.
(ii) Lower tier covered transaction. A lower tier covered
transaction is:
(A) Any transaction between a participant and a person other than a
procurement contract for goods or services, regardless of type, under a
primary covered transaction.
(B) Any procurement contract for goods or services between a
participant and a person, regardless of type, expected to equal or
exceed the Federal procurement small purchase threshold fixed at 10
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary
covered transaction.
(C) Any procurement contract for goods or services between a
participant and a person under a covered transaction, regardless of
amount, under which that person will have a critical influence on or
substantive control over that covered transaction. Such persons are:
(1) Principal investigators.
(2) Providers of federally-required audit services.
(2) Exceptions. The following transactions are not covered:
(i) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(ii) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, entities
consisting wholly or partially of foreign governments or foreign
governmental entities;
(iii) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental
operations; and
(vii) Other transactions where the application of these regulations
would be prohibited by law.
(b) Relationship to other sections. This section describes the types
of transactions to which a debarment or suspension under the regulations
will
[[Page 101]]
apply. Subpart B, ``Effect of Action,'' Sec. 25.200, ``Debarment or
suspension,'' sets forth the consequences of a debarment or suspension.
Those consequences would obtain only with respect to participants and
principals in the covered transactions and activities described in
Sec. 25.110(a). Sections 25.325, ``Scope of debarment,'' and 25.420,
``Scope of suspension,'' govern the extent to which a specific
participant or organizational elements of a participant would be
automatically included within a debarment or suspension action, and the
conditions under which affiliates or persons associated with a
participant may also be brought within the scope of the action.
(c) Relationship to Federal procurement activities. In accordance
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment,
suspension, proposed debarment or other governmentwide exclusion
initiated under the Federal Acquisition Regulation (FAR) on or after
August 25, 1995 shall be recognized by and effective for Executive
Branch agencies and participants as an exclusion under this regulation.
Similarly, any debarment, suspension or other governmentwide exclusion
initiated under this regulation on or after August 25, 1995 shall be
recognized by and effective for those agencies as a debarment or
suspension under the FAR.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199, Feb. 21, 1992; 60 FR 33041, 33053, June 26, 1995]
Sec. 25.115 Policy.
(a) In order to protect the public interest, it is the policy of the
Federal Government to conduct business only with responsible persons.
Debarment and suspension are discretionary actions that, taken in
accordance with Executive Order 12549 and these regulations, are
appropriate means to implement this policy.
(b) Debarment and suspension are serious actions which shall be used
only in the public interest and for the Federal Government's protection
and not for purposes of punishment. Agencies may impose debarment or
suspension for the causes and in accordance with the procedures set
forth in these regulations.
(c) When more than one agency has an interest in the proposed
debarment or suspension of a person, consideration shall be given to
designating one agency as the lead agency for making the decision.
Agencies are encouraged to establish methods and procedures for
coordinating their debarment or suspension actions.
Subpart B--Effect of Action
Sec. 25.200 Debarment or suspension.
(a) Primary covered transactions. Except to the extent prohibited by
law, persons who are debarred or suspended shall be excluded from
primary covered transactions as either participants or principals
throughout the Executive Branch of the Federal Government for the period
of their debarment, suspension, or the period they are proposed for
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall
enter into primary covered transactions with such excluded persons
during such period, except as permitted pursuant to Sec. 25.215.
(b) Lower tier covered transactions. Except to the extent prohibited
by law, persons who have been proposed for debarment under 48 CFR part
9, subpart 9.4, debarred or suspended shall be excluded from
participating as either participants or principals in all lower tier
covered transactions (see Sec. 25.110(a)(1)(ii)) for the period of their
exclusion.
(c) Exceptions. Debarment or suspension does not affect a person's
eligibility for--
(1) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, and
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility
[[Page 102]]
(but benefits received in an individual's business capacity are not
excepted);
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental
operations; and
(7) Other transactions where the application of these regulations
would be prohibited by law.
[60 FR 33041, 33053, June 26, 1995]
Sec. 25.205 Ineligible persons.
Persons who are ineligible, as defined in Sec. 25.105(i), are
excluded in accordance with the applicable statutory, executive order,
or regulatory authority.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.210 Voluntary exclusion.
Persons who accept voluntary exclusions under Sec. 25.315 are
excluded in accordance with the terms of their settlements. Military
Departments and Defense Agencies shall, and participants may, contact
the original action agency to ascertain the extent of the exclusion.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.215 Exception provision.
Military Departments & Defense Agencies may grant an exception
permitting a debarred, suspended, or voluntarily excluded person, or a
person proposed for debarment under 48 CFR part 9, subpart 9.4, to
participate in a particular covered transaction upon a written
determination by the agency head or an authorized designee stating the
reason(s) for deviating from the Presidential policy established by
Executive Order 12549 and Sec. 25.200. However, in accordance with the
President's stated intention in the Executive Order, exceptions shall be
granted only infrequently. Exceptions shall be reported in accordance
with Sec. 25.505(a).
[60 FR 33041, 33053, June 26, 1995]
Sec. 25.220 Continuation of covered transactions.
(a) Notwithstanding the debarment, suspension, proposed debarment
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or
voluntary exclusion of any person by an agency, agencies and
participants may continue covered transactions in existence at the time
the person was debarred, suspended, proposed for debarment under 48 CFR
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A
decision as to the type of termination action, if any, to be taken
should be made only after thorough review to ensure the propriety of the
proposed action.
(b) Agencies and participants shall not renew or extend covered
transactions (other than no-cost time extensions) with any person who is
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart
9.4, ineligible or voluntary excluded, except as provided in
Sec. 25.215.
[60 FR 33041, 33053, June 26, 1995]
Sec. 25.225 Failure to adhere to restrictions.
(a) Except as permitted under Sec. 25.215 or Sec. 25.220, a
participant shall not knowingly do business under a covered transaction
with a person who is--
(1) Debarred or suspended;
(2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
(3) Ineligible for or voluntarily excluded from the covered
transaction.
(b) Violation of the restriction under paragraph (a) of this section
may result in disallowance of costs, annulment or termination of award,
issuance of a stop work order, debarment or suspension, or other
remedies as appropriate.
(c) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, proposed for debarment under 48
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the
covered transaction (See Appendix B of these regulations), unless it
knows that the certification is erroneous. An agency has the burden of
proof that a participant did knowingly
[[Page 103]]
do business with a person that filed an erroneous certification.
[60 FR 33041, 33053, June 26, 1995]
Subpart C--Debarment
Sec. 25.300 General.
The debarring official may debar a person for any of the causes in
Sec. 25.305, using procedures established in Secs. 25.310 through
25.314. The existence of a cause for debarment, however, does not
necessarily require that the person be debarred; the seriousness of the
person's acts or omissions and any mitigating factors shall be
considered in making any debarment decision.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.305 Causes for debarment.
Debarment may be imposed in accordance with the provisions of
Secs. 25.300 through 25.314 for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, or obstruction of
justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a person.
(b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as:
(1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction.
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, the effective date of these regulations, or a
procurement debarment by any Federal agency taken pursuant to 48 CFR
subpart 9.4;
(2) Knowingly doing business with a debarred, suspended, ineligible,
or voluntarily excluded person, in connection with a covered
transaction, except as permitted in Sec. 25.215 or Sec. 25.220;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 25.315 or of any settlement of a
debarment or suspension action; or
(5) Violation of any requirement of subpart F of this part, relating
to providing a drug-free workplace, as set forth in Sec. 25.615 of this
part.
(d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.
[53 FR 19190 and 19204, May 26, 1988, as amended at 54 FR 4950, 4960,
Jan. 31, 1989. Redesignated and amended at 57 FR 6199 and 6200, Feb. 21,
1992]
Sec. 25.310 Procedures.
Military Departments and Defense Agencies shall process debarment
actions as informally as practicable, consistent with the principles of
fundamental fairness, using the procedures in Secs. 25.311 through
25.314.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
[[Page 104]]
Sec. 25.311 Investigation and referral.
Information concerning the existence of a cause for debarment from
any source shall be promptly reported, investigated, and referred, when
appropriate, to the debarring official for consideration. After
consideration, the debarring official may issue a notice of proposed
debarment.
Sec. 25.312 Notice of proposed debarment.
A debarment proceeding shall be initiated by notice to the
respondent advising:
(a) That debarment is being considered;
(b) Of the reasons for the proposed debarment in terms sufficient to
put the respondent on notice of the conduct or transaction(s) upon which
it is based;
(c) Of the cause(s) relied upon under Sec. 25.305 for proposing
debarment;
(d) Of the provisions of Secs. 25.311 through 25.314, and any other
Military Departments and Defense Agencies procedures, if applicable,
governing debarment decisionmaking; and
(e) Of the potential effect of a debarment.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.313 Opportunity to contest proposed debarment.
(a) Submission in opposition. Within 30 days after receipt of the
notice of proposed debarment, the respondent may submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment.
(b) Additional proceedings as to disputed material facts. (1) In
actions not based upon a conviction or civil judgment, if the debarring
official finds that the respondent's submission in opposition raises a
genuine dispute over facts material to the proposed debarment,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents.
(2) A transcribed record of any additional proceedings shall be made
available at cost to the respondent, upon request, unless the respondent
and the agency, by mutual agreement, waive the requirement for a
transcript.
Sec. 25.314 Debarring official's decision.
(a) No additional proceedings necessary. In actions based upon a
conviction or civil judgment, or in which there is no genuine dispute
over material facts, the debarring official shall make a decision on the
basis of all the information in the administrative record, including any
submission made by the respondent. The decision shall be made within 45
days after receipt of any information and argument submitted by the
respondent, unless the debarring official extends this period for good
cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The debarring
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any such findings, in whole or in part, only after specifically
determining them to be arbitrary and capricious or clearly erroneous.
(3) The debarring official's decision shall be made after the
conclusion of the proceedings with respect to disputed facts.
(c) (1) Standard of proof. In any debarment action, the cause for
debarment must be established by a preponderance of the evidence. Where
the proposed debarment is based upon a conviction or civil judgment, the
standard shall be deemed to have been met.
(2) Burden of proof. The burden of proof is on the agency proposing
debarment.
(d) Notice of debarring official's decision. (1) If the debarring
official decides to impose debarment, the respondent shall be given
prompt notice:
(i) Referring to the notice of proposed debarment;
(ii) Specifying the reasons for debarment;
[[Page 105]]
(iii) Stating the period of debarment, including effective dates;
and
(iv) Advising that the debarment is effective for covered
transactions throughout the executive branch of the Federal Government
unless an agency head or an authorized designee makes the determination
referred to in Sec. 25.215.
(2) If the debarring official decides not to impose debarment, the
respondent shall be given prompt notice of that decision. A decision not
to impose debarment shall be without prejudice to a subsequent
imposition of debarment by any other agency.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.315 Settlement and voluntary exclusion.
(a) When in the best interest of the Government, Military
Departments and Defense Agencies may, at any time, settle a debarment or
suspension action.
(b) If a participant and the agency agree to a voluntary exclusion
of the participant, such voluntary exclusion shall be entered on the
Nonprocurement List (see subpart E).
Sec. 25.320 Period of debarment.
(a) Debarment shall be for a period commensurate with the
seriousness of the cause(s). If a suspension precedes a debarment, the
suspension period shall be considered in determining the debarment
period.
(1) Debarment for causes other than those related to a violation of
the requirements of subpart F of this part generally should not exceed
three years. Where circumstances warrant, a longer period of debarment
may be imposed.
(2) In the case of a debarment for a violation of the requirements
of subpart F of this part (see Sec. 25.305(c)(5)), the period of
debarment shall not exceed five years.
(b) The debarring official may extend an existing debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest. However, a debarment may not
be extended solely on the basis of the facts and circumstances upon
which the initial debarment action was based. If debarment for an
additional period is determined to be necessary, the procedures of
Secs. 25.311 through 25.314 shall be followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the
debarment decision or to reduce the period or scope of debarment. Such a
request shall be in writing and supported by documentation. The
debarring official may grant such a request for reasons including, but
not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was imposed;
or
(5) Other reasons the debarring official deems appropriate.
[53 FR 19190 and 19204, May 26, 1988, as amended at 54 FR 4950, 4960,
Jan. 31, 1989. Redesignated and amended at 57 FR 6199 and 6200, Feb. 21,
1992]
Sec. 25.325 Scope of debarment.
(a) Scope in general. (1) Debarment of a person under these
regulations constitutes debarment of all its divisions and other
organizational elements from all covered transactions, unless the
debarment decision is limited by its terms to one or more specifically
identified individuals, divisions or other organizational elements or to
specific types of transactions.
(2) The debarment action may include any affiliate of the
participant that is specifically named and given notice of the proposed
debarment and an opportunity to respond (see Secs. 25.311 through
25.314).
(b) Imputing conduct. For purposes of determining the scope of
debarment, conduct may be imputed as follows:
(1) Conduct imputed to participant. The fraudulent, criminal or
other seriously improper conduct of any officer, director, shareholder,
partner, employee, or other individual associated with a participant may
be imputed to the participant when the conduct occurred in connection
with the individual's performance of duties for or on behalf of the
[[Page 106]]
participant, or with the participant's knowledge, approval, or
acquiescence. The participant's acceptance of the benefits derived from
the conduct shall be evidence of such knowledge, approval, or
acquiescence.
(2) Conduct imputed to individuals associated with participant. The
fraudulent, criminal, or other seriously improper conduct of a
participant may be imputed to any officer, director, shareholder,
partner, employee, or other individual associated with the participant
who participated in, knew of, or had reason to know of the participant's
conduct.
(3) Conduct of one participant imputed to other participants in a
joint venture. The fraudulent, criminal, or other seriously improper
conduct of one participant in a joint venture, grant pursuant to a joint
application, or similar arrangement may be imputed to other participants
if the conduct occurred for or on behalf of the joint venture, grant
pursuant to a joint application, or similar arrangement may be imputed
to other participants if the conduct occurred for or on behalf of the
joint venture, grant pursuant to a joint application, or similar
arrangement or with the knowledge, approval, or acquiescence of these
participants. Acceptance of the benefits derived from the conduct shall
be evidence of such knowledge, approval, or acquiescence.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Subpart D--Suspension
Sec. 25.400 General.
(a) The suspending official may suspend a person for any of the
causes in Sec. 25.405 using procedures established in Secs. 25.410
through 25.413.
(b) Suspension is a serious action to be imposed only when:
(1) There exists adequate evidence of one or more of the causes set
out in Sec. 25.405, and
(2) Immediate action is necessary to protect the public interest.
(c) In assessing the adequacy of the evidence, the agency should
consider how much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated,
and what inferences can reasonably be drawn as a result. This assessment
should include an examination of basic documents such as grants,
cooperative agreements, loan authorizations, and contracts.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.405 Causes for suspension.
(a) Suspension may be imposed in accordance with the provisions of
Secs. 25.400 through 25.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in
Sec. 25.305(a); or
(2) That a cause for debarment under Sec. 25.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of
suspension actions.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.410 Procedures.
(a) Investigation and referral. Information concerning the existence
of a cause for suspension from any source shall be promptly reported,
investigated, and referred, when appropriate, to the suspending official
for consideration. After consideration, the suspending official may
issue a notice of suspension.
(b) Decisionmaking process. Military Departments and Defense
Agencies shall process suspension actions as informally as practicable,
consistent with principles of fundamental fairness, using the procedures
in Secs. 25.411 through 25.413.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.411 Notice of suspension.
When a respondent is suspended, notice shall immediately be given:
(a) That suspension has been imposed;
(b) That the suspension is based on an indictment, conviction, or
other adequate evidence that the respondent has committed irregularities
seriously reflecting on the propriety of further
[[Page 107]]
Federal Government dealings with the respondent;
(c) Describing any such irregularities in terms sufficient to put
the respondent on notice without disclosing the Federal Government's
evidence;
(d) Of the cause(s) relied upon under Sec. 25.405 for imposing
suspension;
(e) That the suspension is for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings;
(f) Of the provisions of Secs. 25.411 through 25.413 and any other
Military Departments and Defense Agencies procedures, if applicable,
governing suspension decisionmaking; and
(g) Of the effect of the suspension.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.412 Opportunity to contest suspension.
(a) Submission in opposition. Within 30 days after receipt of the
notice of suspension, the respondent may submit, in person, in writing,
or through a representative, information and argument in opposition to
the suspension.
(b) Additional proceedings as to disputed material facts. (1) If the
suspending official finds that the respondent's submission in opposition
raises a genuine dispute over facts material to the suspension,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents, unless:
(i) The action is based on an indictment, conviction or civil
judgment, or
(ii) A determination is made, on the basis of Department of Justice
advice, that the substantial interests of the Federal Government in
pending or contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
(2) A transcribed record of any additional proceedings shall be
prepared and made available at cost to the respondent, upon request,
unless the respondent and the agency, by mutual agreement, waive the
requirement for a transcript.
Sec. 25.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for
example, see Sec. 25.320(c) for reasons for reducing the period or scope
of debarment) or may leave it in force. However, a decision to modify or
terminate the suspension shall be without prejudice to the subsequent
imposition of suspension by any other agency or debarment by any agency.
The decision shall be rendered in accordance with the following
provisions:
(a) No additional proceedings necessary. In actions: based on an
indictment, conviction, or civil judgment; in which there is no genuine
dispute over material facts; or in which additional proceedings to
determine disputed material facts have been denied on the basis of
Department of Justice advice, the suspending official shall make a
decision on the basis of all the information in the administrative
record, including any submission made by the respondent. The decision
shall be made within 45 days after receipt of any information and
argument submitted by the respondent, unless the suspending official
extends this period for good cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The suspending
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part, only after
specifically determining them to be arbitrary or capricious or clearly
erroneous.
(c) Notice of suspending official's decision. Prompt written notice
of the suspending official's decision shall be sent to the respondent.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
[[Page 108]]
Sec. 25.415 Period of suspension.
(a) Suspension shall be for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings, unless terminated sooner by the
suspending official or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless an Assistant Attorney General or United States
Attorney requests its extension in writing, in which case it may be
extended for an additional six months. In no event may a suspension
extend beyond 18 months, unless such proceedings have been initiated
within that period.
(c) The suspending official shall notify the Department of Justice
of an impending termination of a suspension, at least 30 days before the
12-month period expires, to give that Department an opportunity to
request an extension.
Sec. 25.420 Scope of suspension.
The scope of a suspension is the same as the scope of a debarment
(see Sec. 25.325), except that the procedures of Secs. 25.410 through
25.413 shall be used in imposing a suspension.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Subpart E--Responsibilities of GSA, Agency and Participants
Sec. 25.500 GSA responsibilities.
(a) In accordance with the OMB guidelines, GSA shall compile,
maintain, and distribute a list of all persons who have been debarred,
suspended, or voluntarily excluded by agencies under Executive Order
12549 and these regulations, and those who have been determined to be
ineligible.
(b) At a minimum, this list shall indicate:
(1) The names and addresses of all debarred, suspended, ineligible,
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for each listing; and
(6) The agency and name and telephone number of the agency point of
contact for the action.
Sec. 25.505 Military Departments and Defense Agencies' responsibilities.
(a) The agency shall provide GSA with current information concerning
debarments, suspension, determinations of ineligibility, and voluntary
exclusions it has taken. Until February 18, 1989, the agency shall also
provide GSA and OMB with information concerning all transactions in
which Military Departments and Defense Agencies has granted exceptions
under Sec. 25.215 permitting participation by debarred, suspended, or
voluntarily excluded persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency
shall advise GSA of the information set forth in Sec. 25.500(b) and of
the exceptions granted under Sec. 25.215 within five working days after
taking such actions.
(c) The agency shall direct inquiries concerning listed persons to
the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before
entering covered transactions to determine whether a participant in a
primary transaction is debarred, suspended, ineligible, or voluntarily
excluded (Tel. ).
(e) Agency officials shall check the Nonprocurement List before
approving principals or lower tier participants where agency approval of
the principal or lower tier participant is required under the terms of
the transaction, to determine whether such principals or participants
are debarred, suspended, ineligible, or voluntarily excluded.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.510 Participants' responsibilities.
(a) Certification by participants in primary covered transactions.
Each participant shall submit the certification in
[[Page 109]]
appendix A to this part for it and its principals at the time the
participant submits its proposal in connection with a primary covered
transaction, except that States need only complete such certification as
to their principals. Participants may decide the method and frequency by
which they determine the eligibility of their principals. In addition,
each participant may, but is not required to, check the Nonprocurement
List for its principals (Tel. ). Adverse information on the
certification will not necessarily result in denial of participation.
However, the certification, and any additional information pertaining to
the certification submitted by the participant, shall be considered in
the administration of covered transactions.
(b) Certification by participants in lower tier covered
transactions. (1) Each participant shall require participants in lower
tier covered transactions to include the certification in appendix B to
this part for it and its principals in any proposal submitted in
connection with such lower tier covered transactions.
(2) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction by any Federal agency, unless it
knows that the certification is erroneous. Participants may decide the
method and frequency by which they determine the eligiblity of their
principals. In addition, a participant may, but is not required to,
check the Nonprocurement List for its principals and for participants
(Tel. ).
(c) Changed circumstances regarding certification. A participant
shall provide immediate written notice to Military Departments and
Defense Agencies if at any time the participant learns that its
certification was erroneous when submitted or has become erroneous by
reason of changed circumstances. Participants in lower tier covered
transactions shall provide the same updated notice to the participant to
which it submitted its proposals.
Subpart F--Drug-Free Workplace Requirements (Grants)
Source: 55 FR 21688, 21697, May 25, 1990, unless otherwise noted.
Redesignated at 57 FR 6199, Feb. 21, 1992.
Sec. 25.600 Purpose.
(a) The purpose of this subpart is to carry out the Drug-Free
Workplace Act of 1988 by requiring that--
(1) A grantee, other than an individual, shall certify to the agency
that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that,
as a condition of the grant, he or she will not engage in the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5,
and 52.2.
Sec. 25.605 Definitions.
(a) Except as amended in this section, the definitions of
Sec. 25.105 apply to this subpart.
(b) For purposes of this subpart--
(1) Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15;
(2) Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
(3) Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
(4) Drug-free workplace means a site for the performance of work
done in connection with a specific grant at which employees of the
grantee are prohibited from engaging in the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance;
[[Page 110]]
(5) Employee means the employee of a grantee directly engaged in the
performance of work under the grant, including:
(i) All direct charge employees;
(ii) All indirect charge employees, unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged
in the performance of work under the grant and who are on the grantee's
payroll.
This definition does not include workers not on the payroll of the
grantee (e.g., volunteers, even if used to meet a matching requirement;
consultants or independent contractors not on the payroll; or employees
of subrecipients or subcontractors in covered workplaces);
(6) Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency;
(7) Grant means an award of financial assistance, including a
cooperative agreement, in the form of money, or property in lieu of
money, by a Federal agency directly to a grantee. The term grant
includes block grant and entitlement grant programs, whether or not
exempted from coverage under the grants management government-wide
common rule on uniform administrative requirements for grants and
cooperative agreements. The term does not include technical assistance
that provides services instead of money, or other assistance in the form
of loans, loan guarantees, interest subsidies, insurance, or direct
appropriations; or any veterans' benefits to individuals, i.e., any
benefit to veterans, their families, or survivors by virtue of the
service of a veteran in the Armed Forces of the United States;
(8) Grantee means a person who applies for or receives a grant
directly from a Federal agency (except another Federal agency);
(9) Individual means a natural person;
(10) State means any of the States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers the instrumentality to be an agency of the
State government.
[55 FR 21688 and 21697, May. 25, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.610 Coverage.
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any grant, except where application of
this subpart would be inconsistent with the international obligations of
the United States or the laws or regulations of a foreign government. A
determination of such inconsistency may be made only by the agency head
or his/her designee.
(1) Heads of Defense Agencies, Heads of DoD Field Activities, and
their designees are authorized to make such determinations on behalf of
the Secretary of Defense.
(2) [Reserved]
(c) The provisions of subparts A, B, C, D and E of this part apply
to matters covered by this subpart, except where specifically modified
by this subpart. In the event of any conflict between provisions of this
subpart and other provisions of this part, the provisions of this
subpart are deemed to control with respect to the implementation of
drug-free workplace requirements concerning grants.
[53 FR 19190 and 19204, May 26, 1988. Redesignated and amended at 57 FR
6199, Feb. 21, 1992; 60 FR 33053, June 26, 1995]
[[Page 111]]
Sec. 25.615 Grounds for suspension of payments, suspension or termination
of grants, or suspension or debarment.
A grantee shall be deemed in violation of the requirements of this
subpart if the agency head or his or her official designee determines,
in writing, that--
(a) The grantee has made a false certification under Sec. 25.630;
(b) With respect to a grantee other than an individual--
(1) The grantee has violated the certification by failing to carry
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the
certification (Alternate I to Appendix C) or
(2) Such a number of employees of the grantee have been convicted of
violations of criminal drug statutes for violations occurring in the
workplace as to indicate that the grantee has failed to make a good
faith effort to provide a drug-free workplace.
(c) With respect to a grantee who is an individual--
(1) The grantee has violated the certification by failing to carry
out its requirements (Alternate II to Appendix C); or
(2) The grantee is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any grant activity.
[55 FR 21688 and 21697, May 25, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.616 Determinations of grantee violations.
Heads of Defense Agencies, Heads of DoD Field Activities, and their
designees are authorized to make determinations of grantee violations
under Sec. 25.615.
[60 FR 33053, June 26, 1995]
Sec. 25.620 Effect of violation.
(a) In the event of a violation of this subpart as provided in
Sec. 25.615, and in accordance with applicable law, the grantee shall be
subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
(3) Suspension or debarment of the grantee under the provisions of
this part.
(b) Upon issuance of any final decision under this part requiring
debarment of a grantee, the debarred grantee shall be ineligible for
award of any grant from any Federal agency for a period specified in the
decision, not to exceed five years (see Sec. 25.320(a)(2) of this part).
[55 FR 21688 and 21697, May 25, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 25.625 Exception provision.
The agency head may waive with respect to a particular grant, in
writing, a suspension of payments under a grant, suspension or
termination of a grant, or suspension or debarment of a grantee if the
agency head determines that such a waiver would be in the public
interest. This exception authority cannot be delegated to any other
official.
Sec. 25.630 Certification requirements and procedures.
(a)(1) As a prior condition of being awarded a grant, each grantee
shall make the appropriate certification to the Federal agency providing
the grant, as provided in Appendix C to this part.
(2) Grantees are not required to make a certification in order to
continue receiving funds under a grant awarded before March 18, 1989, or
under a no-cost time extension of such a grant. However, the grantee
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
(b) Except as provided in this section, all grantees shall make the
required certification for each grant. For mandatory formula grants and
entitlements that have no application process, grantees shall submit a
one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in
each Federal fiscal year. States that previously submitted an annual
certification are not required to make a certification for Fiscal Year
1990 until
[[Page 112]]
June 30, 1990. Except as provided in paragraph (d) of this section, this
certification shall cover all grants to all State agencies from any
Federal agency. The State shall retain the original of this statewide
certification in its Governor's office and, prior to grant award, shall
ensure that a copy is submitted individually with respect to each grant,
unless the Federal agency has designated a central location for
submission.
(d)(1) The Governor of a State may exclude certain State agencies
from the statewide certification and authorize these agencies to submit
their own certifications to Federal agencies. The statewide
certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not
apply, or a State agency in a State that does not have a statewide
certification, may elect to make one certification in each Federal
fiscal year. State agencies that previously submitted a State agency
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. The State agency shall retain the original of
this State agency-wide certification in its central office and, prior to
grant award, shall ensure that a copy is submitted individually with
respect to each grant, unless the Federal agency designates a central
location for submission.
(3) When the work of a grant is done by more than one State agency,
the certification of the State agency directly receiving the grant shall
be deemed to certify compliance for all workplaces, including those
located in other State agencies.
(e)(1) For a grant of less than 30 days performance duration,
grantees shall have this policy statement and program in place as soon
as possible, but in any case by a date prior to the date on which
performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees
shall have this policy statement and program in place within 30 days
after award.
(3) Where extraordinary circumstances warrant for a specific grant,
the grant officer may determine a different date on which the policy
statement and program shall be in place.
Sec. 25.635 Reporting of and employee sanctions for convictions of criminal
drug offenses.
(a) When a grantee other than an individual is notified that an
employee has been convicted for a violation of a criminal drug statute
occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction,
the grantee shall provide written notice, including the convicted
employee's position title, to every grant officer, or other designee on
whose grant activity the convicted employee was working, unless a
Federal agency has designated a central point for the receipt of such
notifications. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(2) Within 30 calendar days of receiving notice of the conviction,
the grantee shall do the following with respect to the employee who was
convicted.
(i) Take appropriate personnel action against the employee, up to
and including termination, consistent with requirements of the
Rehabilitation Act of 1973, as amended; or
(ii) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency.
(b) A grantee who is an individual who is convicted for a violation
of a criminal drug statute occurring during the conduct of any grant
activity shall report the conviction, in writing, within 10 calendar
days, to his or her Federal agency grant officer, or other designee,
unless the Federal agency has designated a central point for the receipt
of such notices. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(Approved by the Office of Management and Budget under control number
0991-0002)
[[Page 113]]
Appendix A to Part 25--Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
Instructions for Certification
1. By signing and submitting this proposal, the prospective primary
participant is providing the certification set out below.
2. The inability of a person to provide the certification required
below will not necessarily result in denial of participation in this
covered transaction. The prospective participant shall submit an
explanation of why it cannot provide the certification set out below.
The certification or explanation will be considered in connection with
the department or agency's determination whether to enter into this
transaction. However, failure of the prospective primary participant to
furnish a certification or an explanation shall disqualify such person
from participation in this transaction.
3. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or agency
determined to enter into this transaction. If it is later determined
that the prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
4. The prospective primary participant shall provide immediate
written notice to the department or agency to which this proposal is
submitted if at any time the prospective primary participant learns that
its certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
5. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meanings set out in the Definitions and Coverage
sections of the rules implementing Executive Order 12549. You may
contact the department or agency to which this proposal is being
submitted for assistance in obtaining a copy of those regulations.
6. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the
department or agency entering into this transaction.
7. The prospective primary participant further agrees by submitting
this proposal that it will include the clause titled ``Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency
entering into this covered transaction, without modification, in all
lower tier covered transactions and in all solicitations for lower tier
covered transactions.
8. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from the covered transaction, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to, check the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs.
9. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
10. Except for transactions authorized under paragraph 6 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
Certification Regarding Debarment, Suspension, and Other Responsibility
Matters--Primary Covered Transactions
(1) The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded by any Federal department
or agency;
(b) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal
or State antitrust statutes or commission of
[[Page 114]]
embezzlement, theft, forgery, bribery, falsification or destruction of
records, making false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph (1)(b) of this
certification; and
(d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local)
terminated for cause or default.
(2) Where the prospective primary participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
[60 FR 33042, June 26, 1995]
Appendix B to Part 25--Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions
Instructions for Certification
1. By signing and submitting this proposal, the prospective lower
tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in addition
to other remedies available to the Federal Government the department or
agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at
any time the prospective lower tier participant learns that its
certification was erroneous when submitted or had become erroneous by
reason of changed circumstances.
4. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meaning set out in the Definitions and Coverage
sections of rules implementing Executive Order 12549. You may contact
the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the
department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
``Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transaction,'' without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from covered transactions, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to, check the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
9. Except for transactions authorized under paragraph 5 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency with which this transaction
originated may pursue available remedies, including suspension and/or
debarment.
Certification Regarding Debarment, Suspension, Ineligibility an
Voluntary Exclusion--Lower Tier Covered Transactions
(1) The prospective lower tier participant certifies, by submission
of this proposal, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such prospective
[[Page 115]]
participant shall attach an explanation to this proposal.
[60 FR 33042, June 26, 1995]
Appendix C to Part 25--Certification Regarding Drug-Free Workplace
Requirements
Instructions for Certification
1. By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
2. The certification set out below is a material representation of
fact upon which reliance is placed when the agency awards the grant. If
it is later determined that the grantee knowingly rendered a false
certification, or otherwise violates the requirements of the Drug-Free
Workplace Act, the agency, in addition to any other remedies available
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals,
need not be identified on the certification. If known, they may be
identified in the grant application. If the grantee does not identify
the workplaces at the time of application, or upon award, if there is no
application, the grantee must keep the identity of the workplace(s) on
file in its office and make the information available for Federal
inspection. Failure to identify all known workplaces constitutes a
violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of
buildings (or parts of buildings) or other sites where work under the
grant takes place. Categorical descriptions may be used (e.g., all
vehicles of a mass transit authority or State highway department while
in operation, State employees in each local unemployment office,
performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the
performance of the grant, the grantee shall inform the agency of the
change(s), if it previously identified the workplaces in question (see
paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and
Debarment common rule and Drug-Free Workplace common rule apply to this
certification. Grantees' attention is called, in particular, to the
following definitions from these rules:
Controlled substance means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as
further defined by regulation (21 CFR 1308.11 through 1308.15);
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
Employee means the employee of a grantee directly engaged in the
performance of work under a grant, including: (i) All direct charge
employees; (ii) All indirect charge employees unless their impact or
involvement is insignificant to the performance of the grant; and, (iii)
Temporary personnel and consultants who are directly engaged in the
performance of work under the grant and who are on the grantee's
payroll. This definition does not include workers not on the payroll of
the grantee (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the grantee's
payroll; or employees of subrecipients or subcontractors in covered
workplaces).
Certification Regarding Drug-Free Workplace Requirements
Alternate I. (Grantees Other Than Individuals)
A. The grantee certifies that it will or will continue to provide a
drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the grantee's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform
employees about--
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
(d) Notifying the employee in the statement required by paragraph
(a) that, as a condition of employment under the grant, the employee
will--
(1) Abide by the terms of the statement; and
[[Page 116]]
(2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after
receiving notice under paragraph (d)(2) from an employee or otherwise
receiving actual notice of such conviction. Employers of convicted
employees must provide notice, including position title, to every grant
officer or other designee on whose grant activity the convicted employee
was working, unless the Federal agency has designated a central point
for the receipt of such notices. Notice shall include the identification
number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of
receiving notice under paragraph (d)(2), with respect to any employee
who is so convicted--
(1) Taking appropriate personnel action against such an employee, up
to and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency;
(g) Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (a), (b), (c), (d), (e)
and (f).
B. The grantee may insert in the space provided below the site(s)
for the performance of work done in connection with the specific grant:
Place of Performance (Street address, city, county, State, zip code)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Check [ballot] if there are workplaces on file that are not identified
here.
Alternate II. (Grantees Who Are Individuals)
(a) The grantee certifies that, as a condition of the grant, he or
she will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any grant activity, he or she
will report the conviction, in writing, within 10 calendar days of the
conviction, to every grant officer or other designee, unless the Federal
agency designates a central point for the receipt of such notices. When
notice is made to such a central point, it shall include the
identification number(s) of each affected grant.
[55 FR 21690, 21697, May 25, 1990. Redesignated at 57 FR 6200, Feb. 21,
1992]
PART 28--NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A--General
Sec.
28.100 Conditions on use of funds.
28.105 Definitions.
28.110 Certification and disclosure.
Subpart B--Activities by Own Employees
28.200 Agency and legislative liaison.
28.205 Professional and technical services.
28.210 Reporting.
Subpart C--Activities by Other Than Own Employees
28.300 Professional and technical services.
Subpart D--Penalties and Enforcement
28.400 Penalties.
28.405 Penalty procedures.
28.410 Enforcement.
Subpart E--Exemptions
28.500 Secretary of Defense.
Subpart F--Agency Reports
28.600 Semi-annual compilation.
28.605 Inspector General report.
Appendix A to Part 28--Certification Regarding Lobbying
Appendix B to Part 28--Disclosure Form to Report Lobbying
Authority: Section 319, Public Law 102-121 (31 U.S.C. 1352); 5
U.S.C. section 301; 10 U.S.C. 113.
Source: 55 FR 6737 and 6752, Feb. 26, 1990. Redesignated at 57 FR
6199, Feb. 21, 1992.
Cross reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Subpart A--General
Sec. 28.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a
[[Page 117]]
Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with any of the following covered
Federal actions: the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or
cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in Appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in Appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in Appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
Sec. 28.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included
[[Page 118]]
under the definitions of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 28.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
[[Page 119]]
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000,
Unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
Shall file a certification, and a disclosure form, if required, to the
next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B--Activities by Own Employees
Sec. 28.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec. 28.100
(a), does not apply in the case of a payment of reasonable compensation
made to an officer or employee of a person requesting or receiving a
Federal contract, grant, loan, or cooperative agreement
[[Page 120]]
if the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
[55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 28.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec. 28.100
(a), does not apply in the case of a payment of reasonable compensation
made to an officer or employee of a person requesting or receiving a
Federal contract, grant, loan, or cooperative agreement or an extension,
continuation, renewal, amendment, or modification of a Federal contract,
grant, loan, or cooperative agreement if payment is for professional or
technical services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
[[Page 121]]
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
[55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
Sec. 28.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C--Activities by Other Than Own Employees
Sec. 28.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec. 28.100
(a), does not apply in the case of any reasonable payment to a person,
other than an officer or employee of a person requesting or receiving a
covered Federal action, if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirments in Sec. 28.110 (a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
[55 FR 6737 and 6752, Feb. 26, 1990. Redesignated and amended at 57 FR
6199 and 6200, Feb. 21, 1992]
[[Page 122]]
Subpart D--Penalties and Enforcement
Sec. 28.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
Appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 28.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
Sec. 28.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E--Exemptions
Sec. 28.500 Secretary of Defense.
(a) Exemption authority. The Secretary of Defense may exempt, on a
case-by-case basis, a covered Federal action from the prohibition
whenever the Secretary determines, in writing, that such an exemption is
in the national interest. The Secretary shall transmit a copy of each
such written exemption to Congress immediately after making such a
determination.
(b) Policy. It is the policy of the Department of Defense that
exemptions under paragraph (a) of this section shall be requested only
rarely and in exceptional circumstances.
(c) Procedures. Each DoD Component that awards or administers
Federal grants, Federal cooperative agreements, or Federal loans subject
to this part shall establish procedures whereby:
(1) A grants officer wishing to request an exemption for a grant,
cooperative agreement, or loan shall transmit such request through
appropriate channels to: Director for Research, ODDR&E(R), 3080 Defense
Pentagon, Washington, DC. 20301-3080.
(2) Each such request shall explain why an exemption is in the
national interest, a justification that must be transmitted to Congress
for each exemption that is approved.
[63 FR 12188, Mar. 12, 1998]
Subpart F--Agency Reports
Sec. 28.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to
[[Page 123]]
the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 28.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
Appendix A to Part 28--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the
[[Page 124]]
extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
[[Page 125]]
Appendix B to Part 28--Disclosure Form to Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC23OC91.000
[[Page 126]]
[GRAPHIC] [TIFF OMITTED] TC23OC91.001
[[Page 127]]
[GRAPHIC] [TIFF OMITTED] TC23OC91.002
[[Page 128]]
PART 32--ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH
INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT
ORGANIZATIONS--Table of Contents
Subpart A--General
Sec.
32.1 Purpose.
32.2 Definitions
32.3 Effect on other issuances.
32.4 Deviations.
32.5 Subawards.
Subpart B--Pre-Award Requirements
32.10 Purpose.
32.11 Pre-award policies.
32.12 Forms for applying for Federal assistance.
32.13 Debarment and suspension.
32.14 Special award conditions.
32.15 Metric system of measurement.
32.16 Resource Conservation and Recovery Act (RCRA).
32.17 Certifications and representations.
Subpart C--Post-Award Requirements
Financial and Program Management
32.20 Purpose of financial and program management.
32.21 Standards for financial management systems.
32.22 Payment.
32.23 Cost sharing or matching.
32.24 Program income.
32.25 Revision of budget and program plans.
32.26 Non-Federal audits.
32.27 Allowable costs.
32.28 Period of availability of funds.
Property Standards
32.30 Purpose of property standards.
32.31 Insurance coverage.
32.32 Real property.
32.33 Federally-owned and exempt property.
32.34 Equipment.
32.35 Supplies.
32.36 Intangible property.
32.37 Property trust relationship.
Procurement Standards
32.40 Purpose of procurement standards.
32.41 Recipient responsibilities.
32.42 Codes of conduct.
32.43 Competition.
32.44 Procurement procedures.
32.45 Cost and price analysis.
32.46 Procurement records.
32.47 Contract administration.
32.48 Contract provisions.
32.49 Resource Conservation and Recovery Act.
Reports and Records
32.50 Purpose of reports and records.
32.51 Monitoring and reporting program performance.
32.52 Financial reporting.
32.53 Retention and access requirements for records.
Termination and Enforcement
32.60 Purpose of termination and enforcement.
32.61 Termination.
32.62 Enforcement.
Subpart D--After-the-Award Requirements
32.70 Purpose.
32.71 Closeout procedures.
32.72 Subsequent adjustments and continuing responsibilities.
32.73 Collection of amounts due.
Appendix A to Part 32--Contract Provisions
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Source: 63 FR 12188, Mar. 12, 1998, unless otherwise noted.
Subpart A--General
Sec. 32.1 Purpose.
(a) General. This part implements OMB Circular A-110 \1\ and
establishes uniform administrative requirements for awards and subawards
to institutions of higher education, hospitals, and other non-
governmental, non-profit organizations.
---------------------------------------------------------------------------
\1\ For copies of the Circular, contact the Office of Management and
Budget, EOP Publications, 725 17th St. NW, New Executive Office
Building, Washington, DC 20503.
---------------------------------------------------------------------------
(b) Relationship to other parts. This part is an integral part of
the DoD Grant and Agreement Regulations (DoDGARs), which comprise this
subchapter of the Code of Federal Regulations. This part includes
references to other parts of the DoDGARs that implement Governmentwide
guidance and provide uniform internal policies and procedures for DoD
Components that make or administer awards. Although parts 21 and 22 of
this subchapter do not impose any direct requirements on recipients, and
recipients therefore are not required to be familiar with those parts,
the information in those parts
[[Page 129]]
concerning internal policies and procedures should be helpful to
recipients of DoD awards.
(c) Prime awards. DoD Components shall apply the provisions of this
part to awards to recipients that are institutions of higher education,
hospitals, and other non-profit organizations. DoD Components shall not
impose additional or inconsistent requirements, except as provided in
Secs. 32.4 and 32.14, or unless specifically required by Federal statute
or executive order.
(d) Subawards. Any legal entity that receives an award from a DoD
Component shall apply the provisions of this part to subawards with
institutions of higher education, hospitals, and other non-profit
organizations. Thus, a governmental or for-profit organization, whose
prime award from a DoD Component is subject to 32 CFR part 33 or part
34, respectively, applies this part to subawards with institutions of
higher education, hospitals, or other non-profit organizations. It
should be noted that subawards are for the performance of substantive
work under awards, and are distinct from contracts for procuring goods
and services. It should be further noted that non-profit organizations
that implement Federal programs for the States are also subject to State
requirements.
Sec. 32.2 Definitions.
The following are definitions of terms used in this part. Grants
officers are cautioned that terms may be defined differently in this
part than they are in other parts of the DoD Grant and Agreement
Regulations, because this part implements OMB Circular A-110 and uses
definitions as stated in that Circular. In such cases, the definition
given in this section applies to the term as it is used in this part,
and the definition given in other parts applies to the term as it is
used in those parts. For example, suspension is defined in this section
to mean temporary withdrawal of Federal sponsorship under an award, but
is defined at 32 CFR 25.105 to be an action taken to exclude a person
from participating in a grant, cooperative agreement, or other covered
transaction.
Accrued expenditures. The charges incurred by the recipient during a
given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subrecipients, and
other payees; and
(3) Other amounts becoming owed under programs for which no current
services or performance is required.
Accrued income. The sum of:
(1) Earnings during a given period from:
(i) Services performed by the recipient; and
(ii) Goods and other tangible property delivered to purchasers.
(2) Amounts becoming owed to the recipient for which no current
services or performance is required by the recipient.
Acquisition cost of equipment. The net invoice price of the
equipment, including the cost of modifications, attachments,
accessories, or auxiliary apparatus necessary to make the property
usable for the purpose for which it was acquired. Other charges, such as
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit
acquisition cost in accordance with the recipient's regular accounting
practices.
Advance. A payment made by Treasury check or other appropriate
payment mechanism to a recipient upon its request either before outlays
are made by the recipient or through the use of predetermined payment
schedules.
Award. Financial assistance that provides support or stimulation to
accomplish a public purpose. Awards include grants and other agreements
in the form of money or property in lieu of money, by the Federal
Government to an eligible recipient. The term does not include:
Technical assistance, which provides services instead of money; other
assistance in the form of loans, loan guarantees, interest subsidies, or
insurance; direct payments of any kind to individuals; and, contracts
which are required to be entered into and administered under procurement
laws and regulations.
Cash contributions. The recipient's cash outlay, including the
outlay of
[[Page 130]]
money contributed to the recipient by third parties.
Closeout. The process by which the grants officer administering an
award made by a DoD Component determines that all applicable
administrative actions and all required work of the award have been
completed by the recipient and DoD Component.
Contract. A procurement contract under an award or subaward, and a
procurement subcontract under a recipient's or subrecipient's contract.
Cost sharing or matching. That portion of project or program costs
not borne by the Federal Government.
Date of completion. The date on which all work under an award is
completed or the date on the award document, or any supplement or
amendment thereto, on which Federal sponsorship ends.
Disallowed costs. Those charges to an award that the grants officer
administering an award made by a DoD Component determines to be
unallowable, in accordance with the applicable Federal cost principles
or other terms and conditions contained in the award.
DoD Component. A Military Department, Defense Agency, DoD field
activity, or organization within the Office of the Secretary of Defense
that provides or administers an award to a recipient.
Equipment. Tangible nonexpendable personal property including exempt
property charged directly to the award having a useful life of more than
one year and an acquisition cost of $5,000 or more per unit. However,
consistent with recipient policy, lower limits may be established.
Excess property. Property under the control of any DoD Component
that, as determined by the head thereof, is no longer required for its
needs or the discharge of its responsibilities.
Exempt property. Tangible personal property acquired in whole or in
part with Federal funds, where the DoD Component has statutory authority
to vest title in the recipient without further obligation to the Federal
Government. An example of exempt property authority is contained in the
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6306), for
property acquired under an award to conduct basic or applied research by
a non-profit institution of higher education or non-profit organization
whose principal purpose is conducting scientific research.
Federal funds authorized. The total amount of Federal funds
obligated by a DoD Component for use by the recipient. This amount may
include any authorized carryover of unobligated funds from prior funding
periods when permitted by agency regulations or agency implementing
instructions.
Federal share (of real property, equipment, or supplies). That
percentage of the property's acquisition costs and any improvement
expenditures paid with Federal funds.
Funding period. The period of time when Federal funding is available
for obligation by the recipient.
Intangible property and debt instruments. Property that includes,
but is not limited to, trademarks, copyrights, patents and patent
applications and such property as loans, notes and other debt
instruments, lease agreements, stock and other instruments of property
ownership, whether considered tangible or intangible.
Obligations. The amounts of orders placed, contracts and grants
awarded, services received and similar transactions during a given
period that require payment by the recipient during the same or a future
period.
Outlays or expenditures. Charges made to the project or program.
They may be reported on a cash or accrual basis. For reports prepared on
a cash basis, outlays are the sum of cash disbursements for direct
charges for goods and services, the amount of indirect expense charged,
the value of third party in-kind contributions applied and the amount of
cash advances and payments made to subrecipients. For reports prepared
on an accrual basis, outlays are the sum of cash disbursements for
direct charges for goods and services, the amount of indirect expense
incurred, the value of in-kind contributions applied, and the net
increase (or decrease) in the amounts owed by the recipient for goods
and other property received, for services performed by employees,
contractors, subrecipients and other payees and other amounts becoming
owed under programs for which no current services or performance are
required.
[[Page 131]]
Personal property. Property of any kind except real property. It may
be tangible, having physical existence, or intangible, having no
physical existence, such as copyrights, patents, or securities.
Prior approval. Written approval by an authorized official
evidencing prior consent.
Program income. Gross income earned by the recipient that is
directly generated by a supported activity or earned as a result of the
award (see exclusions in Sec. 32.24(e) and (h)). Program income
includes, but is not limited to, income from fees for services
performed, the use or rental of real or personal property acquired under
federally-funded projects, the sale of commodities or items fabricated
under an award, license fees and royalties on patents and copyrights,
and interest on loans made with award funds. Interest earned on advances
of Federal funds is not program income. Except as otherwise provided in
program regulations or the terms and conditions of the award, program
income does not include the receipt of principal on loans, rebates,
credits, discounts, etc., or interest earned on any of them.
Project costs. All allowable costs, as set forth in the applicable
Federal cost principles, incurred by a recipient and the value of the
contributions made by third parties in accomplishing the objectives of
the award during the project period.
Project period. The period established in the award document during
which Federal sponsorship begins and ends.
Property. Real property and personal property (equipment, supplies,
intangible property and debt instruments), unless stated otherwise.
Real property. Land, including land improvements, structures and
appurtenances thereto, but excluding movable machinery and equipment.
Recipient. An organization receiving financial assistance directly
from DoD Components to carry out a project or program. The term includes
public and private institutions of higher education, public and private
hospitals, and other quasi-public and private non-profit organizations
such as, but not limited to, community action agencies, research
institutes, educational associations, and health centers. The term also
includes consortia comprised of any combination of universities, other
nonprofit organizations, governmental organizations, for-profit
organizations, and other entities, to the extent that the consortia are
legally incorporated as nonprofit organizations. The term does not
include Government-owned contractor-operated facilities or research
centers providing continued support for mission-oriented, large-scale
programs that are Government-owned or controlled, or are designated as
federally-funded research and development centers.
Research and development. All research activities, both basic and
applied, and all development activities that are supported at
universities, colleges, and other non-profit institutions. Research is
defined as a systematic study directed toward fuller scientific
knowledge or understanding of the subject studied. Development is the
systematic use of knowledge and understanding gained from research
directed toward the production of useful materials, devices, systems, or
methods, including design and development of prototypes and processes.
The term research also includes activities involving the training of
individuals in research techniques where such activities utilize the
same facilities as other research and development activities and where
such activities are not included in the instruction function.
Small award. An award not exceeding the simplified acquisition
threshold fixed at 41 U.S.C. 403(11) (currently $100,000).
Subaward. An award of financial assistance in the form of money, or
property in lieu of money, made under an award by a recipient to an
eligible subrecipient or by a subrecipient to a lower tier subrecipient.
The term includes financial assistance when provided by any legal
agreement, even if the agreement is called a contract, but does not
include procurement of goods and services nor does it include any form
of assistance which is excluded from the definition of ``award'' in this
section.
Subrecipient. The legal entity to which a subaward is made and which
is
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accountable to the recipient for the use of the funds provided.
Supplies. All personal property excluding equipment, intangible
property, and debt instruments as defined in this section, and
inventions of a contractor conceived or first actually reduced to
practice in the performance of work under a funding agreement (``subject
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts, and Cooperative Agreements.''
Suspension. An action by a DoD Component that temporarily withdraws
Federal sponsorship under an award, pending corrective action by the
recipient or pending a decision to terminate the award by the DoD
Component. Suspension of an award is a separate action from suspension
of a participant under 32 CFR part 25.
Termination. The cancellation of an award, in whole or in part, at
any time prior to the date of completion.
Third party in-kind contributions. The value of non-cash
contributions provided by non-Federal third parties. Third party in-kind
contributions may be in the form of real property, equipment, supplies,
and the value of goods and services directly benefiting and specifically
identifiable to the project or program.
Unliquidated obligations. The amount of obligations incurred by the
recipient:
(1) That have not been paid, if financial reports are prepared on a
cash basis.
(2) For which an outlay has not been recorded, if reports are
prepared on an accrued expenditure basis.
Unobligated balance. The portion of the funds authorized by a DoD
Component that has not been obligated by the recipient and is determined
by deducting the cumulative obligations from the cumulative funds
authorized.
Unrecovered indirect cost. The difference between the amount awarded
and the amount which could have been awarded under the recipient's
approved negotiated indirect cost rate.
Working capital advance. A procedure whereby funds are advanced to
the recipient to cover its estimated disbursement needs for a given
initial period.
Sec. 32.3 Effect on other issuances.
For awards subject to this part, all administrative requirements of
codified program regulations, program manuals, handbooks and other
nonregulatory materials which are inconsistent with the requirements of
this part shall be superseded, except to the extent they are required by
statute, or authorized in accordance with the deviations provision in
Sec. 32.4.
Sec. 32.4 Deviations.
(a) Individual deviations. Individual deviations affecting only one
award may be approved by DoD Components in accordance with procedures
stated in 32 CFR 21.125(a) and (c).
(b) Small awards. DoD Components may apply less restrictive
requirements than the provisions of this part when awarding small
awards, except for those requirements which are statutory.
(c) Other class deviations. (1) For classes of awards other than
small awards, the Director of Defense Research and Engineering (DDR&E),
or his or her designee, may grant exceptions from the requirements of
this part:
(i) With the written concurrence of the Office of the Management and
Budget (OMB). The DDR&E, or his or her designee, shall provide written
notification to OMB of the Department of Defense's intention to grant a
class deviation; and
(ii) When exceptions are not prohibited by statute.
(2) DoD Components shall request approval for such deviations in
accordance with 32 CFR 21.125(b) and (c). However, in the interest of
maximum uniformity, exceptions from the requirements of this part shall
be permitted only in unusual circumstances.
Sec. 32.5 Subawards.
Unless sections of this part specifically exclude subrecipients from
coverage, the provisions of this part shall be applied to subrecipients
performing
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work under awards if such subrecipients are institutions of higher
education, hospitals or other non-profit organizations. State and local
government subrecipients are subject to the provisions of 32 CFR part
33. Subrecipients that are for-profit organizations are subject to 32
CFR part 34.
Subpart B--Pre-Award Requirements
Sec. 32.10 Purpose.
Sections 32.11 through 32.17 prescribe application forms and
instructions and other pre-award matters.
Sec. 32.11 Pre-award policies.
(a) Use of grants, cooperative agreements, and contracts. (1) OMB
Circular A-110 states that:
(i) In each instance, the Federal awarding agency shall decide on
the appropriate award instrument (i.e., grant, cooperative agreement, or
contract).
(ii) The Federal Grant and Cooperative Agreement Act (31 U.S.C.
6301-6308) governs the use of grants, cooperative agreements, and
contracts. Under that Act:
(A) A grant or cooperative agreement shall be used only when the
principal purpose of a transaction is to accomplish a public purpose of
support or stimulation authorized by Federal statute.
(B) Contracts shall be used when the principal purpose is
acquisition of property or services for the direct benefit or use of the
Federal Government.
(C) The statutory criterion for choosing between grants and
cooperative agreements is that for the latter, ``substantial involvement
is expected between the executive agency and the State, local
government, or other recipient when carrying out the activity
contemplated in the agreement.''
(2) In selecting the appropriate award instruments, DoD Components'
grants officers shall comply with the DoD implementation of the Federal
Grant and Cooperative Agreement Act at 32 CFR 21.205(a) and 32 CFR part
22, subpart B.
(b) Public notice and priority setting. As a matter of
Governmentwide policy, Federal awarding agencies shall notify the public
of intended funding priorities for programs that use discretionary
awards, unless funding priorities are established by Federal statute.
For DoD Components, compliance with competition policies and statutory
requirements implemented in 32 CFR part 22, subpart C, shall constitute
compliance with this Governmentwide policy.