§ 2350a. Cooperative research and development agreements: NATO organizations; allied and friendly foreign countries

§ 2350a. Cooperative research and development agreements: NATO organizations; allied and friendly foreign countries

(a) Authority To Engage in Cooperative R&D Projects.—

(1) The Secretary of Defense may enter into a memorandum of understanding (or other formal agreement) with one or more countries or organizations referred to in paragraph (2) for the purpose of conducting cooperative research and development projects on defense equipment and munitions.

(2) The countries and organizations with which the Secretary may enter into a memorandum of agreement (or other formal agreement) under paragraph (1) are as follows:

(A) The North Atlantic Treaty Organization.

(B) A NATO organization.

(C) A member nation of the North Atlantic Treaty Organization.

(D) A major non-NATO ally.

(E) Any other friendly foreign country.

(F) The European Union, including the European Defence Agency, the European Commission, and the Council of the European Union, and their suborganizations.

(3) If such a memorandum of understanding (or other formal agreement) is with a country referred to in subparagraph (E) of paragraph (2), such memorandum (or agreement) may go into effect only after the Secretary submits to the Committees on Armed Services and on Foreign Relations of the Senate and to the Committees on Armed Services and on International Relations of the House of Representatives a report with respect to the proposed memorandum (or agreement) and a period of 30 days has passed after the report has been submitted.

(b) Requirement That Projects Improve Conventional Defense Capabilities.—

(1) The Secretary of Defense may not enter into a memorandum of understanding (or other formal agreement) to conduct a cooperative research and development project under this section unless the Secretary determines that the proposed project will improve, through the application of emerging technology, the conventional defense capabilities of the North Atlantic Treaty Organization or the common conventional defense capabilities of the United States and a country or organization referred to in subsection (a)(2).

(2) The authority of the Secretary to make a determination under paragraph (1) may only be delegated to the Deputy Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment, or the Under Secretary of Defense for Research and Engineering.

(c) Cost Sharing.—

(1) Except as provided in paragraph (2), each cooperative research and development project entered into under this section shall require sharing of the costs of the project (including the costs of claims) between the participants on an equitable basis.

(2) A cooperative research and development project may be entered into under this section under which costs are shared between the participants on an unequal basis if the Secretary of Defense, or an official specified in subsection (b)(2) to whom the Secretary delegates authority under this paragraph, makes a written determination that unequal cost sharing provides strategic value to the United States or another participant in the project.

(3) For purposes of this subsection, the term “cost” means the total value of cash and non-cash contributions.

(d) Restrictions on Procurement of Equipment and Services.—

(1) In order to assure substantial participation on the part of countries and organizations referred to in subsection (a)(2) in cooperative research and development projects, funds made available for such projects may not be used to procure equipment or services from any foreign government, foreign research organization, or other foreign entity.

(2) A country or organization referred to in subsection (a)(2) may not use any military or economic assistance grant, loan, or other funds provided by the United States for the purpose of making the contribution of that country or organization to a cooperative research and development program entered into with the United States under this section.

(e) Cooperative Opportunities.—

(1) In order to ensure that opportunities to conduct cooperative research and development projects are considered at an early point during the formal development review process of the Department of Defense in connection with any planned project of the Department, opportunities for such cooperative research and development shall be addressed in the acquisition strategy for the project.

(2) A cooperative opportunities discussion referred to in paragraph (1) shall consider the following:

(A) Whether or not a project similar to the one under consideration by the Department of Defense is in development or production by any country or organization referred to in subsection (a)(2) or NATO organizations.

(B) If a project similar to the one under consideration by the Department of Defense is in development or production by one or more countries and organizations referred to in subsection (a)(2), an assessment as to whether that project could satisfy, or could be modified in scope so as to satisfy, the military requirements of the project.

(C) An assessment of the advantages and disadvantages with regard to program timing, developmental and life cycle costs, technology sharing, and Rationalization, Standardization, and Interoperability (RSI) of seeking to structure a cooperative development program with one or more countries and organizations referred to in subsection (a)(2) or NATO organizations.

(D) A recommendation to the milestone decision authority as to whether the Department of Defense should explore the feasibility and desirability of a cooperative development program with one or more countries and organizations referred to in subsection (a)(2) or NATO organizations.

[(f) Repealed. Pub. L. 108–136, div. A, title X, § 1031(a)(17), Nov. 24, 2003, 117 Stat. 1597.]

(g) Side-by-Side Testing.—

(1) It is the sense of Congress—

(A) that the Secretary of Defense should test covered equipment, munitions, and technologies to determine the ability of such covered equipment, munitions, and technologies to satisfy United States military requirements or to correct operational deficiencies; and

(B) that while the testing of nondevelopmental items and items in the late state of the development process are preferred, the testing of such covered equipment, munitions, and technologies may be conducted to determine procurement alternatives.

(2) The Secretary of Defense may acquire covered equipment, munitions, and technologies for the purpose of conducting the testing described in that paragraph.

(3) The use of side-by-side testing under this subsection may be considered to be the use of competitive procedures for purposes of chapter 137 11 See References in Text note below. of this title, when procuring items within 5 years after an initial determination that the items have been successfully tested and found to satisfy United States military requirements or to correct operational deficiencies.

(4) Covered Equipment, Munitions, and Technologies Defined.— In this subsection, the term “covered equipment, munitions, and technologies” means—

(A) conventional defense equipment, munitions, and technologies manufactured and developed by countries referred to in subsection (a)(2); and

(B) conventional defense equipment, munitions, and technologies manufactured and developed domestically.

(h) Secretary To Encourage Similar Programs.— The Secretary of Defense shall encourage member nations of the North Atlantic Treaty Organization, major non-NATO allies, and other friendly foreign countries to establish programs similar to the one provided for in this section.

(i) Definitions.— In this section:

(1) The term “cooperative research and development project” means a project involving joint participation by the United States and one or more countries and organizations referred to in subsection (a)(2) under a memorandum of understanding (or other formal agreement) to carry out a joint research and development program—

(A) to develop new conventional defense equipment and munitions; or

(B) to modify existing military equipment to meet United States military requirements.

(2) The term “major non-NATO ally” means a country (other than a member nation of the North Atlantic Treaty Organization) that is designated as a major non-NATO ally for purposes of this section by the Secretary of Defense with the concurrence of the Secretary of State.

(3) The term “NATO organization” means any North Atlantic Treaty Organization subsidiary body referred to in section 2350(2) of this title and any other organization of the North Atlantic Treaty Organization.

(Added Pub. L. 101–189, div. A, title IX, § 931(a)(2), Nov. 29, 1989, 103 Stat. 1531; amended Pub. L. 101–510, div. A, title XIII, § 1331(4), Nov. 5, 1990, 104 Stat. 1673; Pub. L. 102–190, div. A, title X, § 1053, Dec. 5, 1991, 105 Stat. 1471; Pub. L. 102–484, div. A, title VIII, § 843(b)(1), Oct. 23, 1992, 106 Stat. 2469; Pub. L. 103–160, div. A, title IX, § 904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–337, div. A, title XIII, § 1301, Oct. 5, 1994, 108 Stat. 2888; Pub. L. 104–106, div. A, title XV, § 1502(a)(17), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title IX, § 911(a)(1), title X, § 1067(1), Oct. 5, 1999, 113 Stat. 717, 774; Pub. L. 107–107, div. A, title X, § 1048(b)(2), title XII, § 1212(a)–(e)(1), Dec. 28, 2001, 115 Stat. 1225, 1248–1250; Pub. L. 107–314, div. A, title X, §§ 1041(a)(9), 1062(f)(2), Dec. 2, 2002, 116 Stat. 2645, 2651; Pub. L. 108–136, div. A, title X, § 1031(a)(17), Nov. 24, 2003, 117 Stat. 1597; Pub. L. 110–181, div. A, title II, § 237, title XII, § 1251, Jan. 28, 2008, 122 Stat. 48, 401; Pub. L. 111–383, div. A, title IX, § 901(j)(4), Jan. 7, 2011, 124 Stat. 4324; Pub. L. 112–81, div. A, title VIII, § 865, title X, § 1061(14), Dec. 31, 2011, 125 Stat. 1526, 1583; Pub. L. 114–92, div. A, title VIII, § 821(b)(1), Nov. 25, 2015, 129 Stat. 900; Pub. L. 114–328, div. A, title VIII, § 827, Dec. 23, 2016, 130 Stat. 2280; Pub. L. 116–92, div. A, title IX, § 902(54), Dec. 20, 2019, 133 Stat. 1549; Pub. L. 116–283, div. A, title II, § 211, title VIII, § 882, Jan. 1, 2021, 134 Stat. 3455, 3790; Pub. L. 117–263, div. A, title II, § 211(a), Dec. 23, 2022, 136 Stat. 2466.)

Editorial Notes

References in Text

Chapter 137 of this title, referred to in subsec. (g)(3), was repealed by Pub. L. 116–283, div. A, title XVIII, § 1881(a), Jan. 1, 2021, 134 Stat. 4293, effective Jan. 1, 2022, in conjunction with the transfer and reorganization of acquisition provisions in this title by Pub. L. 116–283, div. A, title XVIII, Jan. 1, 2022, 134 Stat. 4149. For definition of “chapter 137 legacy provisions”, see section 3016 of this title.

Prior Provisions

Provisions relating to NATO countries were contained in Pub. L. 99–145, title XI, § 1103, Nov. 8, 1985, 99 Stat. 712, which was set out as a note under section 2407 of this title, prior to repeal by Pub. L. 101–189, § 931(d)(1).

Provisions relating to major non-NATO allies were contained in section 2767a of Title 22, Foreign Relations and Intercourse, prior to repeal by Pub. L. 101–189, § 931(d)(2).

Amendments

2022—Subsec. (a)(2)(F). Pub. L. 117–263 added subpar. (F).

2021—Subsec. (b)(2). Pub. L. 116–283, § 211(1), substituted “or the Under Secretary” for “and the Under Secretary”.

Subsec. (c). Pub. L. 116–283, § 211(2), designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), each cooperative” for “Each cooperative”, and added pars. (2) and (3).

Subsec. (g)(1)(A). Pub. L. 116–283, § 882(1)(A), substituted “covered equipment, munitions, and technologies” for “conventional defense equipment, munitions, and technologies manufactured and developed by countries referred to in subsection (a)(2)” and “such covered equipment, munitions, and technologies” for “such equipment, munitions, and technologies”.

Subsec. (g)(1)(B). Pub. L. 116–283, § 882(1)(B), inserted “such covered” before “equipment, munitions, and technologies”.

Subsec. (g)(2). Pub. L. 116–283, § 882(2), substituted “covered equipment, munitions, and technologies” for “equipment, munitions, and technologies of the type described in paragraph (1)”.

Subsec. (g)(4). Pub. L. 116–283, § 882(3), added par. (4).

2019—Subsec. (b)(2). Pub. L. 116–92 substituted “Under Secretary of Defense for Acquisition and Sustainment, and the Under Secretary of Defense for Research and Engineering” for “Under Secretary of Defense for Acquisition, Technology, and Logistics, and the Assistant Secretary of Defense for Research and Engineering”.

2016—Subsec. (g)(3). Pub. L. 114–328 added par. (3).

2015—Subsec. (e). Pub. L. 114–92, § 821(b)(1)(A), struck out “Document” after “Cooperative Opportunities” in heading.

Subsec. (e)(1). Pub. L. 114–92, § 821(b)(1)(B), substituted “opportunities for such cooperative research and development shall be addressed in the acquisition strategy for the project” for “the Under Secretary of Defense for Acquisition, Technology, and Logistics shall prepare a cooperative opportunities document before the first milestone or decision point with respect to that project for review by the Defense Acquisition Board at formal meetings of the Board”.

Subsec. (e)(2). Pub. L. 114–92, § 821(b)(1)(C)(i), substituted “discussion” for “document” and “consider” for “include” in introductory provisions.

Subsec. (e)(2)(A). Pub. L. 114–92, § 821(b)(1)(C)(ii), substituted “Whether” for “A statement indicating whether”.

Subsec. (e)(2)(B). Pub. L. 114–92, § 821(b)(1)(C)(iii), struck out “by the Under Secretary of Defense for Acquisition, Technology, and Logistics” after “an assessment” and “of the United States under consideration by the Department of Defense” after “of the project”.

Subsec. (e)(2)(D). Pub. L. 114–92, § 821(b)(1)(C)(iv), substituted “A recommendation to the milestone decision authority” for “The recommendation of the Under Secretary”.

2011—Subsec. (b)(2). Pub. L. 112–81, § 865, substituted “, the Under Secretary of Defense for Acquisition, Technology, and Logistics, and the Assistant Secretary of Defense for Research and Engineering” for “and to one other official of the Department of Defense”.

Subsec. (g)(3). Pub. L. 112–81, § 1061(14), struck out par. (3) which read as follows: “The Assistant Secretary of Defense for Research and Engineering shall notify the congressional defense committees of the intent to obligate funds made available to carry out this subsection not less than 7 days before such funds are obligated.”

Pub. L. 111–383 substituted “Assistant Secretary of Defense for Research and Engineering” for “Director of Defense Research and Engineering”.