Page:United States Statutes at Large Volume 118.djvu/1890

 118 STAT. 1860 PUBLIC LAW 108–375—OCT. 28, 2004 ‘‘(4) The non Army entity agrees to hold harmless and indemnify the United States from any liability or claim for damages or injury to any person or property arising out of the activity, including any damages or injury arising out of a decision by the Secretary of the Army or the Secretary of Defense to suspend or terminate an activity, or any portion thereof, during a war or national emergency or to require the facility to perform other work or provide other services on a priority basis, except— ‘‘(A) in any case of willful misconduct or gross neg ligence; and ‘‘(B) in the case of a claim by a purchaser of articles or services under this section that damages or injury arose from the failure of the United States to comply with quality, schedule, or cost performance requirements in the contract to carry out the activity. ‘‘(d) ARANGEMENT METHODS AND AUTHORITIES.—To establish a cooperative arrangement under subsection (a) with a non Army entity, the approval authority described in subsection (e) for an Army industrial facility may— ‘‘(1) enter into a firm, fixed price contract (or, if agreed to by the non Army entity, a cost reimbursement contract) for a sale of articles or services or use of equipment or facilities; ‘‘(2) enter into a multiyear contract for a period not to exceed five years, unless a longer period is specifically author ized by law; ‘‘(3) charge the non Army entity the amounts necessary to recover the full costs of the articles or services provided, including capital improvement costs, and equipment deprecia tion costs associated with providing the articles, services, equip ment, or facilities; ‘‘(4) authorize the non Army entity to use incremental funding to pay for the articles, services, or use of equipment or facilities; and ‘‘(5) accept payment in kind. ‘‘(e) APPROVAL AUTHORITY.—The authority of an Army indus trial facility to enter into a cooperative arrangement under sub section (a) shall be exercised at the level of the commander of the major subordinate command of the Army that has responsibility for the facility. The commander may approve such an arrangement on a case by case basis or a class basis. ‘‘(f) COMMERCIAL SALES.—Except in the case of work performed for the Department of Defense, for a contract of the Department of Defense, for foreign military sales, or for authorized foreign direct commercial sales (defense articles or defense services sold to a foreign government or international organization under export controls), a sale of articles or services may be made under this section only if the approval authority described in subsection (e) determines that the articles or services are not available from a commercial source located in the United States in the required quantity or quality, or within the time required. ‘‘(g) EXCLUSION FROM DEPOT LEVEL MAINTENANCE AND REPAIR PERCENTAGE LIMITATION.—Amounts expended for the performance of a depot level maintenance and repair workload by non Federal Government personnel at an Army industrial facility shall not be counted for purposes of applying the percentage limitation in section 2466(a) of this title if the personnel are provided by a

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