Other Transactions Simulation Diane Sidebottom Michelle Currier Mike Cooligan Kristen Fuller Other Transactions Simulation

Before We Begin . . . . Some things to consider Logistics The Approach The Agenda The Materials Library Individual case facts Feel free to ask questions anytime Introductions

Agenda Day One 8:30AM-12PM: SECTION 1 What problem are you trying to solve, and what’s the best approach to solve it? Based on your fact scenario, consider these questions: What are you trying to achieve? What opportunities are available for innovative solutions? Based on your assessment of your problem, can or should it be addressed using an OT? Is another innovative tool better suited to the problem?

AgendaAgenda Day One (cont.) 1PM-4:30PM: SECTION 2 What is your acquisition strategy, including program structure and competitive approach? Based on your considerations and decision in Section 1, consider these questions: What is your planned approach to structuring your program? Do you want competition and how much? How will you seek out innovative players and solutions? 4:30PM-4:45 PM: Wrap-Up Day One

Agenda Day Two 8AM-8:30AM: Recap Day One/Intro Day Two 8:30AM-12PM: SECTION 3 How will you solicit for offers, and how will you conduct the selection process? Based on the work you’ve done so far, assume you will be issuing a solicitation for your program and consider the following questions: How will your solicitation be structured and what process will you use? How will the selection process work?

Agenda Day Two (cont.) 1PM-4:30PM: SECTION 4 4:30PM-4:45PM: Wrap-Up What will be your agreement terms and conditions? Based on the work you’ve done so far and utilizing the sample agreement provided, consider the following question: What will you include in your OT agreement terms and conditions (Ts&Cs)? 4:30PM-4:45PM: Wrap-Up

Section 1: What problem are you trying to solve?

Defining “True” Requirements Identify the real opportunity to innovate Focus may need to be on a new technology, not the entire system Consider dual use opportunities Rather than relying on military specific specs or standards consider pre-existing commercial solutions Require only what you need Only require delivery of data you will use to manage your program

Is an OT the right vehicle? Are you acquiring a prototype? Will non-traditional defense contractors be interested in proposing? Do you need flexible terms and conditions in order to attract the best performers? Does the Government team possess the knowledge, judgment, and business acumen necessary to negotiate an OT?

Reasons not to award an OT It’s faster OTs are unstructured and may require significantly more time to negotiate specific terms and conditions DoD 5000 doesn’t apply Not necessarily. If your program is subject to DoD 5000, your OT will be as well Competition is not required OTs require competition to the maximum extent practicable

Tool Box Acquisition | Non-Acquisition Procurement Contracts Non-FAR Contracts Grants Cooperative Agreements OTs 10 U.S.C. § 2304 31 U.S.C. § 6303 Federal Acquisition Regulation Non Appropriated funds contracts 10 U.S.C. § 2371b NASA Space Act Unique authority at 9 civilian agencies Exceptions to Bayh-Dole Act 10 U.S.C. § 2358 31 U.S.C. § 6304 2 CFR Part 200 DODGAR Bayh-Dole Act 31 U.S.C. § 6305 Technology Investment Agreements (TIAs) Other 10 U.S.C. § 2371 10 U.S.C. § 2371 (a) & (b) Traditional Lore Flexible Recoupment Authority 10 U.S.C. § 2371(d) ASD(R&E) Letter Multi-Party Commercial Firm Consortia 10 U.S.C. § 2371 (d) Exception to Bayh-Dole New/Unique Arrangements Bailments Lease Arrangements Loan-to-Own PART 15 Cost/ Price Based PART 12 Commer-cial Items CRADA A legal agreement between a federal laboratory and industry used for the transfer of commercially useful technologies from federal laboratories to the private sector and to make accessible unique technical capabilities and facilities.

Student Products Brief summary of requirements list and identified opportunities for innovation Rationale for award vehicle/acquisition option chosen, including prototype justification if 10 U.S.C. 2371b is the chosen path

Section 2: What is your acquisition strategy?

Acquisition approach Do you anticipate multiple vendors? If so, do you anticipate rolling downselects leading to one vendor at the end of the program? Will you manage your program in phases? Are there logical decision points where the Government can assess whether the program should continue, and, if so, which performers should continue? Will you use payable milestones? Does it make sense to tie payment to observable program achievements? Do you anticipate follow-on production? Are you acquiring all you need to enter into production? Will you use a follow-on OT or procurement contract?

Competition Define “competition to the maximum extent practicable” for your program Determine whether you will issue a new solicitation or use an existing one You may decide to use a solicitation outside of your command or agency, e.g. consortium agreement Designate your market intelligence approach Where and how will you advertise your opportunity to attract nontraditional defense contractors? Do you want to encourage/discourage traditional defense contractor and/or foreign sources?

Student Products Description of the planning programmatic approach Description of the competition and marketing approach

Section 3: How will you solicit offers and select proposals?

Seeking Proposals Consider methods beyond a standalone written proposal Oral proposals Executive Summaries/White papers/Abstracts Alternative presentation/proposal methods Shark Tank-like Presentation Rodeo Collider Events Tech Demonstrations Design Sprints Hackathons

Evaluating Proposals Who will be your evaluation team? What criteria will you use to evaluate proposals? Primarily an assessment of technical merit Don’t compare proposals How will you communicate with proposers? Will you continue to communicate up until proposals are received? How about afterward? What feedback will you provide? How will you document selection decisions?

Student Products Basic outline of solicitation Outline of evaluation approach and documentation

Section 4: What will be your agreement Ts & Cs?

Negotiating the OT Draft an effective vision statement Summarize the goals of the program in such a way that it drives performance toward those goals Assess teaming arrangements For ad hoc consortia, do they have a well defined Articles of Collaboration? For, prime/subs, are responsibilities articulated well in the proposal? Consider common Ts&Cs: Termination Payment (Fixed vs Expenditure) Intellectual Property Foreign Access Cost Sharing, if any Other?

Termination Consider if there are any conditions when it might make sense to permit the performer to unilaterally terminate the agreement

Payment Fixed payments are not intended to be adjusted based on actual expenditures In order to receive all Federal money obligated under the agreement, performer must complete all work If cost to complete effort exceeds the amount of the award, the performer must complete the effort with its own funds Not appropriate when project outcomes are not well defined or when statute requires a specific amount of cost share Non-traditional defense contractors may prefer fixed payments because they are not subject to audit

Payment (Cont.) Expenditure-based payments are adjusted based on actual expenditures up to the total amount of award Once all funds have been expended the agreement ends If the project is completed before all funds are expended, either The agreement ends with the Government able to recover its share of unexpended funds or By mutual agreement, the agreement is amended to expand the scope to all for expenditure of remaining funds Expenditure-based OTs are appropriate when Project is high risk and not well defined Statute requires a specific amount of cost share

Intellectual Property Consider what minimum rights the Government will require in the prototype Consider allowing performer more time to— Notify the Government of an invention Inform the Government whether it intends to take title to the invention Commercialize the invention before Government license rights in the invention become effective

Foreign Access Consider the harm, if any, if a technology developed under the project were to be licensed overseas during or shortly after completion of the project May want to impose a timeline for overseas licensing or else require Government approval during a set timeframe before technology may be licensed to a foreign entity

Cost Sharing Need to specify whether cost share is required Consider requiring proportional cost share Prevents front-loading costs on Government Also inhibits “cherry-picking,” i.e. performer stating that valuable technologies were solely developed with performer contributions

Student Products Draft OT Agreement

Wrap-Up

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