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

2. 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

3. 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?

4. 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

5. 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?

6. 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

7. Section 1: What problem are you trying to solve?

8. 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

9. 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?

10. 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

11. 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.

12. 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

13. Section 2: What is your acquisition strategy?

14. 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?

15. 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?

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

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

18. 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

19. 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?

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

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

22. 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?

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

24. 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

25. 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

26. 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

27. 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

28. 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

29. Student Products
Draft OT Agreement

30. Wrap-Up

31. You’re only limited by your imagination.