Other Transactions Simulation

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

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

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 • 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 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.