Jennifer Schaus & Associates SERVICES FOR US FEDERAL GOVERNMENT CONTRACTORS
WEBINAR WEDNESDAYS – 2018 WASHINGTON, DC OFFICE PHONE: 2 0 2 – 3 6 5 – 0 5 9 8
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
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Join Us for Our 2018 Series of Complimentary Webinars on various US Federal Government Contracting Topics. Presenters are industry experts sharing knowledge about the competitive government contracting sector. Find all of our Govt Contracting webinars (free download) at www.JenniferSchaus.com
Contact Us @ 2 0 2 – 3 6 5 – 0 5 9 8
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
REMINDERS: All webinars are complimentary. All webinars are recorded. They are found on our website and on YouTube. Please send your questions to the speaker directly. Thank you for participating.
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
ABOUT JENNIFER SCHAUS & ASSOCIATES: - Based in downtown Washington, DC; -
A la carte services for Federal Contractors;
Proposal Writing to GSA Schedules, 8a Cert and Contract Administration, etc.; Educational webinars; -
Networking events and seminars;
WEBSITE: http://www.JenniferSchaus.com
Monday, OCT 22 – 2018 5.30pm -7.30pm Federal Contractors Fiscal New Year Soiree #govcon NETWORKING EVENT @ The John F Kennedy Center TICKETS REQUIRED, SPONSORSHIPS AVAIL: https://fiscalnew102218.eventbrite.com
Monday, OCT 22 – 2018 Federal Contractors Networking Event
Sponsors:
Federal Agencies:
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
ABOUT OUR SPEAKER: Mary Beth Mary Beth Bosco is a partner in the Holland & Knight Government Contracts Group. A graduate of Yale University and George Washington Law School, she has over 30 years of experience in government contracts law. Her practice includes counseling contractors regarding government contracts compliance, assisting in audit responses and investigations, and advising clients in connection with transactions involving government contractors.
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
Other Transactional Authority Wednesday, October 10, 2018
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
Agenda
•What are Other Transaction Agreements? •Which Agencies can use OTAs? •How are OTAs awarded? •What are Recent Trends on uses of OTAs? •What are the Opportunities and Risks from OTAs? •What are Best Practices for Entering into OTAs? Presenter Logo here
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Is the Other Transactional Authority? •An OT agreement is a binding legal document between the Government and a company and typically is a transaction (other than a contract, grant, or cooperative agreement) to which most of the laws and regulations governing federal contracts do not apply. • OTAs are intended to promote contracting with nontraditional organizations to access emerging technologies by allowing for rapid implementation and execution. Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Is the Other Transactional Authority? The Basics: •Contracts not weighed down by traditional FAR requirements or subject to same protections for contractors. •Statutorily authorized, so only available at a few agencies. •Many terms need to be negotiated each time (such as IP rights). •Intended for use with Nontraditional contractors. Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Is the Other Transactional Authority? •What is a nontraditional contractor? •Under DoD’s definition, an organization that is not currently performing and has not performed for at least one-year prior to an OTA solicitation (i) any contract or subcontract subject to full coverage under the Cost Accounting Standards (“CAS”); or (ii) any other contract in excess of $700,000 under which the contractor is required to submit certified cost or pricing data. •But, “traditional” contractors can participate if: •A nontraditional contractor is participating to a “significant” extent; •The traditional contractor provides either a financial or in-kind contribution (typically 1/3 of the OTA value); or •The agency determines that exceptional circumstances exist. .
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
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What Is the Other Transactional Authority? •Traditional contractors can also be part of an “OTA consortium.” •An OTA consortium is a group of companies who work together on a particular subject or research project. The agency contracts with the consortium and not the individual companies. •The OTA consortium is very flexible and the terms vary from consortium to consortium. In some cases, the consortium hires a third-party administrator to “run” the consortium. Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Is the Other Transactional Authority?
OT Consortiums: Some Examples
Consortium for Command, Control and Communications in Cyberspace (C5) Consortium for Energy, Environment and Demilitarization (CEED) Defense Mobility Enterprise/National Advanced Mobility Consortium (NAMC) DoD Ordnance Technology Consortium/National Armaments Consortium Vertical Lift Consortium (VLC) National Spectrum Consortium (NSC) Medical Technology Enterprise Consortium (MTEC) Medical CBRN Defense Consortium (MCDC) Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
Agencies with OTA Department of Defense (DoD) – R&D Projects DoD – Prototype Projects Department of Energy (DoE) Advanced Research Projects Agency-Energy (ARPA-E) National Institutes of Health (NIH) National Aeronautical and Space Administration Presenter Logo here
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
Agencies with OTA Department of Homeland Security (DHS) Domestic Nuclear Detection Office (DNDO) Transportation Security Administration (TSA) Department of Transportation (DoT) Federal Aviation Administration (FAA)
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
How Are OTAs Awarded? Traditional Contracting Method: •Step #1: Agency puts out an RFP seeking a product or service (or combination). This may have been proceeded by an RFI or Industry Day. •Step #2: Agency amends RFQ and answers questions posed by the potential bidders. •Step #3: Bids are received by a specific deadline and evaluated (usually over many months). •Step #4: Awards are made followed (potentially) by protests Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
How Are OTAs Awarded? Not “One Size Fits All”; OTAs Generally Follow This Process: Phase I: Evaluation Agency issues Commercial Solutions Opening (“CSO”) (like a Broad Area Announcement) Company submits “Solution Brief” or “White Paper” Phase II: Pitch Agency issues a call for proposals Phase III: Award Negotiation and awards NOTE: The 2018 NDAA allows for follow-on awards without competition. Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
How Are OTAs Awarded? Can I Protest an OTA? •Spectre Corp., COFC No. 16-932 C (June 30, 2017) •NASA entered into two OT Agreements with Spectre •Spectre brought action in COFC under the Tucker Act for breach of contract and breach of fair dealing under both OT Agreements
•NASA moved to dismiss for lack of jurisdiction •Judge Smith confirmed COFC has jurisdiction over disputes arising under OT Agreements Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
§ 815 of 2016 NDAA:
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Recent Trends In OTAs
•Streamlined Authority to Award Follow-On Production Contracts •No competition required if competitive procedures were used in the initial prototype transaction award; and Participation in the consortium member white paper/award process meets this requirement
•The OTA contractor successfully completed the prototype project Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
§ 861-68 of 2018 NDAA:
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Recent Trends In OTAs
•Preference for use of OT Agreements in the execution of science and technology and prototyping programs •Increased dollar thresholds at which approvals are required from $50M/ $250M to $100M/$500M. •Exemption from cost sharing for awards to nonprofit research institutions •Follow-On production contracts may be awarded to consortia of industry and academic institutions Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
§2019 NDAA
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Recent Trends In OTAs
•Section 211 adds a process for competing the work to field technologies identified in Phase II SBIR contracts through use of Broad Agency Announcements. Maximum funding is $3 million and maximum POP is 2 years. •Section 863 introduces the concept of “Defense Manufacturing Communities,” which are consortia of contractors whose mission is to strengthen the national security innovation base. Application criteria may include diversity of types of organizations, geographical considerations, efficiency of consortium model, and synergy with defense manufacturing institutes. Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Are the Rules for OTAs? Potential Pitfalls for OTAs: Must negotiate allocation of intellectual property rights. Government may audit and examine records. No protections from the Competition in Contracting Act or Contract Disputes Act. Potential requirement to comply with socioeconomic policies such as Title VI of the Civil Rights Act. Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
What Are the Rules for OTAs?
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• DoD can negotiate I.P. terms and conditions different from procurement contracts • Gov’t should seek technical data and computer software rights based on likelihood of follow-on production and deployment and consideration of Gov’t’s total life cycle cost of the technology • Use Bayh-Dole Act (10 USC 2320-21) is a guide. Contractor retains title Gov’t get license rights to facilitate acquisition strategy Balance the relative investments/risks borne by the parties
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Are the Rules for OTAs?
• Rights in Data uses DFARS as a Model
Agreement should explicitly address extent of Gov’ts rights to use, modify, reproduce, perform, display, release, and disclose the data/software Clause negotiated on a case-by-case basis Include delivery of data/software developed at Government expense Should consider instant and future needs of both parties, the technology at issues, and any commercialization strategies Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
What Are the Rules for OTAs? • Government has broad audit authority • Agreements larger than $5 million must include a provision that allows Comptroller General to examine records of any party to the agreement or any entity that participates in the agreement. • Types of records broad. Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
What Are the Rules for OTAs? • Contractors may have to comply with Title VII. • May need: • Affirmative Action Plans • Track workforce composition • Track applicants and job offers • Submit annual reports Presenter Logo here
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Practice Pointers •OT Agreements are increasing in importance as source of federal R&D funding •Research Opportunities with Federal Agencies that have OT Authority Look for areas of interest that align with research priorities
•Research Opportunities with Consortia whose research activities might align with your priorities Presenter Logo here
Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
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Practice Pointers •Follow developments, especially implementation of new DoD “preference” for OT Agreements •Develop an OT Agreement Strategy •Development an OT Agreement Capture Team Understand the evaluation and award process Establish negotiation objectives for terms and conditions Understand how to make the “pitch”
•Develop an OT Agreement Performance and Administration Team
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Jennifer Schaus & Associates – GOV CON WEBINAR SERIES - 2018 - WASHINGTON DC
www.JenniferSchaus.com
Practice Pointers Make sure you know what your agreement requires.
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THANK YOU FOR ATTENDING!!
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QUESTIONS? CONTACT OUR SPEAKER Mary Beth Bosco AT 202-469-5270 AND AT Marybeth.bosco@hklaw.com
SERVICES FOR US FEDERAL CONTRACTORS
OFFICE: 2 0 2 – 3 6 5 – 0 5 9 8