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The Other Transactions Community of Practice (aka the OT CoP) is designed to be your destination of choice for information regarding Other Transactions within the Department of Defense. At the OT CoP, you will find information regarding the history of OTs; links to statutes, policies, and guidance relative to OTs; access to OT training; information about upcoming OT events; and lessons learned from others in the OT community.
Independent Rough Terrain Center, LLC v. United States, No 24-160 (July 16, 2024). The Court of Federal Claims found it had jurisdiction over a follow-on production other transaction but dismissed the case because because the protester allowed its SAM registration to lapse, and was thus ineligible for award and lacked standing.
Kinemetrics, Inc. v. United States; No. 21-1626 (Sept. 10, 2021). The Court of Federal Claims found it had jurisdiction over the Commercial Solutions Opening because it was in connection with a procurement but denied protester’s claims challenging the Government’s award leveraging a Commercial Solutions Opening.
MD Helicopters, Inc. v. United States; No. 2:19-CV-02236-JAT (D. Ariz. Jan. 24, 2020). The protester filed a new action in federal district court in Arizona challenging the award, and the Dept. of Justice conceded district court jurisdiction under the Administrative Procedure Act, 5 USC § 701, based upon the conclusion that the Administrative Dispute Resolution Act did not repeal district court jurisdiction over non-procurement protests. Despite DOJ’s concession that the district court had jurisdiction, the district court dismissed the protest for lack of jurisdiction based on arguments made by the interveners.
Space Exploration Techs. Corp. v. United States; No. 19-742C (Aug. 26, 2019). In a post-award bid protest, the Court of Federal Claims found it lacked jurisdiction over the award of a prototype OT because the terms of the specific award did not satisfy the requirement in the Tucker Act that it be “in connection with a procurement or proposed procurement” where the award was for a prototyping other transaction and expressly stated that the competition for a FAR-based production contract would be held subsequently and separately.
United States ex re. Jackson v. Ventavia Research Group, LLC, --F.Supp.3d -- (2023) ("Such prototype agreements are executed under the DoD’s 'Other Transaction Authority' and, as a statutory matter, are not subject to FAR, which is the primary regulation otherwise used by Government agencies in their acquisition of supplies and services with appropriated funds. 10 U.S.C. § 4022(f)(2); see NSTI, LLC v. Def. Energy Ctr. Of Excellence, No. 4:19-CV-03854, (S.D. Tex. Mar. 17, 2020) ('Other Transactions are legally binding contracts that are generally exempt from federal procurement laws and regulations.')."
A consolidated and annotated version of these policies as of March 2024 has been pasted into a Word version so it is easily searchable. Use at your own risk.
This research provides an analysis of Department of Defense (DOD) use of the Commercial Solutions Opening (CSO), a new general solicitation technique to acquire innovative solutions. The purpose of this research is to identify strengths, weaknesses, and best practices of CSOs and make recommendations based on those observations.
Additional Reporting Annual Data Call - Budget Line Item - Where is the Data Found?
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View Discussion
January 17, 2024 - 06:10pm
QUESTION
Does anyone know or confirm that the RM/BFM/Comptroller is the one to provide the budget line item data required for the additional reporting annual data call found in the OTA Guide for Office of the Under Sec of Defense for ACQ & Sustainment? Working this annual report and have a roadblock in locating the Budget Line Items. We have requested the data from the finance side but they do not know what we are asking for. I believe these are the budget line items addressed in the DOD FMR.
Any information about this subject (maybe we can share will the finance side if it is their responsibility) would be greatly appreciated.
Agreement Officer's Representative Training Requirements
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View Discussion
June 6, 2023 - 10:44am
QUESTION
I am looking for any federal or DoD policy/regulation/guidance that articulates the training requirements for Agreement Officer's Representive (AOR). It is my understanding that AOR roles and responsibilities are similar to Contracting Officer's Representatives (COR) roles and responsibilities on FAR contracts. DoDI 5000.72 specifies training for CORs but is silent on AORs.
Does anyone know if there is official guidance on AOR training requirements?
SCENARIO
COMMENTS
There is no federal or DOD-wide guidance on training requirements for Agreements Officer Representatives. Unlike FAR-based contracts where the Contracting Officer Representative's role is prescribed, there are a broad range of possible duties for an AOR that may be in addition to those of a COR or that are inapplicable. Thus, the AOR appointment letter needs to be tailored to the specific opportunity. There is also a variety of approaches to AOR training - some organizations have required the AORs to be COR-certified under the FAR-based requirements, where others have tailored training to a specific opportunity.
The OT guide and training list prize authority as a means of competition for OTs. However, this is under a different authority, 10 USC 4025. How does this work when they are two separate and distinct authorities with different competition requirements?
SCENARIO
COMMENTS
In this case, you can use the prize authority competition to satisfy the prototype OT authority competition requirement. The prize authority statute, 10 USC 4025(b), sets forth the competition requirement as "[e]ach program under subsection (a) shall use a competitive process for the selection of recipients of cash prizes and for the selection of recipients of procurement contracts and other agreements. The process shall include the widely-advertised solicitation of submissions." The prototype OT competition requirement in 10 USC 4022 is that the Government use "competitive procedures" to the "maximum extent practicable." By using the prize statute's "competitive process", that is " widely advertising the solicitation of submissions," the Government could satisfy 10 USC 4022's requirement to use "competitive procedures."
Note that in order to make a follow-on production award under 10 USC 4022(f) the Agreements Officer would need to leverage the 10 USC 4022(a) authority in addition to the prize authority to conduct the competition.
Did you go to law school and never hear the words "other transaction"? Or are you working in a group that doesn't have expertise in other transactions and want a sanity check on what 10 U.S.C. 4022 means? Are you interested in hearing how the lawyers approach an OT issue? Set aside this hour once a month to spend with the DAU Learning Director for Other Transactions and attorneys from The United States Army Judge Advocate General's School. Plan to listen to information on a timely topic and then have the opportunity to ask a question or weigh in as part of a response.
This series is intended to facilitate conversations among federal employees. Contractor employees, in-house and private sector counsel should contact the DAU Learning Director for Other Transactions before registering.
This target audience for this series is counsel with the goal to be able to share ideas and lessons learned. If you are not counsel (but are a federal employee), you are welcome to attend and ask questions. However, information obtained through the OT Counsel Corner does not substitute for legal advice from your assigned attorney.
Did you go to law school and never hear the words "other transaction"? Or are you working in a group that doesn't have expertise in other transactions and want a sanity check on what 10 U.S.C. 4022 means? Are you interested in hearing how the lawyers approach an OT issue? Set aside this hour once a month to spend with the DAU Learning Director for Other Transactions and attorneys from The United States Army Judge Advocate General's School. Plan to listen to information on a timely topic and then have the opportunity to ask a question or weigh in as part of a response.
This series is intended to facilitate conversations among federal employees. Contractor employees, in-house and private sector counsel should contact the DAU Learning Director for Other Transactions before registering.
This target audience for this series is counsel with the goal to be able to share ideas and lessons learned. If you are not counsel (but are a federal employee), you are welcome to attend and ask questions. However, information obtained through the OT Counsel Corner does not substitute for legal advice from your assigned attorney.
Have an OT question? We might have an answer! Join DAU’s OT subject matter experts during office hours where they will connect people, ideas, resources, and information.
The OT Cross Talk is a forum to engage DoD OT representatives to share OT policy, training opportunities, knowledge, success stories, best practices, and lessons learned with each other.
Tom Temin: Sure. Understood. All right. So give us some examples of a policy that could be reflected in price finance costing all of these issues.
John Tenaglia: Let me talk about just the week before last we issued guidance on the use of other transaction authority. That's a non-FAR-based authority.
Tom Temin: Yep.
John Tenaglia: And so this is an opportunity to somewhat normalize how other transaction agreements are executed across the department. But the balancing act we're taking there is not wanting to impose a FAR-like regulatory regime on the use of the transaction authority.
Tom Temin: Yeah, you would kill the goose.
John Tenaglia: Right. Exactly. So but we also want to demonstrate to the Congress that we're responsibly using that authority in most cases for prototypes, potentially for follow-on production. But there are some aspects to transparency of those transactions that we want to make sure that's captured. So we're not going to have a standard slate of terms and conditions for OT agreements like we have in FAR and D-FAR. But we do want to have some reporting and understanding of where those dollars are going. And also, we're recognizing the consortium style with its most recent issuance. You know, many of the components across the department are using consortium style of the transaction authority, providing some guidance about how that's done in an optimal way.
Tom Temin: Yeah. On some of the energetics, there's a big consortium around that for the Defense Department is a couple of these different consortia going and they kind of are a abstraction, layer and sourcing, right, for the D.O.D. So you've got to know what's happening under that layer.
John Tenaglia: Yeah. So that's one great example. And so we want to make sure that people are aware of that because there's a tendency to recreate some of these things. The department is a very large institution and we want to make sure that through communities of practice, people understand where they can access existing consortia.
USSOCOM Non-FAR Acquisition Tools Training (Jan 18-19, 2023)
View Announcement
More information and registration available online at https://events.sofwerx.org/nonfar/
In person attendance is preferred, but there will be a virtual component. RSVP no later than Jan 11, 2023.
SOFWERX, in collaboration with USSOCOM, will host a Non-FAR Acquisition Tools Training to include Other Transaction Authority (OTA), Middle Tier Authority (MTA) and Partnership Intermediary Agreements (PIA), led by Strategic Institute, with the goal to educate Government customers on how to utilize non-FAR contracting mechanisms as well as commercial Business to Business (B2B)/Research and Development (R&D) agreements through SOFWERX.
It's a big day for OT practitioners! Today is the day that three years' worth of work by many dedicated folks is realized with the issuance of the new DOD OT Guide. The new DOD OT Guide replaces the 2018 version. You can find it on the DAU OT Community of Practice, as well as the following:
The DoD announced today significant updates to the Innovation Pathways website that will allow it to serve as a "one-stop shop" for learning how to deliver innovation to the DoD. Located at www.ctoinnovation.mil, this site serves as a gateway for industry, small businesses, students, universities, and other organizations within the Department itself to discover opportunities with DoD organizations and affiliate programs involved in research and development.
Looking for Flexibilities to Address R&D and Emerging Needs?
View Announcement
GAO released "RESEARCH AND DEVELOPMENT: DOD Benefited from Financial Flexibilities but Could Do More to Maximize Their Use" (June 2023). The report describes five flexibilities available to DOD. According to the report, "the flexibilities’ use allowed [DOD] to address R&D and emerging needs more quickly by avoiding certain steps in the PPBE process. Agency officials stated that, because the PPBE process can take several years to make funds available for use, innovation opportunities or emerging needs can be difficult to address."
The full report is available online at: https://www.gao.gov/assets/gao-23-105822.pdf.
The Value Proposition of Consortia in Other Transactions: A Discussion of the Data and the Experience
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Register online for the next installment of OTA Today at https://www.dau.edu/event/OTA_Today_Value_Proposition_Consortia_Other_Transactions
DAU hosted the authors of "The Power of Many – Leveraging Consortia to Promote Innovation, Expand the Defense Industrial Base, and Accelerate Acquisition" to share their findings from the most comprehensive study of DoD's use of consortia for other transactions to date. Watch the presentation of their findings, and then join OTA Today for a discussion with Government practitioners to discuss the report and share their experiences choosing OT models, negotiating with consortia and administering OT awards through consortia.
DARPA's Contract Management Office will be holding comprehensive Other Transactions (OT) training on June 28-29, 2023. This training will provide a detailed overview of the history and evolution of this innovative and flexible authority as well specific sections covering common issues that arise during the planning, negotiation, and maintenance of an OT agreement. OT agreements are very different from traditional procurement contracts, grants or cooperative agreements and offer the possibility for negotiation in every aspect of the agreement. Program managers, especially those new to the government or to DARPA, would find the overview on the first day to be helpful, since it will discuss how the unique aspects of OTs can help plan programs differently and attract industry performers who might ordinarily avoid working with the federal government.
This training will be held virtually. Registration is required not later than Friday, June 23.
Among other things, the NDAA codifies the term "prototype" as defined in the OT Guide for purposes of 10 U.S.C. 4022, and authorizes Pilot Authority for the use of OTs for Installation or Facility Prototyping.
Independent Rough Terrain Center, LLC v. United States, No 24-160 (July 16, 2024). The Court of Federal Claims found it had jurisdiction over a follow-on production other transaction but dismissed the case because because the protester allowed its SAM registration to lapse, and was thus ineligible for award and lacked standing.
Kinemetrics, Inc. v. United States; No. 21-1626 (Sept. 10, 2021). The Court of Federal Claims found it had jurisdiction over the Commercial Solutions Opening because it was in connection with a procurement but denied protester’s claims challenging the Government’s award leveraging a Commercial Solutions Opening.
MD Helicopters, Inc. v. United States; No. 2:19-CV-02236-JAT (D. Ariz. Jan. 24, 2020). The protester filed a new action in federal district court in Arizona challenging the award, and the Dept. of Justice conceded district court jurisdiction under the Administrative Procedure Act, 5 USC § 701, based upon the conclusion that the Administrative Dispute Resolution Act did not repeal district court jurisdiction over non-procurement protests. Despite DOJ’s concession that the district court had jurisdiction, the district court dismissed the protest for lack of jurisdiction based on arguments made by the interveners.
Space Exploration Techs. Corp. v. United States; No. 19-742C (Aug. 26, 2019). In a post-award bid protest, the Court of Federal Claims found it lacked jurisdiction over the award of a prototype OT because the terms of the specific award did not satisfy the requirement in the Tucker Act that it be “in connection with a procurement or proposed procurement” where the award was for a prototyping other transaction and expressly stated that the competition for a FAR-based production contract would be held subsequently and separately.
United States ex re. Jackson v. Ventavia Research Group, LLC, --F.Supp.3d -- (2023) ("Such prototype agreements are executed under the DoD’s 'Other Transaction Authority' and, as a statutory matter, are not subject to FAR, which is the primary regulation otherwise used by Government agencies in their acquisition of supplies and services with appropriated funds. 10 U.S.C. § 4022(f)(2); see NSTI, LLC v. Def. Energy Ctr. Of Excellence, No. 4:19-CV-03854, (S.D. Tex. Mar. 17, 2020) ('Other Transactions are legally binding contracts that are generally exempt from federal procurement laws and regulations.')."
A consolidated and annotated version of these policies as of March 2024 has been pasted into a Word version so it is easily searchable. Use at your own risk.
This research provides an analysis of Department of Defense (DOD) use of the Commercial Solutions Opening (CSO), a new general solicitation technique to acquire innovative solutions. The purpose of this research is to identify strengths, weaknesses, and best practices of CSOs and make recommendations based on those observations.
AOs should validate and document a NDC’s status prior to OT award to ensure the conditions of 10 USC 3014 are met; an AO may run a Federal Procurement Data System (FPDS) report against the cost accounting standards (CAS) clause code.
Community
