Other Transactions Agreements (OTs): A Tool for Enhancing CSRE-DARPA - - PowerPoint PPT Presentation

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Other Transactions Agreements (OTs): A Tool for Enhancing CSRE-DARPA Collaboration

Crane Lopes General Counsel Defense Advanced Research Projects Agency (DARPA) https://www.darpa.mil/

January 15, 2019

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Bottom Line Up Front (BLUF)

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• OTs offer CSRE a Department of Defense (DoD)

agreement type that is excluded from most federal procurement laws and regulations. OTs can be negotiated to meet the project needs of CSRE and the DoD partner

• I will briefly discuss OTs to distinguish them from

traditional procurement agreements: contracts, grants, and cooperative agreements

• I will summarize two DARPA OT projects (space

launch and synthetic biology technologies) to give you a sense of how PSU/CSRE and DARPA could use OTs to broaden our research collaboration

So, what are OTs?

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Other transactions are legally binding instruments, other than contracts, grants, or cooperative agreements that generally are not subject to federal laws and regulations applicable to procurement contracts. These instruments are used for various purposes by federal agencies that have been granted statutory authority permitting their use.

(GAO B-416061, 2018, p. 1)

• The OT authorities were created to give DoD the flexibility necessary to

adopt and incorporate business practices that reflect commercial industry standards and best practices into its award instruments . . . OTs can help:  Foster new relationships and practices involving traditional and nontraditional defense contractors, especially those that may not be interested in doing FAR based contracts with the Government  Broaden the industrial base available to Government  Support dual-use projects  Encourage flexible, quicker, and cheaper project design and execution  Leverage commercial industry investment in technology development and to partner with industry to ensure DoD requirements are included in future technologies and products  Collaborate in innovative arrangements

Purpose of OTs (DoD OT Guide, 2018, pp. 4-5)

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Where did OTs originate?

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In 1958, Congress created NASA under the Space Act (Pub. L. No. 85-658, 1958). The Space Act allowed NASA to “enter into other transactions as may be necessary” (Pub. L. No. 85-658, 1958, Sec. 203(a)(5)). NASA used this authority to carry out a variety of innovative contractual arrangements with the private space industry, for instance, to build and launch the first communication satellites (Dunn, 2009). NASA refers to these as Space Act agreements.

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• Department of Defense (DoD)

10 U.S.C. 2371a/2371b

• Department of Energy (DOE)

42 U.S.C. 7256(g)

• DOE Advanced Research Project Agency (ARPA-E) 42 U.S.C. 16358(f)
• Department of Health & Human Sciences (HHS)

42 U.S.C. 247d-7e(a)(3)

• HHS National Institutes of Health (NIH)

42 U.S.C. 285-3(b)(3); 42 U.S.C. 284n(b)(1)

• Department of Homeland Security (DHS)

6 U.S.C. 391(a)(1)

• DHS Domestic Nuclear Detection Office (DNDO)

6 U.S.C. 596(1)

• DHS Transportation Security Agency (TSA)

49 U.S.C. 114(m)

• Department of Transportation (DoT)

49 U.S.C. 5312(a)(1), (b)(2)

• DoT Federal Aviation Administration (FAA)

49 U.S.C. 106(1)(6)

• NASA

51 U.S.C. 20113(e)

11 Federal Agencies with OT Authority (https://www.law.cornell.edu/uscode/text)

Distribution Statement A 7 Federal Agency 2010 2011 2012 2013 2014 Advanced Research Projects Agency-Energy (ARPA-E) 3 3 3 3 DoD 69 76 88 77 79 Department of Energy (DOE) 2 3 3 3 3 Department of Health and Human Services (HHS) 1 1 Department of Homeland Security (DHS) 19 14 8 4 3 Department of Transportation (DOT) 75 54 30 26 21 Federal Aviation Administration (FAA) 44 48 54 60 65 Transportation Security Agency (TSA) 2,217 2,611 2,891 3,080 3,223 National Institutes of Health (NIH) 6 6 6 5 5 NASA 408 435 564 579 637

Number of OTs, fiscal years 2010-2014 (GAO-16-209)

DoD Organization 2011 2012 2013 2014 2015 DARPA 69.1 33.1 25.2 38.3 57.8 DTRA 65.8 21.4 6.8 2.8

• Air Force

0.3 5.1 0.7 1.6

• Army

476.8 391.9 314 529.9 580.3 Navy

• 1.1

2.7 2.3

DoD OT spending, fiscal years 2011-2015 (dollars in millions) (DoD DPAP, 2015)

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• Research OTs (10 U.S.C. 2371a)
• Prototype OTs (10 U.S.C. 2371b)
• Production OTs (10 U.S.C. 2371b)

Three Types of OTs (DoD OT Guide, 2018, p. 7)

Traditional procurement agreement

• Regulated by the FAR/DFARS
• Mandatory terms and conditions
• Mandatory accounting and audit

requirements

• No cost-sharing
• Formalized payment procedure
• Standard IP clauses
• Government owns all tangible

property

• Mandatory disputes process
• Mandatory termination process

OT

• Not regulated by the FAR/DFARS
• Few mandatory terms and

conditions

• No mandatory accounting and

audit requirements

• Cost-sharing common
• Payment procedure negotiable
• IP rights tailored for the project
• Property ownership negotiable
• Disputes process negotiable
• Termination process negotiable

Traditional procurement agreement versus an OT

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DoD OT policies (https://aaf.dau.mil/ot-guide/info/)

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• DoD OT Guide (Dec. 3, 2018 ed.), https://aaf.dau.mil/ot-guide/
• Mostly guidance, not binding policy
• But widely used by DoD and contractors to help solicit, negotiate and

administer OTs

• Provides useful guidance on planning, publicizing, soliciting,

evaluating and administering OTs

• Practice tip: review the guide before negotiating an OT with DoD

The DoD OT guide

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DARPA overview

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• For sixty years, DARPA has held to a singular and enduring mission:

to make pivotal investments in breakthrough technologies for national security

• The genesis of that mission and of DARPA itself dates to the launch
• f Sputnik in 1957, and a commitment by the United States that,

from that time forward, it would be the initiator and not the victim of strategic technological surprises

• DARPA comprises approximately 220 government employees in six

technical offices, including nearly 100 program managers, who together oversee about 250 research and development programs

• DARPA is located in Arlington, VA

DARPA history

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DARPA budget and spending

92%

• f funding to

projects

DoD Military Systems Development $43.5B DoD S&T $13.7B DARPA $3.4B NIH DoE NSF NASA All

• ther

Federal R&D FY 2019 R&D Budget $118B 34613379 31513081 279129413031298229463069 3378 $0 $500 $1,000 $1,500 $2,000 $2,500 $3,000 $3,500 FY 09 FY 10 FY 11 FY 12 FY 13 FY 14 FY 15 FY 16 FY 17 FY 18 FY19

Annual DARPA Budget (in millions)

67%

to industry

17%

to universities

25%

• f total DoD

S&T funding

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DARPA technical offices

BIOLOGICAL TECHNOLOGIES OFFICE DEFENSE SCIENCES OFFICE INFORMATION INNOVATION OFFICE MICROSYSTEMS TECHNOLOGY OFFICE TACTICAL TECHNOLOGY OFFICE STRATEGIC TECHNOLOGY OFFICE

Biology for Security

• Outpacing

Infectious Disease

• Neurotechnology
• Gene Editing &

Synthetic Biology

• Frontiers in Math,

Computation & Design

• Limits of Sensing

& Sensors

• Complex Social

Systems

• Anticipating

Surprise

• Symbiosis: Partner

with Machines

• Analytics:

Understand the World

• Cyber: Deter

Cyber Attack

• Electromagnetic

Spectrum

• Tactical

Information Extraction

• Globalization

Enterprise Disruption: Platforms, Systems, and Technologies that Enable New Warfighting Constructs Crosscutting Themes

• Eliminate High-

Value Assets

• Exploit Cross-

Domain Seams

• Enable Decision-

Making Asymmetry Win In Any Environment via Adaptive Kill Webs

• Sensing
• Comms,

Command, Control

• Effects

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Example OT: Experimental Space Plane (XS-P)

Distribution Statement A

• CRANE WILL BRING VERSION WITH VIDEO EMBEDDED (18MB)

Example OTs: Living Foundries

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CSRE “The Center for Security Research and Education (CSRE) at Penn State promotes research and education to protect people, infrastructure, and institutions from the broad range of hazards confronting society today. CSRE programs enhance understanding of security threats and their underlying causes; strategies and practices for preventing these threats; the effects of preventative efforts on individual liberties; and the consequences if or when prevention fails.” (CSRE Mission, https://csre.psu.edu/) DARPA “DARPA serves as the research and development (R&D) organization in DoD with a primary responsibility of maintaining U.S. technological superiority over our adversaries.” (DoD Directive 5134.10, https://www.esd.whs.mil/Portals/54/D

• cuments/DD/issuances/dodd/513401

p.pdf)

CSRE and DARPA: similar missions

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Current PSU collaboration with DARPA

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• Cooperative Agreement: Generative Adversarial Networks for

Design Exploration and Refinement (GANDER) (2017) [$150K]

• Cooperative Agreement: Textured Piezoelectrics Tailored for

High Power Acoustic Transduction (2018) [$627K]

• Cooperative Agreement: Advanced Computational Toolkit for

Engineered Optical Materials (2017 [$535K]

• Contract: Open Manufacturing Program (2015) [$4.7M]
• Two PSU/ARL employees are currently on IPA details to

DARPA: Dr. Carey Schwartz, and Dr. Jim Galombos; both assigned to DARPA technical offices

Three ways for CSRE to engage with DARPA

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Talk to a DARPA Program Manager (PM)

• Email/phone/face to face throughout

the year

Concepts → New Ideas Seedling Programs: Disbelief → “Mere” Doubt Formal Programs: Possibility → Capability

Respond to DARPA program BAAs Submit ideas to a DARPA Office-Wide BAA

(http://www.darpa.mil/work-with-us/office-wide-broad- agency-announcements)

Approved for Public Release; Distribution Unlimited

www.darpa.mil

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