Attachment_Model_OT_Agreement- Final.pdf

Agreement No. FXXXXX-XX-9-XXXX

Prototype Other Transaction Agreement

BETWEEN

(INSERT COMPANY NAME AND ADDRESS)

AND

THE UNITED STATES AIR FORCE

AFLCMC/HBDK

5 EGLIN STREET

HANSCOM AFB, MA 01731

CONCERNING

THREE-DIMENSIONAL EXPEDITIONARY LONG-RANGE RADAR (3DELRR)

SPEEDDEALER

This Agreement is an "Other Transaction" pursuant to 10 U. S.C. § 2371 b. This Agreement is not a procurement contract, cooperative agreement or grant agreement for purposes of FAR Subsection 31.205- 18 or for any other purpose the provisions of the Federal Acquisition Regulations (FAR), Department of

Defense Federal Acquisition Regulations Supplement (DFARS) and Air Force Federal Acquisition Regulations Supplement (AFFARS) do not apply, unless explicitly included in this agreement.

Agreement No.: FXXXXX-XX-9-XXXX Purchase Requisition No.:

Total Amount of the Agreement: Up to $500,000.00 Funds Obligated: $ Authority: 10 U.S.C. § 2371b Effective Date:

Line of Appropriation:

AA $

This Agreement is entered into between the United States of America, hereinafter called the Government, represented by The United States Air Force (USAF) and (INSERT COMPANY NAME) pursuant to and under United States Federal law.

FOR (INSERT COMPANY NAME) FOR THE GOVERNMENT

UNITED STATES AIR FORCE

(Signature) (Signature)

KEVIN W. KELLEHER,

AGREEMENTS OFFICER

TABLE OF CONTENTS

ARTICLES

ARTICLE I Scope of the Agreement ARTICLE II Term ARTICLE III Management of the Project ARTICLE IV Obligation and Payment ARTICLE V Disputes ARTICLE VI Comptroller General Access to Records ARTICLE VII Data Rights ARTICLE VIII Foreign Access to Technology ARTICLE IX Administration, Definitions and Closeout ARTICLE X Follow-On Production Contracts or Other Transactions ARTICLE XI Civil Rights Act ARTICLE XII Public Release or Dissemination of Information ARTICLE XIII Order of Precedence ARTICLE XIV Execution

ARTICLE XV OPSEC

ARTICLE XVI Enabling MITRE Support ARTICLE XVII Enabling Support Contractors ARTICLE XVIII Enabling Government Designated Contractors ARTICLE XIX Applicable Laws, Clauses, Terms and Conditions

ATTACHMENTS

ATTACHMENT 1 Report Requirements ATTACHMENT 2 Schedule of Milestones and Payments ATTACHMENT 3 Wide Area Work Flow (WAWF) Instructions ATTACHMENT 4 Reserved ATTACHMENT 5 Reserved ATTACHMENT 6 Statement of Work ATTACHMENT 7 Reserved ATTACHMENT 8 Deliverables ATTACHMENT 9 Security Requirements (DD254) ATTACHMENT 10 Existing Technical Data Products and Certification Packages ATTACHMENT 11 3DELRR Reference Documents

ARTICLE I: SCOPE OF THE AGREEMENT

The Government will execute a Middle Tier Acquisition rapid acquisition approach for 3DELRR in accordance with Section 804 of the Fiscal Year (FY) 2016 National Defense Authorization Act (NDAA) (Public Law 114-92) authority. Section 804 authority allows the Government to rapidly develop, test, and field prototypes that have been demonstrated in an operational environment within five years of the approved requirement.

The principal purpose of this agreement is to conduct a demonstration of operational capability for the fulfillment of 3DELRR requirements. The Government will assess the radar systems performance specifications focusing on system performance, manufacturability sustainability, and maintainability, which is directly relevant to enhancing the mission effectiveness of military personnel and supporting platforms and systems like the Control Reporting Center – CRC (AN/TYQ-23A).

The goal of this OT agreement is for subject Performer to successfully demonstrate operational capability of their system against 3DELRR requirements. Upon successful completion of this Prototype OT agreement, the Government may award a follow-on production agreement or contract for a quantity of up to 35 3DELRRs.

ARTICLE II: TERM

A. Term of this Agreement

The Program commences upon the effective date and continues through 30 September 2020. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this Article.

B. Termination Provisions

1. The Government may stop performance of work under this OT Agreement, in whole or in part, if the AO determines that a termination is in the Government’s best interest. Upon receipt of the Government’s thirty (30) day advanced notice of termination specifying the extent of the termination and the effective date, Performer shall and except as directed by the AO, immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due:

a. Stop work as specified in the notice.

b. Place no further orders for materials, services, or facilities, except as necessary to complete any portion of the OT Agreement not affected by the termination.

c. Terminate all orders to the extent they relate to the work terminated.

d. With approval or ratification to the extent required by the AO, settle all outstanding liabilities and termination settlement proposals arising from the termination of orders including vendor and cloud service providers agreements; the approval or ratification will be final for purposes of this article.

e. Complete performance of any work not terminated, if applicable.

2. After termination, Performer shall submit a final termination settlement proposal to the AO in the form prescribed by the AO which shall be reviewed and responded to within thirty (30) days.

C. Stop Work

1. As directed by the AO, Performer shall stop all, or any part, of the work called for under this Agreement for a period of thirty (30) days after the written order is delivered, and for any further period to which the parties may agree. The written order shall be specifically identified as a stop-work order issued under this Article. Upon receipt of the stop-work order, Performer shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the stop-work order during the period of work stoppage. Within a period of ninety (90) days after a stop-work order is delivered, or within any extension of that period to which the parties shall have agreed, the AO shall either:

a. Cancel the stop-work order; or

b. Terminate the work covered in this Agreement IAW this Article.

2. If a stop-work order issued under this Article is canceled, the Performer shall resume work.

The Government shall make an equitable adjustment in the delivery schedule, and the Agreement shall be modified, in writing, accordingly.

D. Extending the Term

The Parties may extend, by mutual written agreement. Any extension shall be formalized through modification of the Agreement by the Agreements Officer (AO) and the Performer Administrator.

ARTICLE III: MANAGEMENT OF THE PROJECT

A. Management and Program Structure

The Performer shall be responsible for the overall technical and program management, technical planning and execution of the Program. The Agreements Officer (AO), in consultation with the Program Manager (PM), shall provide recommendations to Program developments and technical collaboration and be responsible for the review and verification of the completed milestones.

B. Modifications

1. All OT Agreements modifications, except for minor or administrative corrections, shall be made by mutual agreement of the parties and be subject to negotiations. Minor administrative OT Agreement corrections (e.g. changes in paying office or appropriation data, changes to the Government personnel identified in the OT Agreement, changes in funding, etc.) may be unilaterally modified by the Government.

2. Modifications to the Terms and Conditions of the OT Agreement: The Government will be responsible for effecting all modifications to this Agreement. The Agreement shall not be considered modified unless there is a formal written modification to the Agreement signed by the Agreements Officer. The effective date of the modification will be the date the Agreement Officer signs the modification. The modification will be documented and incorporated into this Agreement into a future article or addendum.

ARTICLE IV: OBLIGATION AND PAYMENT

A. Obligation

1. The Government’s liability to make payments to the Performer is limited to only those funds obligated under the Agreement or by modification to the Agreement. The Government may obligate funds to the Agreement incrementally.

2. If a modification becomes necessary in performance of this Agreement, pursuant to Article III, Paragraph B, the AO and the Performer’s Administrator shall execute a revised Schedule of Milestones and Payments for prospective milestones.

B. Payments

1. The Parties agree that fixed payments will be made for the completion of milestones.

These payments reflect value received by the Government toward the accomplishment of this Agreement.

2. The Performer shall document the accomplishments of each completed milestone by submitting or otherwise providing the milestone report required by Attachment 1. After written verification of the accomplishment of the milestone by the AO, the Performer will submit their invoice through Wide Area Work Flow (WAWF), as detailed in Attachment 3.

3. Limitation of Funds: In no case shall the Government’s financial liability exceed the amount obligated under this Agreement.

4. Payments will be made by the cognizant Defense Finance and Accounting Service office, as indicated below, within thirty (30) calendar days of an accepted invoice in WAWF. Attachment 3 details how to submit and process invoices through WAWF.

The Performer is required to utilize the WAWF system when processing invoices and receiving reports under this Agreement. The Performer shall (i) ensure an Electronic Business Point of Contact is designated within the System for Award Management (SAM) at http://www.sam.gov and (ii) register to use WAWF at the https://wawf.eb.mil site, within ten (10) calendar days after award of this Agreement.

Step-by-step procedures to register are available at the https://wawf.eb.mil site. The Performer is directed to use the 2-in-1 format when processing invoices.

5. Payments shall be made in the amounts set forth in Attachment 2, provided the AO has verified the completion of the milestones.

6. The Performer shall maintain adequate records to account for all funding under this Agreement. Upon completion or termination of this Agreement, whichever occurs earlier, the Performer shall furnish to the AO a copy of the Final Report required by Attachment 1.

https://wawf.eb.mil/

ARTICLE V: DISPUTES

A. General

The Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Article.

B. Dispute Resolution Procedures

1. Any disagreement, claim or dispute between the Government and the Performer concerning questions of fact or law arising from or in connection with this Agreement, and, whether or not involving an alleged breach of this Agreement, may be raised only under this Article.

2. Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. In no event shall a dispute, disagreement or misunderstanding which arose more than six (6) months prior to the notification made under subparagraph B.3 of this article constitute the basis for relief under this article unless the Chief of the Contracting Office, AFLCMC/HBDK, in the interests of justice, waives this requirement.

3. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party in writing of the relevant facts, identify unresolved issues, and specify the clarification or remedy sought. Within five (10) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by the Chief of the Contracting Office, AFLCMC/HBDK. The other Party shall submit a written position on the matter(s) in dispute within thirty (30) calendar days after being notified that a decision has been requested. The Chief of the Contracting Office, AFLCMC/HBDK shall conduct a review of the matter(s) in dispute and render a decision in writing within thirty (30) calendar days of receipt of such written position. Any such joint decision is final and binding.

4. If requested within thirty (30) calendar days of the decision by the Chief of the Contracting Office, AFLCMC/HBDD, further review will be conducted by the Performer (AFLCMC/HB Director of Contracting equivalent) and the AFLCMC/HB Director of Contracting. In the event of a decision, or in absence of a decision within sixty (60) calendar days of referral to the Performer (AFLCMC/HB Director of Contracting equivalent) and the AFLCMC/HB Director of Contracting (or such other period as agreed to by the parties), either party may pursue any right or remedy provided by law in a federal court of competent jurisdiction, including any remedies available in an action before the Court of Federal Claims. Alternatively, the parties may agree to explore and establish an additional Alternate Disputes Resolution procedure to resolve this dispute.

5. The sole liability of the Performer (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) for any claim in any manner related to this Agreement, including the work, Deliverables or Services covered by this Agreement, shall be the payment of direct damages and such damages shall in no event in the aggregate exceed the payments received by the Performer under this Agreement with respect to the work hereunder. Except for the specific remedies expressly identified as such in this Agreement, Government’s exclusive remedy for any claim arising out of this Agreement shall be for Performer, upon receipt of written notice, to use commercially reasonable efforts to cure the breach at its expense, or failing that, the return of payments paid to the performer for the work related to the breach.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,

INDIRECT, SPECIAL OR PUNITIVE DAMAGE, LOSS OR EXPENSES (INCLUDING BUT NOT

LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST

SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.

C. Force Majeure

No failure or omission by the COMPANY in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement or create any liability if the same shall arise from any cause or causes beyond the control of the Parties, including but not limited to, the following: acts of God; Acts or omissions of any Government; Any rules, regulations or orders issued by any Governmental authority or by any officer, department, and agency or instrumentality thereof; fire; storm; flood; earthquake; accident;

war; rebellion; insurrection; riot; and invasion and provided that such failure or omission resulting from one of the above causes is cured as soon as is practicable after the occurrence of one or more of the above mentioned causes

ARTICLE VI: COMPTROLLER GENERAL ACCESS TO RECORDS

The AO or representative, and the Comptroller General of the United States, in its discretion, shall have access to and the right to examine, any party's to the Agreement or any entity's that participate in the performance of this Agreement, directly pertinent records involving transactions related to the Agreement for a period of three (3) years after final payment is made. If this Agreement is completely or partially terminated, the records relating to the work terminated shall be made available for three (3) years after any resulting final termination settlement. Records relating to litigation or the settlement of claims arising under or relating to this agreement shall be maintained until such litigation or claims are finally resolved.

This paragraph only applies to any record that is created or maintained in the ordinary course of business or pursuant to a provision of law. For this Article, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. The terms of this Article shall be included in all sub-agreements to the Agreement.

ARTICLE VII: DATA RIGHTS

A. Rights in Technical Data – Noncommercial Items

Technical Data to be Furnished with Restrictions1

Basis for Assertion2 Assert Rights Category3 Name of Person Asserting Restrictions4

1 If the assertion is applicable to items, components, or processes developed at private expense, identify both the data and each such item, component, or process.

2 Generally, the development of an item, component, or process at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose technical data pertaining to such items, components, or processes. Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.

3 Enter asserted rights category (e.g., government purpose license rights from a prior contract/agreement, rights in SBIR data generated under another contract/agreement, limited or government purpose rights under this or a prior contract/agreement, or specifically negotiated licenses).

4 Corporation, individual, or other person, as appropriate.

B. Marking of Data

Pursuant to Article VII, any Data delivered under this Agreement shall be marked with the following legend:

Use, duplication, or disclosure is subject to the restrictions as stated in Agreement FXXXXX-XX-9-XXXX between the Government and the Performer.

C. Lower Tier Agreements

The Performer shall include this Article, suitably modified to identify the Parties, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

ARTICLE VIII: FOREIGN ACCESS TO TECHNOLOGY

This Article shall remain in effect during the term of the Agreement.

A. General

Definition

a) “Foreign Firm or Institution” means a firm or institution organized or existing under the laws of a country other than the United States, its territories, or possessions. The term includes, for purposes of this Agreement, any agency or instrumentality of a foreign government; and firms, institutions or business organizations which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.

b) “Know-How” means all information including, but not limited to discoveries, formulas, materials, inventions, processes, ideas, approaches, concepts, techniques, methods, software, programs, documentation, procedures, firmware, hardware, technical data, specifications, devices, apparatus and machines.

c) “Technology” means discoveries, innovations, Know-How and inventions, whether patentable or not, including computer software, recognized under U.S. law as intellectual creations to which rights of ownership accrue, including, but not limited to, patents, trade secrets, mask works, and copyrights developed under this Agreement.

The Parties agree that research findings and technology developments arising under this Agreement may constitute a significant enhancement to the national defense, and to the economic vitality of the United States. Accordingly, access to important technology developments under this Agreement by Foreign Firms or Institutions must be carefully controlled. The controls contemplated in this Article are in addition to, and are not intended to change or supersede, the provisions of International Traffic in Arms Regulations (22 C.F.R. Part 120, et seq.), the National Security Program Operating Manual (NISPOM)

(DoD 5220.22-M), and the Department of Commerce’s Export Administration Regulations (15 C.F.R.

Part 730, et seq.).

B. Restrictions on Sale or Transfer of Technology to Foreign Firms or Institutions

1. In order to promote the national security interests of the United States and to effectuate the policies that underlie the regulations cited above, the procedures stated in subparagraphs B.2, B.3, and B.4 below shall apply to any transfer of Technology. For purposes of this paragraph, a transfer includes a sale of the company, and sales or licensing of Technology. Transfers do not include:

a. Sales of products or components; or

b. Licenses of software or documentation related to sales of products or components; or

c. Transfer to foreign subsidiaries of the Performer for purposes related to this Agreement; or

d. Transfer which provides access to Technology to a Foreign Firm or Institution which is an approved source of supply or source for the conduct of research under this Agreement provided that such transfer shall be limited to that necessary to allow the firm or institution to perform its approved role under this Agreement.

2. The Performer shall provide timely notice to the Government of any proposed transfers from the Performer of Technology developed under this Agreement to Foreign Firms or Institutions. If the Government determines that the transfer may have adverse consequences to the national security interests of the United States, the Performer, its vendors, and the Government shall jointly endeavor to find alternatives to the proposed transfer which obviate or mitigate potential adverse consequences of the transfer but which provide substantially equivalent benefits to the Performer.

3. In any event, the Performer shall provide written notice to the AO of any proposed transfer to a Foreign Firm or Institution at least sixty (60) calendar days prior to the proposed date of transfer. Such notice shall cite this Article and shall state specifically what is to be transferred and the general terms of the transfer. Within thirty (30) calendar days of receipt of the Performer’s written notification, the AO shall advise the Performer whether it consents to the proposed transfer. In cases where does not concur or sixty (60) calendar days after receipt and provides no decision, the Performer may utilize the procedures under Article V, Disputes. No transfer shall take place until a decision is rendered.

4. In the event a transfer of Technology to Foreign Firms or Institutions which is NOT approved by the Government takes place, the Performer shall (a) refund to the Government funds paid for the development of the Technology and (b) the Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice, or to have practiced on behalf of the United States, the Technology throughout the world for Government and any and all other purposes, particularly to effectuate the intent of this Agreement. Upon request of the Government, the Performer shall provide written confirmation of such licenses.

C. Lower Tier Agreements

The Performer shall include this Article, suitably modified, to identify the Parties, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

1. Export Compliance.

Each Party agrees to comply with U.S. Export regulations including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C. § § 2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. § 120 et seq. ; and the Export Administration Act, 50 U.S.C. app. § 2401- 2420. Each party is responsible for obtaining from the Government export licenses or other authorizations/approvals, if required, for information or materials provided from one party to another under this Agreement. Accordingly, the COMPANY shall not export, directly, or indirectly, any products and/or technology, Confidential Information, Trade Secrets, or Classified and Unclassified Technical Data in violation of any U.S. Export laws or regulations.

2. Flowdown.

The COMPANY shall include this Article, suitably modified, to identify all Parties, in all lower tier agreements. This Article shall, in turn, be included in all sub-tier subcontracts or other forms of lower tier agreements, regardless of tier.

ARTICLE IX: ADMINISTRATION, DEFINITIONS AND CLOSEOUT

A. Administration

Below is a list of the Points of Contact for the Performer and the Government. Each Party may change its representatives named below by written notification to the other party. The Government will affect the change following the procedures in Article II.

Unless otherwise provided in this Agreement, approvals permitted or required to be made by the AFLCMC/HBDK contracting activity may be made only by the AFLCMC/HBDK Contracting Activity Agreements Officer. Administrative and contractual matters under this Agreement shall be referred to the following representatives of the parties:

1. Government Points of Contact:

Kevin Kelleher Agreements Officer (AO)

AFLCMC/HBDK

Theater Battle Control Division Hanscom AFB, MA 01731 AFLCMC.3DELRR.org@us.af.mil

Lt Col Matthew Judge Program Manager (PM)

AFLCMC/HBDD

Theater Battle Control Division mailto:AFLCMC.3DELRR.org@us.af.mil

Hanscom AFB, MA 01731 AFLCMC.3DELRR.org@us.af.mil

Robert Hylton Agreements Specialist (AS)

AFLCMC/HBDK

Theater Battle Control Division Hanscom AFB, MA 01731 AFLCMC.3DELRR.org@us.af.mil

2. Performer’s Points of Contact

Administrative/Contracting:

(NAME), (TITLE)

(PHONE NUMBER)

(EMAIL)

Program Manager:

(NAME), (TITLE)

(PHONE NUMBER)

(EMAIL)

Each party may change its representatives named in this Attachment by written notification to the other party.

B. Definitions

In this Agreement, the following definitions apply:

Agreement: The body of this Agreement and Attachments 1 – 9, which are expressly incorporated in and made a part of the Agreement.

Data: Recorded information, regardless of form or method of recording, which includes but is not limited to, technical data, software, maskworks and trade secrets. The term does not include financial, administrative, cost, pricing or management information and does not include subject inventions, included in Article VII.

Foreign Firm or Institution: A firm or institution organized or existing under the laws of a country other than the United States, its territories, or possessions. The term includes, for purposes of this Agreement, any agency or instrumentality of a foreign government; and firms, institutions or business organizations which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.

Effective Date: Date when this Agreement is signed and executed by the Agreements Officer for the Government.

Government: The United States of America, as represented by the USAF.

Government Purpose Rights: The rights to use, duplicate, or disclose Data, in whole or in part and in any manner, for Government purposes only, and to have or permit others to do so for Government purposes only.

Invention: Any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code.

Know-How: All information including, but not limited to discoveries, formulas, materials, inventions, processes, ideas, approaches, concepts, techniques, methods, software, programs, documentation, procedures, firmware, hardware, technical data, specifications, devices, apparatus and machines.

Limited Rights: Rights to use, modify, reproduce, release, perform, display, or disclose Data, in whole or in part, within the Government.

Made: Relates to any invention means the conception or first actual reduction to practice of such invention.

Party: Includes the Government (represented by the USAF), or the Performer, or both.

Performer: The Contractor.

Practical application: To manufacture, in the case of a composition of product; to practice, in the case of a process or method, or to operate, in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is capable of being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

Program: Research and development being conducted by the Performer, as set forth in Article I.

Property: Any tangible personal property other than property actually consumed during the execution of work under this agreement. For purposes of this article, "property" does not include the deliverable prototype which is the (INSERT DELIVERABLE).

Subject Invention: Any invention conceived or first actually reduced to practice in the performance of work under this Agreement.

Technology: Discoveries, innovations, Know-How and inventions, whether patentable or not, including computer software, recognized under U.S. law as intellectual creations to which rights of ownership accrue, including, but not limited to, patents, trade secrets, maskworks and copyrights developed under this Agreement.

Unlimited Rights: Rights to use, duplicate, release, or disclose, Data, in whole or in part, in any manner and for any purposes whatsoever, and to have or permit others to do so.

C. Closeout

1. The Performer shall, at least sixty (60) days prior to the expiration date of the award, contact the cognizant AO to establish:

(a) All steps needed to close out the award;

(b) A schedule for completing those steps;

2. The following provisions shall apply to closeout:

(a) The responsible AO and Payment Office shall expedite completion of steps needed to close out awards and make prompt final payments to the Performer

(b) The Performer shall account for any real property and personal property received from the

Federal Government in accordance with the terms of the Agreement.

3. The closeout of this Agreement does not affect any of the following:

(a) Any specified audit requirements

(b) Any specified property management requirements

(c) Records retention as required by the agreement

4. After closeout of this Agreement, a responsibility or requirement created under this

Agreement may be modified or ended in whole or in part with the consent of the Agreements Officer and the Performer, provided the responsibilities of the Performer referred to in the Agreement, including those for property management as applicable, are considered and provisions are made for continuing responsibilities of the Performer, as appropriate.

ARTICLE X: FOLLOW-ON PRODUCTION CONTRACTS OR OTHER TRANSACTIONS

In accordance with 10 U.S.C. § 2371b, the Government may award a follow-on production contract or Other Transaction (OT) for up to 35 3DELRRs to the Performer, or a recognized successor in interest to the OT, following the successful completion of this entire Agreement, as modified.

The successful completion of the technical objectives for this prototype project will be measured and monitored through Government oversight and participation in preplanned milestone review points outlined in the SOW contained in the OT Agreement. At each one of these milestone events, the Government will review the progress towards the technical objectives and ultimate successful completion of the OT Agreement.

Successful completion means completion of the following:

1. Existing Technical Data and Certification Packages submitted as required

2. Radar System Technical Review completed

3. Performer successfully operates system during demonstration and submits data to Government (First delivery of C-001)

The information obtained through the SpeedDealer phase will be used to assess the maturity of system, scope RDT&E effort, and determine the required Government Test and Evaluation. The magnitude of a potential follow-on production award would be for up to 35 3DELRRs. The Government reserves the right to use any information from the prototype OT performance and any other Government-verified information to inform the follow-on decision.

ARTICLE XI: CIVIL RIGHTS ACT

This Agreement is subject to the compliance requirements of Title VI of the Civil Rights Act of 1964 as amended (42 U.S.C. § 2000d) relating to nondiscrimination in Federally assisted programs. The Performer has signed an Assurance of Compliance with the nondiscriminatory provisions of the Act.

ARTICLE XII: PUBLIC RELEASE OR DISSEMINATION OF INFORMATION

1. There shall be no dissemination or publication, except within and between the Performer and any subcontractors, of information developed under this Agreement or contained in the reports to be furnished pursuant to this Agreement without prior written approval of the AO or the PM.

2. All public release or dissemination of information shall be accomplished in accordance with the 3DELRR SCG.

ARTICLE XIII: ORDER OF PRECEDENCE

In the event of any inconsistency between the terms of this Agreement and the language set forth in the Attachments, the inconsistency shall be resolved by giving precedence in the following order: (1) The Agreement, (2) all Attachments to the Agreement.

ARTICLE XIV: EXECUTION

This Agreement constitutes the entire agreement of the Parties and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions among the Parties, whether oral or written, with respect to the subject matter hereof. This Agreement may be revised only by written consent of the Performer and the AO. This Agreement, or modifications thereto, may be executed in counterparts each of which shall be deemed as original, but all of which taken together shall constitute one and the same instrument.

ARTICLE XV: OPSEC

1. The Performer agrees to insert terms that conform substantially to the language of this article, including this paragraph, in all sub-agreements under this Agreement that involve access to classified information.

2. Access and General Protection/Security Policy and Procedures. All contractor employees, including subcontractor employees, shall comply with all installation and facility access and local security policies and procedures (provided by Government representative), and security/emergency management exercises. The contractor shall also provide all information required for background checks to meet installation access requirements to be accomplished by the Installation Provost Marshal Office, Director of Emergency Services, or Security Office. The contractor workforce shall comply with all personal identity verification and accountability requirements as directed by DoD, HQDA, and/or local policy.

Should the Force Protection Condition (FPCON) at any individual facility or installation change, the Government may require changes in contractor security matters or processes. During FPCONs Charlie and Delta, services/installation access may be discontinued/postponed due to higher threat. Services will resume when FPCON level and/or threat is reduced to an acceptable level as determined by the Installation Commander. Contractor person working on an installation shall participate in the installation

Random Antiterrorism Measures Program as directed. Contractor shall be subject to and comply with vehicle searches, wearing of ID badges, etc.

3. iWatch (See Something, Say Something) Training: All contractor employees, including subcontractor employees, shall receive training and participate in the local iWATCH program (training standards provided by the requiring activity ATO). This locally developed training will be used to inform employees of the types of behavior to watch for and instruct employees to report suspicious activity to the AO. This training shall be completed within forty-five (45) calendar days after agreement start date or effective date of incorporation of this requirement into the agreement, whichever applies, and then annually thereafter. The contractor shall submit certificates of completion for each affected contractor employee and subcontractor employee to the AO within fourteen (14) calendar days after completion of training by all employees and subcontractor personnel.

4. Access to DoD Facility or Installation: All contractor employees, including subcontractor employees, shall comply with adjudication standards and procedures using the National Crime Information Center Interstate Identification Index (NCIC-III) and Terrorist Screening Database;

applicable installation, facility and area commander installation and facility access and local security policies and procedures (provided by the AO).

5. Information Management Information Technology/IA: This project will access For Official Use Only (FOUO) information via UPS mail, Safe Access File Exchange (SAFE) or approved Impact Level cloud service providers. The attached DD254 sets forth the requirements for the Performer with regard to the storage, handling, receiving or otherwise managing of the aforementioned information on its corporate servers or network.

6. For Official Use Only Information (FOUO) and Controlled Unclassified Information (CUI): See DD254

7. OPSEC Training: In accordance with DoDM 5205.02-M, new contractor employees, including subcontractor employees, shall complete initial OPSEC training within thirty (30) calendar days of award and must also complete annual OPSEC awareness as provided by the appropriately designated OPSEC level II trained OPSEC Officer/Coordinator. The contractor shall arrange training through the

AO.

8. Public Release of Information: In accordance with DoDM 5205.02-M, an OPSEC review will be performed by the Government prior to all public release of information. All Government information intended for public release by a contractor shall undergo a Government OPSEC review prior to release. The OPSEC review will be performed as part of the Public Review Process described in Article XII.

ARTICLE XVI: ENABLING MITRE SUPPORT

1. This OT Agreement is under the general program management of the AFLCMC/HBDD.

AFLCMC/HBDD has entered into a contract with The MITRE CORPORATION, a Federally Funded Research and Development Center (FFRDC), for the services of a technical group that will support the AFLCMC/HBDD program office.

2. In the performance of this OT Agreement, Performer agrees to support performance of this OT Agreement by using commercially reasonable efforts to cooperate with The MITRE Corporation by 1) responding to invitations from authorized U. S. Government personnel to attend meetings; 2) by discussing technical matters solely relating to this OT Agreement; 3) by providing access to Performer facilities utilized in the performance of this Agreement in accordance with its standard practices; and 4) by allowing observation of technical activities in performance of this OT Agreement by appropriate technical personnel of The MITRE Corporation.

3. The MITRE Corporation personnel (i) are authorized to access information that AFLCMC/HBDD is entitled to under this OT Agreement; (ii) are authorized to discuss and disclose such technical information (including proprietary information) in furtherance of its agreements with DoD organizations.

4. The MITRE Corporation shall protect the proprietary information of Performer in accordance with the Master Non-disclosure Agreement, which The MITRE Corporation entered into with the Air Force, a copy of which is available upon request. This Master Non-disclosure Agreement satisfies the Nondisclosure Agreement requirements set forth in 10 U.S.C. §2320 (f)(2)(B), and provides that Performer is an intended third-party beneficiary under the Master Non-disclosure Agreement and shall have the full rights to enforce the terms and conditions of the Master Non-disclosure Agreement directly against The MITRE Corporation, as if they had been signatory party hereto or to enforce the terms of this Agreement against the Air Force. Performer hereby waives any requirement for The MITRE Corporation to enter into any separate company-to-company confidentiality or other non-disclosure agreements.

5. MITRE shall make the technical information (including proprietary information) available only to its Trustees, officers, employees, contract labor, consultants, and attorneys who have a need to know, and MITRE shall maintain between itself and the foregoing binding agreements of general application as may be necessary to fulfill their obligations under the Master Non-disclosure Agreement referred to herein, and MITRE agrees that it will inform Performer if it plans to use consultants, or contract labor personnel and, upon the request of Performer to have its consultants and contract labor personnel execute non-disclosure agreements directly therewith.

6. The MITRE Corporation personnel are not authorized to direct Performer in any manner.

Performer personnel are not authorized to direct MITRE personnel. AFLCMC/HBDD is responsible for directing MITRE personnel to conduct themselves in furtherance of this OT Agreement, to comply with Performer’s applicable policies when they are at Performer facilities or accessing its corporate network.

ARTICLE XVII - ENABLING SUPPORT CONTRACTORS

1. This OT Agreement is under the general program management of AFLCMC/HBDD.

AFLCMC/HBDD has or may enter into contracts to provide Advisory and Assistance Services (A&AS) or Engineering and Professional Administrative Support Services (EPASS): If the roles of the employees under the aforementioned contracts change and they begin to perform activities that fall under those described in Article 23, then Article 23 will govern. If such change will occur, the Government will notify the Performer in writing no less than five (5) business days prior to the start of their performance.

2. In the performance of this OT Agreement, the Performer agrees to support performance of this OT Agreement by using commercially reasonable efforts to cooperate with contractors from these companies by discussing technical matters solely relating to this OT Agreement.

3. AFLCMC/HBDD may provide information that the Performer provides to

AFLCMC/HBDD under the terms of this OT Agreement to employees from the companies above who have a need to access such information to fulfill their obligations under their respective agreements with AFLCMC/HBDD and are subject to Federal information handling rules and regulations.

ARTICLE XVIII - ENABLING GOVERNMENT DESIGNATED CONTRACTORS

1. This OT Agreement is under the general program management of AFLCMC/HBDD.

AFLCMC/HBDD has or may enter into contracts with one or more companies which have employees with skills to contribute to the performance of this OT Agreement and the SOW. Once the names of such contractors are known, the Government will notify the Performer in writing no less than five (5) business days prior to the start of their performance. The Performer shall provide access to its facilities and networks utilized in the performance of this OT Agreement in accordance with its standard policies and practices, and reserves the right to withdraw such access in accordance with them. AFLCMC/HBDD is responsible for ensuring that such contractors conduct themselves consistent with the agreement between such companies and the government and in furtherance of this OT Agreement.

2. In the performance of this OT Agreement, the Performer agrees to support performance of this OT Agreement by using commercially reasonable efforts to cooperate with contractors from these companies by 1) discussing technical matters solely relating to this OT Agreement; and 2) and by supporting such contractors contributions to the performance of the SOW in accordance with the agreement between the contractor and the Government.

3. AFLCMC/HBDD may provide information that the Performer provides to AFLCMC/HBDD under the terms of this OT Agreement to employees from such companies above who have a need to access such information to fulfill their obligations under their respective agreements with AFLCMC/HBDD and are subject to Federal information handling rules and regulations.

ARTICLE XIX – APPLICABLE LAWS, CLAUSES, TERMS AND CONDITIONS

Availability of Funds Funds are not presently available for this contract. The Government's obligation under this contract is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise until funds are made available to the Agreements Officer for this contract and until the Contractor receives notice of such availability, to be confirmed in writing by the Agreements Officer.

Procurement Integrity Act The Procurement Integrity Act prohibits the release of source selection and contractor bid or proposal information. Also, a former employee who served in certain positions on a procurement action or contract in excess of $10 million is barred for one year from receiving compensation as an employee or consultant from that contractor as implemented by 48 C.F.R. § 3.104-1-11 is applicable to this OT Agreement.

Procurement Ethics Requirements For the purposes of 41 USC Chapter 21 only, this OT Agreement shall be treated as a Federal agency procurement.

Whistleblower Protection Act This OT Agreement is subject to the compliance with Title V of the Whistleblower Protection Act of 1989 relating to the protections available to Federal employees against prohibited personnel practices, and for other purposes. Performer agrees to comply with the applicable provisions of the Act.

Environmental, Safety, And Health Responsibility Performer shall comply with all applicable Federal, State, and local environmental, safety, and health laws and regulations. Performer is responsible for assuring all Government Facilities procedures are followed and necessary permits for performing projects under this OT Agreement are in place before performing activities requiring such permits. Any cost resulting from the failure of Performer to perform this duty shall be borne by Performer.

US Flag Air Carriers Travel supported by U.S. Government funds under this agreement shall use U.S.-flag air carriers (air carriers holding certificates under 49 U.S.C. § 41102) for international air transportation of people and property to the extent that such service is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974 ( 49 U.S.C. § 40118) and the interpretative guidelines issued by the Comptroller General of the United States in the March 31, 1981, amendment to Comptroller General Decision B 138942. (See General Services Administration amendment to the Federal Travel Regulations, Federal Register (63 FR 63417-63421.))

Combating Trafficking in Persons

(1) Policy. In accordance with 22 U.S.C. Chapter 78, the United States Government has adopted a policy prohibiting trafficking in persons.

(2) In accordance with this statute, this agreement, may be terminated by the Government, without penalty, if Performer uses labor recruiters, brokers, or other agents who engage in-

(a) severe forms of trafficking in persons;

(b) the procurement of a commercial sex act during the period of time that the grant, contract, or cooperative agreement is in effect;

(c) the use of forced labor in the performance of the grant, contract, or cooperative agreement; or

(d) acts that directly support or advance trafficking in persons, including the following acts:

(i) Destroying, concealing, removing, confiscating, or otherwise denying an employee access to that employee's identity or immigration documents.

(ii) Failing to provide return transportation or pay for return transportation costs to an employee from a country outside the United States to the country from which the employee was recruited upon the end of employment if requested by the employee, unless-

(A) exempted from the requirement to provide or pay for such return transportation by the Federal department or agency providing or entering into the grant, contract, or cooperative agreement; or

(B) the employee is a victim of human trafficking seeking victim services or legal redress in the country of employment or a witness in a human trafficking enforcement action.

(iii) Soliciting a person for the purpose of employment, or offering employment, by means of materially false or fraudulent pretenses, representations, or promises regarding that employment.

(iv) Charging recruited employees unreasonable placement or recruitment fees, such as fees equal to or greater than the employee's monthly salary, or recruitment fees that violate the laws of the country from which an employee is recruited.

(v) Providing or arranging housing that fails to meet the host country housing and safety standards.

Insurance-Work on a Government Installation

(a) The Contractor shall, at its own expense, provide and maintain during the entire performance of this contract, at least the kinds and minimum amounts of insurance required in the Schedule or elsewhere in the contract.

(b) Before commencing work under this contract, the Contractor shall notify the Contracting Officer in writing that the required insurance has been obtained. The policies evidencing required insurance shall contain an endorsement to the effect that any cancellation or any material change adversely affecting the Government’s interest shall not be effective-

(1) For such period as the laws of the State in which this contract is to be performed prescribe; or

(2) Until 30 days after the insurer or the Contractor gives written notice to the Contracting Officer, whichever period is longer.

(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in subcontracts under this contract that require work on a Government installation and shall require subcontractors to provide and maintain the insurance required in the Schedule or elsewhere in the contract. The Contractor shall maintain a copy of all subcontractors’ proofs of required insurance, and shall make copies available to the Contracting Officer upon request.

(End of clause)

Privacy or Security Safeguards

(a) The Contractor shall not publish or disclose in any manner, without the Contracting Officer’s written consent, the details of any safeguards either designed or developed by the Contractor under this contract or otherwise provided by the Government.

(b)To the extent required to carry out a program of inspection to safeguard against threats and hazards to the security, integrity,…