DRAFT_OTA Solicitation TandCs (28 Oct 22).docx

Terms and Conditions

This OTA and all prototype projects awarded under it are limited to the authority of 10 U.S. Code 4022. Unless specifically negotiated on individual prototype project(s), the following articles will remain in effect for all work under this OTA.

Part 1. Definitions "Agreement" or "OTA" refers to this Other Transaction Agreement between the United Stated Government (USG) and the Consortium Manager (CM).

"Agreements Officer (AO)" is a warranted Agreements Officer authorized to sign, modify this Agreement, and execute associated projects under this Agreement on behalf of the USG. AOs may be from the Air Force or United States Army on decentralized agreement.

"Awardee" means Non-traditional or Traditional Defense Contractors, including small and large businesses, for- profit and nonprofit entities, and academic research institutions that are signatories to the Consortium Membership Agreement.

"Cash Contribution" means the CM's and/or Awardee(s)' financial resources expended to conduct projects awarded under this Agreement. The cash contribution can be derived from the CM's and/or Awardee(s)' funds or outside sources or may also come from non-federal contract or grant revenues or from profit or fee on a federal procurement contract. The CM and/or Awardee(s)' own source of funds may include corporate retained earnings, current or prospective Independent Research and Development (IR&D) funds or any other indirect cost pool allocation. New or concurrent IR&D funds can be utilized as a cash contribution provided those funds identified by the CM and/or Awardee(s) is/are to be spent on the conduct of a Project Agreement. Prior IR&D will not be considered as part of the CM and/or Awardee(s)' cash or In-Kind Contributions, nor will fee on the project awarded under this Agreement be considered on the CM and/or Awardee(s)' cost- sharing portion. Cash contributions include the funds the CM and/or Awardee(s) will spend for labor (including benefits and direct overhead), materials, new equipment (prorated if appropriate), subawardee efforts expended on a project, and restocking the parts and material consumed under an individual project awarded under this Agreement.

"Consortium Membership Agreement (CMA)" means the agreement established under this agreement that governs the rights and obligations of the awardees "Effective Date" means the date when this Agreement is signed and executed by the Agreements Officer.

"In-Kind Contribution" means the Awardee's nonfinancial resources expended by the Awardee to perform under a project, such as wear and tear on in-place capital assets like machinery or the prorated value of space used for the execution of a project, and the reasonable fair market value (appropriately prorated) of equipment, materials, and other property used in the performance of the project.

"Milestone" means a scheduled event signifying the completion of a major deliverable or a set of related deliverables. This approved payable milestone will represent a predetermined dollar amount in relation to performance of a particular project under this Agreement.

"Non-traditional Defense Contractor" (10 USC 3014) means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section.

"Open System Architecture" is a system that employs modular design, uses widely supported and consensus based standards for its key interfaces, and has been subjected to successful validation and verification tests to ensure the openness of its key interfaces. An open architecture is defined as a technical architecture that adopts open standards supporting a modular, loosely coupled and highly cohesive system structure that includes publishing of key interfaces within the system and full design disclosure.

"Other Transactions for Prototype" refers to this type of Other Transaction Agreement (OTA). This type of OTA is authorized by DoD Authorization and is found in 10 U.S.C. 4022. Section 815 of Public Law 114-92, as amended, authorizes the use of OTAs, under the authority of 10 U.S.C. 4022, under certain circumstances for prototype projects directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the DoD, or to improvement of platforms, systems, components, or materials in use by the armed forces. This type of OTA is treated by DoD as an acquisition instrument, commonly referred to as an "other transaction" for a research prototype project or Section 815 "other transaction".

"Project" means a prototype activity proposed by the Awardee(s) and selected by the USG for award under this Agreement.

"Prototype" means a physical or virtual model used to evaluate the technical or manufacturing feasibility or military utility of a technology, process, concept, end item, or system.

"Prototype Modification" (PM) means the modification to this OTA that will be used to document Prototype Level Performer selection decision and authorize execution of prototype requirements. Each PM will include a Statement of Work (SOW), milestone payment schedule, security and data rights requirements, award value, award type, current funding, specific key Prototype Project considerations, designated AOTR, and any other prototype unique specifications as required. The PM also includes any modifications to the PM documented either via an updated PM award.

"Recipient" means the organization or consortium that was awarded this Agreement and is represented by the CM.

"Subawardee" means a subcontractor to an awardee.

Part 2 – Articles

Intellectual Property Definitions. As used in this Article- "Background Invention" means any invention that is not a Foreground Invention.

"Foreground Invention" means any invention that was conceived or first actually reduced to practice in the performance of this OTP or a Prototype project.

"Form, fit, and function data" means information related to items, components, or processes (including software) that are sufficient to enable physical and functional interchangeability, to include information identifying source, size, configuration, mating and attachment characteristics, functional characteristics (including interfaces), performance requirements, and qualification requirements.

"Derivative Works" means any work, including, but not limited to, Software whether in Source or Object form), that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this Agreement, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof.

"Government Purpose" means any activity in which the USG is a party, including cooperative agreements with international or multinational defense organizations, or sales or transfers by the USG to foreign governments or international organizations, and includes competitive procurements and the activities of third parties carried out on the USG's behalf. Government Purpose includes additional Other Purposes when negotiated by the Parties and memorialized in writing as part of a Prototype project.

"Improvements" means all developments or modifications, to include derivative works, made in the performance of a Prototype project to any, Intellectual Property, whether registered or unregistered, existing at any time prior to execution of this OTP or, for R&D Stage work, prior to execution of the relevant Prototype project and any associated subcontract. Improvements may be patentable or unpatentable, and if patentable, need not be patented; improvements may also be subject to protection under copyright, mask work, trade secret, unfair competition or other legal principles.

"Intellectual Property" or "IP" means all rights and related priority rights, whether protected, created or arising under the laws of the United States or any other jurisdiction or international convention, arising from or in respect to the following:

patents (including utility, design, and plant patents), utility model patents, and patent applications, whether published or unpublished, including all continuations, divisionals, continuations-inpart, and provisionals and patents issuing on any of the foregoing, and all reissues, reexaminations, substitutions, renewals and extensions of any of the foregoing ("Patents");

(trademarks, service marks, trade names, trade dress, logos, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, renewals and extensions of any of the foregoing ("Marks");

copyrights, works of authorship, and moral rights, and all registrations, applications, renewals, extensions and reversions of any of the foregoing ("Copyrights");

mask works, mask sets, layouts, topographies and other design features with respect to integrated circuits ("ICs" or, singular, "IC"), and all applications and registrations of any of the foregoing ("Mask Works");

confidential and proprietary information, to include trade secrets and non-public discoveries, concepts, ideas, research and development, technology, know-how, formulae, inventions, compositions, processes, techniques, technical data and information, procedures, semiconductor device structures, circuit block libraries, designs (including circuit designs and layouts), drawings, proposals, and specifications, in each case excluding any rights of the foregoing that comprise or are protected by Patents ("Trade Secrets"); and Other intellectual property rights arising from or relating to the performance of a Prototype project, including the right to file for patent protection of any kind on any invention disclosed in an Invention Disclosure.

"Invention" means any invention or discovery that is or may be patentable or otherwise protectable under title 35 of the U.S. Code.

"Object" means any form of Software resulting from mechanical transformation or translation of Source form, including, but not limited to, compiled object code, generated documentation, and conversions to other media types.

"Other Purposes" means any authorized activity agreed to by the USG and the Awardee as part of the Prototype project.

"Pre-existing Software and Other Copyrighted Works" means Software and any other copyrighted Work, whether registered or unregistered, subsisting at any time prior to execution of this OTP or, for R&D Stage work, prior to execution of the relevant Prototype project and any associated subcontract.

"Software" means computer code of any length, intended for any purpose, and in any form, whether source or binary, including documentation and configuration files, any machine readable materials (including, but not limited to, libraries, source files, header files, and data files), any associated updates or error corrections, and any associated user manuals, programming guides and other documentation.

"Source" means the preferred form for creating Software or making modifications to Software, including but not limited to software source code (whether or not human-readable), documentation source, and configuration files.

"Work" means a work of authorship, including, but not limited to, Software (whether in Source or Object form) made available under license, usually indicated by a copyright notice that is included in or attached to the Work.

Methodology for Allocating Rights in Intellectual Property. All IP furnished, exchanged, invented, used, or otherwise created under this OTP or any Prototype project shall be subject to all but paragraph d. below. For any Prototype project having Research and Development as part of its purpose, paragraph d. shall also apply. The Parties may negotiate additional terms governing the rights in IP associated with this OTP or a Prototype project, but such terms shall include, at a minimum, the terms provided by all but paragraphs d. and f. of this Article. Prototype projects shall expressly state whether Research and Development is a part of their purpose.

General Terms.

Background Inventions. Each Party to this OTP retains all ownership right, title, and interest in its Background Inventions. Each Party hereby grants to the remaining Parties a non-exclusive, non- transferable, royalty-free, worldwide license to practice or have practiced for or on its behalf any Background Inventions necessary for the performance of this OTP and any Prototype project solely for the purposes of said performance. Unless expressly agreed to in writing, the USG neither authorizes nor consents to the infringement of any third party Background Inventions for the performance of this OTP or any Prototype project.

Pre-existing Software and Other Copyrighted Works. Each Party to this OTP retains all copyright ownership right, title, and interest in its Pre-existing Software and Other Copyrighted Works. Each party hereby grants to the remaining Parties a non-exclusive, non-transferable, royalty-free, worldwide license to reproduce, distribute, and create derivative works from said Pre-existing Software, in both Source and Object forms, and Other Copyrighted Works, necessary for the performance of this OTP and any Prototype project and solely for the purposes of said performance.

Specified Data and Other Itemized Information. The Parties shall have the unrestricted right to disclose, reproduce, distribute, modify, publicly perform and display, and permit others to do so, any data or other information that is:

Publicly available or provided by the Parties without restriction;

Form, fit, and function data; and Generated or used by the Parties in the performance of this OTP or any Prototype project unless expressly agreed otherwise in writing and so long as the information is not restricted by federal law.

Third-Party Intellectual Property. Unless expressly agreed to in writing, the USG neither authorizes nor consents to the infringement of any third party intellectual property for the performance of this OTP or any Prototype project. CM and Awardees agree that they have or timely will obtain for themselves, the USG, and other necessary Parties, sufficient legal rights (and sub-licensing rights, if needed) to any Intellectual Property owned by a Third-Party and necessary for the performance of this OTP or any Prototype project.

Additional Terms Associated with Research and Development.

Foreground Inventions. Ownership to Foreground Inventions shall be determined by U.S. patent law.

License in Foreground Inventions. CM and Awardee, whichever the case may be, hereby grant, to the USG, a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or have practiced on its behalf, all Foreground Inventions throughout the world.

Reporting of Foreground Inventions. CM and Awardee further agree:

To report any Foreground Inventions to the USG within a reasonable time of them becoming known (e.g., generally within 60 days) via written submission to the Agreements Officer;

To cooperate and execute all documents that are necessary for securing and recording the USG's interests therein; and To notify the USG of whether the CM and/or Awardee will retain ownership of the same.

Report Contents. Foreground Invention reports shall include, at a minimum, the following information:

The inventor(s) names and the Prototype project under which the invention was made;

Sufficient technical detail to convey a clear understanding of the invention; and Any publication, on sale (i.e., sale or offer for sale), or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication.

Dealings with Employees. CM and Awardee agree to take all steps necessary to effectuate the USG's rights under this Article in dealings with employees, to include requiring employees to report Foreground Inventions and to execute all papers for filing patent applications and establishing the USG's rights in Foreground Inventions.

Agreement to Assign. CM and Awardee(s) agree to assign to the USG all rights in a Foreground Invention when the CM and all Awardee(s) decide:

Not to elect ownership, Not to prosecute, or To discontinue prosecution of a Foreground Invention and to cooperate and execute all documents that are necessary for the filing, prosecution and maintenance of patent applications for any Foreground Inventions. In all such assignments, the assignor shall retain a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or have practiced on its behalf, all Foreground Inventions throughout the world.

Software and Other Copyrighted Works. Ownership to Software and Other Copyrighted Works created in the performance of this OTP or any Prototype project shall be determined by U.S. copyright law. CM and Awardee(s), whichever the case may be, hereby grant, to the USG, a non-exclusive, non- transferable, royalty-free, worldwide license to reproduce, distribute, and create derivative works from any Software and Other Copyrighted Works created in the performance of this OTP and any Prototype project and for any Government Purpose. The Parties hereby agree and shall deliver to each of the other Parties of a Prototype project a copy of all such Software and Other Copyrighted Works (including in Source and Object forms for Software) in one or more formats and at a time to be mutually agreed upon but no later than final payment.

Improvements. Ownership to Improvements shall be determined by U.S. federal law. CM and Awardee(s), whichever the case may be, shall keep the USG informed about all Improvements arising from the performance of a Prototype project. CM and Awardee(s), whichever the case may be, hereby grant, to the USG an unrestricted right to use, disclose, reproduce, distribute, modify, publicly perform and display, and permit others to do so, any Improvements for any Government Purpose and agree to deliver, in one or more formats and at a time to be mutually agreed upon but no later than final payment, such Improvements when requested by the USG.

Subcontracts. CM and Awardee(s) agree to take all steps necessary to effectuate the USG's rights under this Article, to include incorporating the substance of this Article, in any subcontract for Research and Development purposes and regardless of tier.

Rights in Project-Level Proposals. Rights in Project-Level Proposals shall be governed by the Consortium Management Agreement unless and until said proposals become a part of this OTP or a Prototype project. In such instances, the terms of this OTP and associated prototype project shall control. The Consortium Management Agreement shall dictate how all prototype proposals are to be marked and handled by the CM and its members. The Consortium Management Agreement shall also provide for the USG's evaluation of the Proposal and for the USG's rejection of any Proposal not marked in accordance with the Consortium Management Agreement. The Consortium Management Agreement shall allow for the USG to use, duplicate, and disclose a Project-Level Proposal for evaluation purposes and to return or otherwise dispose of the Proposal, in coordination with the CM, when evaluations are complete.

Warranty. The Parties hereby agree that all Intellectual Property is provided on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Each Party-to include the USG, the CM, and all Awardees-is solely responsible for determining the appropriateness of using, disclosing, reproducing, or redistributing any Intellectual Property and assumes all risk associated therewith, including validity and scope of applicable licenses.

Survival. Any confidentiality provisions associated with this Article shall survive termination or expiration of this OTP and any relevant Prototype project for a period of five years following the completion of this OTP, without regard to any provision to the contrary elsewhere in this Agreement or associated therewith.

Intellectual Property Disclosure. To the extent identifiable prior to a prototype project, any Background Invention planned to be delivered under a prototype project must be identified in writing to the Agreements Officer. Foreground inventions should also be identified in writing to the Agreements Officer when developed during the prototype project. (i) Markings. CM and Awardee(s) agree to mark all Intellectual Property with a notice or legend that is acceptable to the Agreements Officer, suitable for the subject matter, and consistent with the rights afforded herein.

Terminations The Agreements Officer may unilaterally terminate this Agreement by written notice to the CM upon finding that the CM has failed to comply with the material provisions of this Agreement. The Agreements Officer may unilaterally terminate a project funded under this Agreement by written notice to the CM upon finding that an Awardee has failed to comply with the material provisions of this Agreement.

The Agreements Officer may also unilaterally terminate performance of work under this Agreement or a project funded under this Agreement, in whole or in part, based on a reasonable determination that the Agreement/Project will not produce beneficial results commensurate with the expenditure of resources. The USG may terminate this Agreement, in whole or in part, if the AO determines that a termination is in the USG's best interest. The AO shall terminate by delivering to the CM a Notice of Termination specifying the extent of termination and the effective date.

After receipt of a Notice of Termination, and except as directed by the AO, the CM shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due:

Stop work and direct Awardees to stop work as specified in the notice Place no further projects or orders for materials, services, or facilities, except as necessary to complete the continued portion of the Agreement or project.

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

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; the approval or ratification will be final.

As directed by the AO, obtain from the Awardee under the terminated portion of the Agreement a transfer of title to the following, where applicable, and deliver to the USG: The fabricated or unfabricated parts, work in process, completed work, supplies, other material produced or acquired for the work terminated, completed or partially completed plans, drawings, information, and other property that, if the order had been completed, would have been required to be furnished to the USG.

Complete performance of any work not terminated, if applicable.

Take any action that may be necessary, or that the AO may direct, for the protection and preservation of the property related to the Agreement or any projects hereunder that is in the possession of the Awardee(s) and in which the USG has or may acquire an interest.

Use its best efforts to sell, as directed or authorized by the AO, any property of the types referred to under Article 17 - Property; provided that the CM (A) is not required to extend credit to any purchaser, and (B) may arrange for the Awardee(s) who were performing the terminated work to acquire the property under the conditions prescribed by, and at prices approved by the AO. The proceeds of any transfer or disposition of property will be applied to reduce any payments to be made to the USG under that particular project. The terms regarding disputes, patent rights, data rights shall survive any termination of the Agreement or any Project issued thereunder.

Material Breach by an Awardee. If the Awardee materially fails to comply with the provisions of the project, the AO, after issuance of a Cure Notice to the CM, and after allowing a reasonable time (no shorter than 15 days) to address noncompliance, may take one or more of the following actions as appropriate:

Temporarily withhold payments pending correction of the deficiency by the Awardee, Disallow all or part of the price of the activity or action not in compliance.

Wholly or partly suspend or terminate the current Awardee, Withhold further funding for the Project, Take any other legally available remedies.

Termination Costs. The USG, the CM and the Awardees will negotiate in good faith an equitable reimbursement for work performed toward accomplishment of the task(s) of Projects. The USG will allow full credit for the USG share of the obligations properly incurred by the CM or the Awardee(s) prior to termination. Costs incurred by CM or Awardees during a suspension or after termination of a Project are not allowable unless the Agreements Officer expressly authorizes them in either the notices of suspension, termination, or subsequent notice. Other Awardee costs incurred during a suspension or after termination which are necessary and reasonably unavoidable are allowed if:

The fees which result from obligations which were properly earned by the CM or costs properly incurred by the Awardee before the effective date of the suspension or termination, are not in anticipation of it, and in the case of a termination, are noncancellable; and The costs would be allowable if the Project was not suspended or the award expired normally at the end of the funding period in which the termination takes effect.

Failure of the parities to agree to an equitable adjustment shall be resolve pursuant to Article 3 - Disputes.

Closeout Procedure. When an individual Project is completed or terminated after the CM has received USG funding, the following closeout procedures apply:

Definitions - "Closeout" is the process by which the USG determines all applicable administrative actions and work have been completed by the Awardee and the USG. "Disallowed Costs" - those charges that the USG or its representative determines to be unallowable, in accordance with the terms of this Agreement.

The USG will make prompt payments to the CM for Payable Milestones reached but not yet paid under the Project.

The CM shall immediately refund the balance of unobligated (unencumbered) cash that the USG has paid and that is not authorized to be retained by the Awardee(s) for use in the performance of the is Agreement.

The USG will obtain from the CM within 90 calendar days after the completion of a Project, all reports specified in the Project. The USG may grant extensions when requested by the CM.

For terminated Projects, when authorized, the USG will make a settlement for any upward or downward adjustments to the USG's share of costs after reports are received based on final, actual expenditures.

The CM shall account for any property received from the USG.

Since this Agreement is incrementally funded, it may be terminated in the absence of additional USG funding.

In the event of a termination of this Agreement, it is agreed that data defined in Terms 1-6, and as developed under this Agreement, shall be disposed of in accordance with the provisions set forth in Terms 1-6.

Payment shall be made up to the last completed/accepted payable milestone. Failure of the Parties to agree to a reasonable adjustment will be resolved pursuant to the provision of Article 3 - Disputes.

In the event of a termination, the USG shall have a paid-up USG purpose license in any Subject invention, copyright work, computer software and data made or developed under this Agreement and to other inventions, copyright work, data and computer software as negotiated for individual projects under Terms 1-6.

In the event an awardee wants to terminate, it must be done by mutual agreement of the parties.

Disputes General. Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Agreement. The Department of Defense's policy is to try to resolve all issues concerning agreements by mutual agreement at the Agreements Officer's level.

Alternative Dispute Resolution (ADR): A mutually agreeable form of ADR may be utilized at any time to facilitate resolution of issues submitted under this Agreement. ADR procedures are any voluntary means used to resolve issues in controversy without resorting to formal administrative appeals or litigation.

Claims Resolution Process Awardee Claims: 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. Failing resolution by mutual agreement, the Awardee may submit to the Agreements Officer, in writing, the relevant facts, including all data that supports the claim, identifying unresolved issues and specifying the clarification or remedy sought. Within 60 days of receipt of the written claim or issue in dispute, the Agreements Officer shall either:

Prepare a written decision on the issue, including the basis for the decision, or Notify the Awardee of a specific date when he or she will render a written decision, if more time is required to do so. The notice will include the reason for delaying the decision.

Appeals: The Recipient may appeal the decision of the Agreements Officer within 90 days of receipt of the decision. The appeal must be submitted, in writing, to the Agreements Officer. Any such decision is not subject to further administrative review and shall be final and binding.

USG Claims: USG claims against an Awardee will be issued by the Agreements Officer.

Non-exclusivity of Remedies. Nothing in this Agreement is intended to limit the USG's or an Awardee's right to any remedy under the law.

Consortium Manger Bids The Consortium Manager shall not submit bids/proposals in response to USG prototyping project requirements.

Recovery of Funds This agreement as authorized by 10 USC 4001 may require an entity to make payments to the Department of Defense or any other department or agency of the Federal Government as a condition for receiving support under the agreement or other transaction.

The amount of any payment received by the Federal Government pursuant to a requirement imposed under paragraph above may be credited, to the extent authorized by the Secretary of Defense, to the appropriate account. Amounts so credited shall be merged with other funds in the account and shall be available for the same purposes and the same period for which other funds in such account are available.

Legal Entity An OT agreement for a prototype project is entered into with an entity or entities that can execute the agreement and legally bind the entity or entities. That entity may be a single company, joint venture, partnership, consortium (through its members or authorized agent), or a prime contractor with subcontract relationships, among others. An entity may only enter into agreements with the USG when it has legal authority to do so.

Funding Fiscal law requirements are applicable to prototype OTs and are contained in applicable statutes and agency regulations. Among other restrictions, the USG may not create or authorize an obligation in excess of the funds available, or in advance of appropriations (Anti-Deficiency Act, 31 U.S.C. §1341), unless otherwise authorized by law.

Limitations on Government Liability If any work under this agreement is incrementally funded, then the USG's financial liability is limited to the funding obligated to this agreement.

Protests A protest by the CM or by any consortium member shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier.

Flow down All of the OTA consortium articles shall flow down to the members unless the Agreements Officer approves exclusion in writing, on an individual project basis, of specific articles.

Price Reasonableness The USG must be able to determine that the OTA agreement and subsequent projects are fair and reasonable. The Agreements Officer may request data to help determine reasonableness. The CM agrees to disclose pricing and costs data associated with this OTA agreement and to assist the USG in obtaining the necessary pricing and cost data from consortium members when necessary to determine whether projects are fair and reasonable.

Allowable Costs A cost is allowable when the cost complies with all of the following:

Reasonable - A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person in the conduct of competitive business.

Allocable - A cost must meet one or more of the following objectives:

Is incurred specifically for the contract:

Benefits both the contract and other work, and can be distributed to them in reasonable proportion to the benefits received Is necessary to the overall operation of the business, although a direct relationship to any particular cost objective cannot be shown.

Standards of generally accepted accounting principles and practices appropriate to circumstances Terms of the contract Is not an Unallowable Cost - Costs that are expressly unallowable or mutually agreed to be unallowable, including mutually agreed to be unallowable directly associated costs, shall be identified and excluded from any billing, claim, or proposal applicable to a Government Contract. A directly associated cost is any cost that is generated solely as a result of incurring another cost, and that would not have been incurred had the other cost not been incurred. When an unallowable cost is incurred, its directly associated costs are also unallowable. 48 CFR 31.201-6 Accounting for Unallowable Costs describes the practices and presentation of accounting for unallowable costs shall apply to this agreement.

Accounting System Contractors shall have a capable accounting system and shall keep adequate records to account for Federal funds received and any cost-sharing arrangements in place.

Audit Agreements including Federal payments to a Recipient/Awardee in excess of $5,000,000.00 shall allow for the Comptroller General, at its discretion, examine the records of any party of the agreement or any entity that participates in the performance of the agreement. Additionally, independent public auditors or Government audit agencies may be used to perform audits.

Cost Sharing One condition for the use of an OTA for prototype projects is if neither a nontraditional defense contractor nor a small business concern is participating to a significant extent in the prototype project and at least one third of the total cost of the prototype project is to be paid out of funds provided by the parties to the transaction other than the Federal Government (see 10 U.S.C. §4022(d)(1)(C). The Agreements Officer also has authority to structure a cost-sharing arrangement even when not required by statute. If cost-sharing is used, then the non-Federal amounts counted as provided, or to be provided, by the business units of an awardee or subawardee participating in the performance of the OTA agreement may not include costs that were incurred before the date on which the OTA agreement becomes effective. Costs that were incurred for a prototype project by the business units of an awardee or subawardee after the beginning of negotiations, but prior to the date the OTA agreement becomes effective, may be counted as non-Federal amounts if and to the extent that the Agreements Officer determines in writing that (1) the awardee or subawardee incurred the costs in anticipation of entering into the OTA agreement; and (2) it was appropriate for the awardee or subawardee to incur the costs before the OTA agreement became effective in order to ensure the successful implementation of the OTA agreement. Cost sharing should generally consist of labor, materials, equipment, and facilities costs (including allocable indirect costs). Any part of the cost share that includes an amount for a fully depreciated asset should be limited to a reasonable usage charge. If at conclusion of the project it is determined that a Non-traditional Defense Contractor or small business did not participate to a significant extent, the overall price of that project will be reduced to no more than two-thirds of the total awarded price.

Obligation And Payment Obligation The USG’s liability to make payments to the Consortium is limited to only those funds obligated under this Agreement or by modification to the Agreement. the USG may incrementally fund this Agreement.

Payments Profit or fee is permitted for awardees of OTs for prototype projects, and will be negotiated by the USG based on the particulars of each individual situation. The CM will be responsible for administering payments to Awardees. Each prototype project will include the basis and procedures for payment.

In addition to any other financial reports provided or required, the Consortium Manager shall notify the USG AO immediately if any contribution from a Consortium Member is not made as required.

Prior to the submission of invoices to the USG by the Consortium Manager, the Consortium shall have and maintain an established accounting system which complies with Generally Accepted Accounting Principles and with the requirements of this Agreement, and shall ensure that appropriate arrangements have been made for receiving, distributing and accounting for all funding. The Parties recognize that as a conduit, the Consortium does not incur, nor does it allocate any indirect costs of its own to the Consortium Member cost directly incurred pursuant to this Agreement. Consistent with this, an acceptable accounting system will be one in which all cash receipts and disbursements are controlled and documented properly.

The Consortium Manager shall document the accomplishments of each milestone by submitting or otherwise providing a Milestone Report. The Consortium shall submit one (1) copy of all invoices to the AO for payment approval. After written verification of the accomplishment of the milestone by the USG AO, the invoices will be forwarded to the payment office within fifteen (15) calendar days of receipt of the invoices at the USG.

Address of Payee: (INSERT NAME AND ADDRESS OF PAYEE) Payments will be made by the Defense Finance and Accounting Services office, as indicated below, within 30 (thirty) calendar days of an accepted invoice in Wide Area Workflow (WAWF). Wide Area Workflow (WAWF) is a secure web-based system for electronic invoicing, receipt and acceptance. The WAWF application enables electronic form submission of invoices, government inspection, and acceptance documents in order to support DoD’s goal of moving to a paperless acquisition process. Authorized DoD users are notified of pending actions by e-mail and are presented with a collection of documents required to process the contracting or financial action. It uses Public Key Infrastructure (PKI) to electronically bind the digital signature to provide non-refutable proof that the user (electronically) signed the document with the contents. Benefits include online access and full spectrum view of document status, minimized re-keying and improving data accuracy, eliminating unmatched disbursements and making all documentation required for payment easily accessible.

The Consortium is required to utilize the Wide Area Workflow system when processing invoices and receiving reports under this Agreement. The Consortium shall (i) ensure an Electronic Business Point of Contact is designated in System for Award Management at http://www.sam.gov and (ii) register to use WAWF–RA 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 Consortium is directed to use the “2-in-1” format when processing invoices. The Consortium should submit a copy of the AO approval of the milestone, as well as a copy of the milestone report, with each invoice.

For the Issue By DoDAAC, enter XXX.

For the Admin DoDAAC, enter XXX.

For the Service Acceptor AO fields, enter the Service Acceptor AO DoDAAC.

Leave the Inspect by DoDAAC, Ship From Code DoDAAC, Service Approver, and LPO DoDAAC fields blank unless otherwise directed by the AO.

The following guidance is provided for invoicing processed under this Agreement through WAWF:

· The AO shall continue to formally inspect and accept the deliverables/milestones. To the maximum extent practicable, the AO shall review the deliverable(s)/milestone report(s) and either: 1) provide a written notice of rejection to the Consortium which includes feedback regarding deficiencies requiring correction, or 2) written notice of acceptance to the USG PM

· Acceptance within the WAWF system shall be performed by the AO upon receipt of a confirmation email, or other form of transmittal, from the AO.

· The Consortium shall send an email notice to the AO and upload the AO approval as an attachment upon submission of an invoice in WAWF (this can be done from within WAWF).

· Payments shall be made by DFAS-(INSERT APPROPRIATE DFAS OFFICE).

· The Consortium agrees, when entering invoices entered in WAWF to utilize the CLINs associated with each milestone as delineated at Attachment 2. The description of the CLIN shall include reference to the associated milestone number along with other necessary descriptive information. The Consortium agrees that the USG may reject invoices not submitted in accordance with this provision.

Note for DFAS: The Agreement shall be entered into the DFAS system by CLIN – Milestone association (MS)/ACRN as delineated at Attachment 3. The Agreement is to be paid out by CLIN (MS)/ACRN. Payments shall be made using the CLIN (MS)/ACRN association as delineated at Attachment 3.

Payee Information: As identified at Central Contractor Registration.

· Cage Code:

· SAM UEI:

· TIN:

USG funds shall be maintained in an interest-bearing account prior to disbursement to Consortium Members. This account shall not be in U. S. Treasury Notes. Any interest earned shall be remitted annually to the USG AO, or designee. Interest payments shall be made payable to the U. S. Treasury. Interest amounts less than $250 per year may be retained by the Consortium for administrative expenses.

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

Payments shall be made in the amounts set forth at the project level, provided the USG AO has verified the accomplishment of the milestone. It is recognized that the quarterly accounting of current expenditures reported in a “Business Status Report” submitted is not necessarily intended or required to match the milestone until submission of the Final Report; however, milestones shall be revised during the course of the program to reflect current and revised projected expenditures.

Financial Records and Reports: The Consortium and Consortium Members shall maintain adequate records to account for all funding under this Agreement and shall maintain adequate records to account for Consortium Member funding provided under this Agreement. Upon completion or termination of this Agreement, whichever occurs earlier, the Consortium Manager shall furnish to the AO a copy of a Final Report. The Consortium’s and Consortium Members’ relevant financial records are subject to examination or audit by the USG for a period not to exceed three (3) years after expiration of the term of this Agreement. The AO or designee shall have direct access to sufficient records and information of the Consortium and Consortium Members, to ensure full accountability for all funding under this Agreement. Such audit, examination, or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party.

Property In the event the USG determines that it is in it's best interest to provide Government-Furnished Property (GFP) (excluding data, information, intellectual property and software) to the Recipient/Awardee for use in performance of this Agreement, the USG shall list the item(s) of property as an attachment to the specific project level award. GFP will be furnished f.o.b. destination, unless otherwise stated.

Changes Bilateral agreements will be used when both parties agree to modify the agreement. The USG may need the right to make a unilateral change to the agreement to perform administrative changes, ensure that critical requirements are met, or there are changes to the availability of USG funding for the project. The awardee may be entitled to an equitable adjustment for any unilateral change that caused an increase or decrease in the cost of, or the time required for, performance.

Awardee Reporting The awardee is responsible for managing and monitoring each prototype project and all participants. Effective performance reporting addresses cost, schedule and technical progress. It compares the work accomplished and actual cost to the work planned and the estimated cost and explains any variances.

Administration The Parties recognize that the CM (Consortium Manager) is to execute this Agreement and administer projects under this Agreement. The CM's CAGE Code, DUNS number and SAM registration will be used for issuance and execution of this Agreement. However, the Agreements Officers will ensure that all terms and conditions of the agreement are being satisfied. If the OTA awardee has failed to comply with any term of the agreement, the Agreements Officer will take timely, appropriate action to remedy the situation.

Agreement Close-Out The contract administration office is responsible for initiating (automated or manual) administrative closeout of the contract after receiving evidence of its physical completion. At the outset of this process, the contract administration office must review the contract funds status and notify the contracting office of any excess funds the contract administration office might deobligate.

Cyber Security Requirements By submission of a RPP, the Offeror represents that it will implement the security requirements specified by NIST Special Publication (SP) 800-171 "Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations" (see<http://dx.doi.org/10.6028/NIST.SP.800-171) that are in effect at the time the solicitation is issued or as authorized by the Agreements Officer (AO).

If the Offeror proposes to vary from any of the security requirements specified by NISTSP 800- 171 that are in effect at the time the solicitation is issued or as authorized by the AO, the Offeror shall submit to the AO, for consideration by the DoD Chief Information Officer (CIO), a written explanation of why a particular security requirement is not applicable; or how an alternative but equally effective, security measure is used to compensate for the inability to satisfy a particular requirement and achieve equivalent protection. An authorized representative of the DoD CIO will adjudicate offeror requests to vary from NIST SP 800- 171 requirements in writing prior to agreement award. Any accepted variance from NIST SP 800-171 shall be incorporated into the resulting award.

The Offeror shall indicate in its proposal whether the use of cloud computing is anticipated at any level under the resultant PA. After the award of a PA, if the Performer proposes to use cloud computing services in the performance of the agreement at any level, the Performer shall obtain approval from the AO prior to utilizing cloud computing services.

Notice of NIST SP 800-171 DoD Assessment Requirements In order to be considered for award, if the Offeror is required to implement NIST SP 800-171, the Offeror shall have a current assessment (i.e., not more than 3 years old unless a lesser time is specified in the solicitation) for each covered awardee information system that is relevant to the offer and agreement. The Basic, Medium, and High NIST SP 800-171 DoD Assessments are described in the NIST SP 800-171 DoD Assessment Methodology located at https://www.acq.osd.mil/dpap/pdi/cyber/strategically_assessing_contractor_implementation_of_NIST_SP_800-171.html Definitions.

Covered awardee information system means an unclassified information…