P07 RPP HQ0034259JDEC Attachment 0 T-Cs.docx

NOTE:

COMPANY to fill in YELLOW highlights.

USG to fill in GREEN highlights prior to soliciting industry [or award].

OTHER TRANSACTION AGREEMENT

between

The United States Government Washington Headquarters Services 4800 Mark Center Drive, Suite 09F09 Alexandria, VA 22350-0002 and

Company Name Street Address City, State, Zip Code Phone: (XXX) XXX-XXXX Unique Entity Identifier: XXXXX Commercial and Government Entity Code: XXXXX

Other Transaction Agreement Number: HQ00342X9XXXX

Effective Date: refer to box 3 on page 1 of this award

This Other Transaction Agreement is entered into between the United States of America, represented by Washington Headquarters Services Acquisition Directorate, hereinafter referred to as the Government, and Company Name, hereinafter referred to as the COMPANY, pursuant to Title 10 of the United States Code, Section 4022 and under the United States Federal law.

TABLE OF CONTENTS

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

Under the authority of 10 United States (U.S.) Code (U.S.C.) Section (§) 4022, this Joint Directed Energy Consortium Other Transaction (OT) Agreement is awarded in support of the Joint Directed Energy Transition Office (JDETO). This award is the result of a competitive process and is in accordance with the procedures of Request for Prototype Proposals (RPP) HQ0034259JDEC. The award is based on the proposal provided by COMPANY, dated TBD.

B. Definitions

1. “Adequate Security” means protective measures that are commensurate with the consequences and probability of loss, misuse, or unauthorized access to, or modification of information.

2. “Agreement” refers to this OT Agreement, HQ00342X9XXXX, authorized under 10 U.S.C. § 4022 between the Government and the COMPANY.

3. “Agreement Officer” (AO) is the Government’s warranted Contracting Officer authorized to sign, enter into, administer, terminate, and make related determinations and findings, to the Agreement, within the extent of the authority delegated to them. The AO is the only individual with the authority to bind the Government.

4. “Agreement Officer’s Representative” (AOR) is the individual designated by the Government on a per project basis to monitor all technical aspects; the AOR shall only assist in agreement administration of the specific project to the extent expressly delegated such administration authority in writing in the Project Agreement by the responsible AO.

5. “Agreement Specialist” (AS) is the Government person designated to assist the AO. The AS is not authorized to bind the Government.

6. “Area of Interest” is the Government’s problem statement or statement of need that forms the basis for the RWP/RPP.

7. “Classified Information” means information (i.e. Top Secret, Secret and Confidential) as defined by Executive Order (EO) 13526, Classified National Security Information, and as codified at 32 Code of Federal Regulation (C.F.R.) § 2001, et. seq.

8. “Commercial Computer Software” means software developed or regularly used for non-governmental purposes which -

a. Has been sold, leased, or licensed to the public;

b. Has been offered for sale, lease, or license to the public;

c. Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Agreement; or

d. Satisfies a criterion expressed in paragraphs a, b, or c of this definition and would require only minor modification to meet the requirements of this Agreement.

9. “Compromise” means disclosure of information to unauthorized persons, or a violation of the security policy of a system, in which unauthorized intentional or unintentional disclosure, modification, destruction, or loss of an object, or the copying of information to unauthorized media may have occurred.

10. “Computer Database” as used in this Agreement, means a collection of data recorded in a form capable of being processed by a computer. The term does not include Computer Software.

11. “Computer Software” as used in this Agreement means Computer Programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated or recompiled. Computer Software does not include Computer Databases or Computer Software Documentation.

12. “Computer Software Documentation” means owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the Computer Software or provide instructions for using the software.

13. “Confidential” means information such as Trade Secrets and commercial or financial information obtained from a Disclosing Party on a privileged or confidential basis. Information and materials of a Disclosing Party which are designated as confidential or as a Trade Secret in writing by such Disclosing Party whether by letter or by use of an appropriate stamp or legend, prior to or at the same time any such information or materials are disclosed by such Disclosing Party to the Receiving Party. It includes any information, and materials considered a Trade Secret by the Disclosing Party on its own behalf or on behalf of a third party (e.g., their subcontractors or suppliers). Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed by a Disclosing Party, or are disclosed in writing without an appropriate letter, stamp, or legend, shall constitute Proprietary Information or a Trade Secret if such Disclosing Party, within 30 days after such disclosure, delivers to the Receiving Party a written document or documents describing the material or information and indicating that it is confidential or a Trade Secret.

14. “Consortium” means [insert Consortium name] Consortium.

15. “Consortium Manager” or [insert COMPANY name] means the COMPANY.

16. “Consortium Member” means any university or other higher education institution that has been invited to be a consortium member and has signed a Consortium Member Agreement.

17. “Consortium Membership Agreement” means the agreement governing the rights and obligations between the COMPANY and its Consortium Member(s).

18. “Contracting Activity” means an element of an agency designated by the agency head and delegated broad authority regarding acquisition functions. It also means elements, or another agency designated by the director of a defense agency which has been delegated contracting authority through its agency charter.

19. “Controlled Technical Information” means Technical Information with military or space application that is subject to controls on the access, use, reproduction, modification, performance, display, release, disclosure, or dissemination. Controlled Technical Information would meet the criteria, if disseminated, for distribution statements B through F using the criteria set forth in Department of Defense (DoD) Instruction 5230.24, Distribution Statements on Technical Documents. The term does not include information that is lawfully publicly available without restrictions.

20. “Controlled Unclassified Information” (CUI) is government created or owned information that requires safeguarding or dissemination controls consistent with applicable laws, regulations, and government wide policies. CUI is not classified information. It is not corporate intellectual property unless created for or included in requirements related to a government contract/agreement.

21. “Covered COMPANY Information System” means an unclassified information system that is owned, or operated by or for, a COMPANY and that processes, stores, or transmits Covered Defense Information.

22. “Covered Defense Information” means unclassified Controlled Technical Information or other information, as described in the CUI Registry at http://www.archives.gov/cui/registry/category-list that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government wide policies, and is—

a. Marked or otherwise identified in the agreement, contract, task order, or delivery order and provided to the COMPANY by or on behalf of DoD in support of the performance of the agreement; or

b. Collected, developed, received, transmitted, used, or stored by or on behalf of the COMPANY in support of the performance of the agreement.

23. “Covered Government Support Contractor” means a contractor (other than a litigation support contractor) under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the contractor

a. Is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort.

24. “Cyber Incident” means actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an Information System and/or the information residing therein.

25. “Data” means recorded information, regardless of form or the Media on which it may be recorded. The term includes Technical Data and Computer Software. The term does not include information incidental to Agreement administration, such as financial, administrative, cost or pricing, or management information.

26. “Developed” means that an item, component, or process exists and is workable. Thus, the item or component must have been constructed or the process practiced. Workability is generally established when the item, component, or process has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended. Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art. To be considered “Developed,” the item, component, or process need not be at the stage where it could be offered for sale or sold on the commercial market, nor must the item, component, or process be actually reduced to practice within the meaning of U.S.C. Title 35—Patents.

27. “Development” means the systematic use of scientific and technical knowledge in the design, development, testing, or evaluation of a potential new technology, product or service (or of an improvement in an existing technology, product or service) to meet specific performance requirements or objectives. It includes the functions of design engineering, prototyping, and engineering testing.

28. “Disclosing Party” means COMPANY, or their subcontractors or suppliers, or the Government who discloses protected information for purposes of this Agreement.

29. “Effective Date” means the date when this Agreement is signed and executed by the AO for the Government.

30. “Foreign Firm or Institution” means a firm or institution organized or existing under the laws of a country other than the U.S., 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.

31. “Forensic Analysis” means the practice of gathering, retaining, and analyzing computer-related data for investigative purposes in a manner that maintains the integrity of the Data.

32. “Form, Fit and Function Data” means Data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, and data identifying source, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements. For Computer Software it means Data identifying source, functional characteristics, and performance requirements, but specifically excludes the source code, algorithms, processes, formulas, and flow charts of the software.

33. “Government” means the U.S. Government.

34. “Government Fiscal Year” (FY) means the period commencing on October 1 and ending September 30 of the following calendar year.

35. “Government Purpose Rights” means the rights to use modify, reproduce, release, perform, display, or disclose Data, within the Government without restriction; and to release or disclose Data outside the Government and authorize persons to whom release, or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for a government purpose. Government Purpose Rights do not include the rights to use, modify, reproduce, release, perform, display, or disclose Data for commercial purposes or authorize others to do so.

36. “Information System” means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.

37. “Invention” means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 U.S.C. 101.

38. “Item” includes components or processes.

39. “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.

40. “Limited Rights” means the right to use, modify, reproduce, release, perform, display, or disclose Data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting Limited Rights, release or disclose the Data outside the Government, use the Data for manufacture, or authorize the Data to be used by another party, except that the Government may reproduce, release, or disclose such Data or authorize the use or reproduction of the data by persons outside the Government if—

a. The reproduction, release, disclosure, or use is—

i. Necessary for emergency repair and overhaul; or

ii. A release or disclosure to—

1. A Covered Government Support Contractor in performance of its covered Government support contract for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive Limited Rights Data; or

2. A foreign government, of Data other than detailed manufacturing or process data, when use of such Data by the foreign government is in the interest of the Government and is required for evaluation or informational purposes.

b. The recipient of the Data is subject to a prohibition on the further reproduction, release, disclosure, or use of the Data; and

c. The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.

41. “Limited Rights Data” means Data, other than Computer Software, developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged, to the extent that such data pertain to items, components, or processes developed at private expense, including minor modifications.

42. “Made” when used in relation to any invention, as defined in 35 U.S.C. § 201, means the conception or first actual reduction to practice of such invention.

43. “Malicious Software” means Computer Software or firmware intended to perform an unauthorized process that will have adverse impact on the confidentiality, integrity, or availability of an Information System. This definition includes a virus, worm, Trojan horse, or other code-based entity that infects a host, as well as spyware and some forms of adware.

44. “Media” means physical devices or writing surfaces including, but is not limited to, magnetic tapes, optical disks, magnetic disks, large-scale integration memory chips, and printouts onto which Covered Defense Information is recorded, stored, or printed within a Covered COMPANY Information System.

45. “Milestone” means a scheduled event signifying the successful completion of a major deliverable or a set of related deliverables as identified in the Milestone Payment Schedule in the Project Execution Plan (PEP).

46. “Nonprofit Research Institution” (NRI) as defined in 40 C.F.R. § 262.200, is an organization that conducts research as its primary function and files as a non-profit organization under the tax code of 26 U.S.C. 501(c)(3). Additionally, it means an organization owned and operated exclusively for scientific or educational purposes, no part of the net earnings of which, inures to the benefit of any private shareholder or individual; and includes federally funded research and development centers, as identified by the National Scientific Foundation.

47. “Nontraditional Defense Contractor” (NDC) as defined in 10 U.S.C. § 3014, is an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by DoD for the procurement or transaction, any contract or subcontract for the DoD 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.

48. “Operations, Maintenance, Installation and Training Data” means data necessary for operation, maintenance, installation, and training purposes (other than detailed manufacturing or process data).

49. “Operationally Critical Support” means supplies or services designated by the Government as critical for airlift, sealift, intermodal transportation services, or logistical support that is essential to the mobilization, deployment, or sustainment of the Armed Forces in a contingency operation.

50. “Parties” means Government and the COMPANY by its authorized agent where collectively identified and “Party” where each entity is individually identified.

51. “Payable Milestone” means that once a milestone has been met (see definition of “milestone”), the COMPANY may submit an invoice within the Procurement Integrated Enterprise Environment (PIEE) Wide Area Workflow (WAWF) module for the AOR’s review, approval and payment and then the COMPANY may approve payment to Project Sub-Agreement Holder at the predetermined dollar amount in relation to performance of a particular project under the Agreement.

52. “Practical Application” means 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 as defined in 35 U.S.C. § 201.

53. “Program” means the overall effort to be funded by the Agreement, which is described in the PEP appended to this Agreement as Attachment 1.

54. “Project Agreement” means a supplementing modification in the form of an order issued against this Agreement, issued by the Government for the execution of a specific prototype proposal.

55. “Project Sub-Agreement” means an Agreement between the COMPANY and the selected Consortium Member for the execution of a prototype project.

56. “Project Sub-Agreement Holder” means the Consortium Member executing a prototype project pursuant to a Project Sub-Agreement.

57. “Property” means any tangible personal property other than property actually consumed during the execution of work under this Agreement.

58. “Prototype Project” means an effort proposed by a Consortium Member and selected by the Government for a Project Sub-Agreement that is directly relevant to enhancing mission effectiveness of military personnel and 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 as defined in 10 U.S.C. § 4022.

59. “Protected Information” means information that is protected from disclosure by law or policy or that is furnished on a privileged basis and marked as such. Protected information includes, but is not limited to, personally identifiable information, Trade Secrets, CUI, and proprietary information.

60. “Rapidly Report” means within 72 hours of discovery of any Cyber Incident.

61. “Receiving Party” means COMPANY, or their subcontractors or suppliers, or the Government who receives protected information disclosed by a Disclosing Party.

62. “Restricted Computer Software” means Computer Software developed at private expense and that is a trade secret, is commercial or financial and confidential or privileged, or is published copyrighted Computer Software, including minor modifications of any such Computer Software.

63. “Request for Prototype Proposal” means the request by the Government to the COMPANY requesting proposal(s) to be prepared for execution of a Project Agreement.

64. “Request for White Paper” means the request by the Government to the COMPANY requesting White Papers to be prepared for execution of a Prototype Project.

65. “Selection Notification” means the Government’s official notification issued to the COMPANY documenting the selection of White Paper(s) for a Prototype Project.

66. “Signatory Authority” refers to the individual that has the authority to legally bind a party to an Agreement.

67. “Small Business Contractor” (SB) or small business concern, as defined in 15 U.S.C. § 632, is an enterprise that is deemed to be one that is independently owned and operated, and is not dominant in its field of operation based on the appropriate standards, utilizing the number of employees, dollar volume of business, net worth, net income, a combination thereof, or other appropriate factors.

68. “Statement of Need” means the Government’s problem statement or AOI. See the definition for AOI above.

69. “Subject Invention” means any invention of the contractor conceived or first actually reduced to practice in the performance of work under this Agreement.

70. “Successfully Completed” means that there has been a written determination by the appropriate approving official that efforts conducted under the Agreement: (1) met the key technical goals of a project; (2) satisfied success metrics incorporated into the Agreement; or (3) accomplished a particularly favorable or unexpected result that justifies the transition to production.

71. “Technical Data” means recorded information, regardless of the form or method of recording, of a scientific or technical nature (including Computer Software Documentation). The term does not include Computer Software or data incidental to contract administration, such as financial and/or management information.

72. “Technical Information” means Technical Data or Computer Software, as those terms are defined in ‘Data.’ Examples of Technical Information include research and engineering data, engineering drawings, and associated lists, specifications, standards, process sheets, manuals, technical reports, technical orders, catalog-item identifications, data sets, studies and analyses and related information, and Computer Software executable code and source code.

73. “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.

74. “Trade Secret” means all forms and types of financial, business, scientific, technical, economic, or engineering or otherwise proprietary information, including, but not limited to, patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if:

a. The owner thereof has taken reasonable measures to keep such information secret; and

b. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public.

75. “Traditional Defense Contractor” as defined in 32 C.F.R. § 3.4, is any business unit that does not meet the definition of an NDC.

76. “Unlimited Rights” means rights to use, modify, reproduce, perform, display, release, or disclose Technical Data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

C. Scope

1. This Agreement is an OT Agreement pursuant to 10 U.S.C. § 4022. The principal purpose of this Agreement is to conduct a prototype project in accordance with the Government’s AOI and the PEP.

2. The COMPANY shall be responsible for performance of the work set forth in the PEP, as agreed upon by the parties. The COMPANY shall provide all documentation required in accordance with the deliverables table set forth in the PEP.

3. The COMPANY shall be paid a fixed amount for each Milestone accomplished in accordance with the PEP Milestone Payment Schedule set forth in this Agreement and the procedures of Article IV: Obligation and Payment.

D. Potential for Follow-On Production

1. 10 U.S.C. § 4022 authorizes the DoD to structure OT Agreements with potential for a sole source follow-on award to the OT Agreement COMPANY. Two criteria must be met to use this authority: 1) competitive procedures were used to select the COMPANY and 2) a successfully completed prototype project has been provided for in the transaction. This award leveraged competitive procedures outlined in accordance with the AOI under the solicitation vehicle represented in 10 U.S.C. § 4022(f)(2)(A). This meets the first criterion needed to use the follow-on authority provided under title 10 U.S.C. § 4022.

2. In accordance with 10 U.S.C. § 4022, the parties will consider this Agreement, or portions thereof successfully completed upon acceptance of specific: Milestones, objectives, outcomes, or accomplishments as outlined in the PEP. In accordance with Office of the Secretary of Defense (OSD) policy, successful completion may occur prior to the completion of the entire prototype project. Additionally, completion can occur prior to the conclusion of a prototype project to allow the Government to transition any aspect of the prototype project determined to provide utility into production while other aspects of the prototype project have yet to be completed.

ARTICLE II: TERM OF AGREEMENT AND TERMINATION

A. Term of this Agreement

The term of this Agreement commences upon the date of Agreement award and continues as defined in the PEP. 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. Consortium Project Agreement

In the event a Project Agreement is executed under this Agreement, it is subject to the terms and conditions of this Agreement.

1. The COMPANY shall use its internally developed project management system, [insert COMPANY management system name], for administration of the Project Agreement. [Insert COMPANY management system name] provides detailed information governing all aspects of a project’s lifecycle- pre-award, contract negotiation, project setup, project administration, and project closeout.

2. The COMPANY administration and financial management of [insert Consortium name] will include (i) establishment of Consortium Member Agreements, (ii) membership oversight, (iii) reconciliation of Project Agreement prepayments by the Government, and (iv) reporting of [insert Consortium name] financial activities to the Government.

C. Consortium Project Sub-Agreements

Upon receipt of a Project Agreement, either executed as a new OT Agreement separate of this Agreement or as a modification to this Agreement, the COMPANY will establish a Project Sub-Agreement with the selected Consortium Member(s) for execution of the Project Agreement. Such Agreements shall incorporate the appropriate flow-down of these terms and conditions and any other terms deemed necessary by the COMPANY to successfully carry out the objectives of the Project Agreement.

D. Extending the Term

The Parties may extend, by mutual written agreement, the term of this Agreement if opportunities within the scope set forth in Article I: Scope of the Agreement, reasonably warrant. Any extension shall be formalized through modification of the Agreement by the AO and the COMPANY in accordance with procedures outlined in Article III, section B, Modifications.

E. Stop-Work Order

1. The AO may, at any time, by written order to the COMPANY, require the COMPANY to stop all, or any part, of the work called for by this Agreement. The order shall be specifically identified as a stop-work order issued under this article. Upon receipt of the order, the COMPANY shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Upon conclusion of the stop-work order, the AO shall either:

a. Cancel the stop-work order; or

b. Terminate the work covered by the order as provided in Article II, section B, Termination Provisions.

2. If a stop-work order issued under this Article is canceled, the COMPANY shall resume work immediately. The AO may make an adjustment to any schedules defined within the Agreement, and the Agreement shall be modified, in writing, accordingly, if-

a. The stop-work order results in an increase in the time required for, or in the COMPANY’s cost associated with the performance of any part of this Agreement; and

b. The COMPANY may assert its right to the adjustment within 30 days after the end of the period of work stoppage; provided, that, if the AO decides the facts justify the action, the AO may receive and act upon the claim submitted at any time before final payment under this Agreement.

3. If a stop-work order is not canceled and the work covered by the order is terminated, the Parties will act in good faith to negotiate a settlement that accounts for work already performed and other appropriate costs and deliverables. Disputes regarding settlement will be resolved in accordance with procedures outlined in Article V: Disputes, of this Agreement.

E. Termination Provisions

1. The Government may terminate this Agreement, in whole or in part, if the AO determines that doing so is in the Government’s best interests. The AO shall affect termination by delivering to the COMPANY a notice of termination specifying the extent of the termination and the effective date. The COMPANY may request termination through written notice, which the Government may grant at its discretion.

2. Should the Agreement be terminated prior to completion of each Milestone and/or contract line item number (CLIN) the Government will receive data rights in the completed or partially completed Milestones consistent with the Deliverables table in the PEP, the Data Assertions, and Article IX: Data Rights. In the event of a termination, the Parties will act in good faith to negotiate a settlement that accounts for work already performed and other appropriate costs and deliverables. Disputes regarding settlement will be resolved under Article V: Disputes, of this Agreement.

F. Consortium Closeout Procedures

Upon transaction of a successfully completed prototype project or termination of the Project Agreement:

1. No later than 90 calendar days after the end date of the Project Agreement's period of performance, the COMPANY shall liquidate all obligations incurred under the Project Agreement by submitting all financial, performance, and other reports, as required by the terms and conditions of the Project Agreement. The Government may approve extensions of a Project Agreement when requested by the JDETO].

2. The COMPANY shall make prompt payments to Project Sub-Agreement Holder for allowable costs under the Project Agreement being closed out.

3. The COMPANY shall promptly refund any balances of unobligated funds the Government paid in advance or paid and were not authorized to be retained by the COMPANY for use in other projects.

G. Additional Third-Party Funding

Any requirements from the Government funded by JDETO exceeding $[insert OT Project or Consortium annual Ceiling] annually for prototype or research project(s) or any requirements funded by third parties such as industry, national laboratories, or other governmental entities will be assessed a X% management fee to fund the added direct support costs associated with the additional funding and associated projects.

ARTICLE III: AGREEMENT ADMINISTRATION

A. Administration

Unless otherwise provided in this Agreement, changes to this Agreement may only be made by the AO. Administrative and contractual matters under this Agreement shall be referred to the representatives identified as follows:

1. Government Points of Contact:

AO:

Name: Erin Eslinger Phone: (571) 236-3357 Email: erin.p.eslinger.civ@mail.mil

AS:

Name: Jennifer Walsh Phone: (703) 627-2348 Email: jennifer.l.walsh28.civ@mail.mil

AOR:

Name: First and Last Phone: (XXX) XXX-XXXX Email: XXXX@XXX.XXX

*Technical Representative:

Name: First and Last Phone: (XXX) XXX-XXXX Email: XXXX@XXX.XXX

*Technical Representative is not an AO nor AOR and has no authority to make changes. The Technical Representative has no authority to make changes, verbally or otherwise, to the existing agreement. Further, no authority has been delegated to this individual by the AO. The COMPANY may use the Technical Representative for technical questions related to the existing agreement.

2. COMPANY's Points of Contact

Program Manager:

Name: First and Last Phone: (XXX) XXX-XXXX Email: XXXX@XXX.XXX

Administrative/Contracting:

Name: First and Last Phone: (XXX)-XXX-XXXX Email: XXXX@XXX.XXX

Signatory Authority:

Name: First and Last Phone: (XXX)-XXX-XXXX Email: XXXX@XXX.XXX

Each Party may change its representatives named above by written notification to the other party. The Government will affect the change following the procedures in Article III, section B, Modifications, of the main text of the Agreement.

B. Modifications

1. Recommendations for a modification to the Agreement, including justifications to support any changes to the PEP and terms of this Agreement, may originate via a written request from either the COMPANY to the AOR and AO or the Government through the AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the program. Unless otherwise noted in this Agreement, a modification will be made by mutual agreement of the Parties. The Government is not obligated to pay for additional or revised future milestones until the PEP is formally revised and made part of this Agreement.

2. The Agreement may contain both Pre-Priced and/or To Be Negotiated Option CLINs. Priced Option CLINs, if exercised, may be executed unilaterally at the negotiated prices as defined in the PEP. CLINs for which the price is To Be Negotiated or listed as Rough Order of Magnitude (ROM), will be negotiated between the Government and the COMPANY, exercised at a mutually agreeable price, and included by bilateral modification to the PEP.

3. The AO will review and verify proposed changes to the Agreement. If additional terms and conditions are required to be included to address work that may be required under this Agreement, they will be included by mutual written modification to this Agreement.

4. Minor or administrative modifications to the Agreement (e.g. changes in the paying office or appropriation data, changes to Government or the COMPANY’s personnel identified in the Agreement, etc.) do not require COMPANY signature. Administrative modifications may be unilaterally executed by the AO.

5. The AO is responsible for executing all modifications to this Agreement.

ARTICLE IV: OBLIGATION AND PAYMENT

A. Obligation

This Agreement is funded in accordance with the amount annotated in sections B and C of this Article. In no case shall the Government's financial obligations exceed the amount obligated on the Agreement or by amendment to this Agreement. The Government is not obligated to reimburse the COMPANY for expenditures in excess of the amount of obligated funds allotted by the Government. If a modification becomes necessary in performance of this Agreement, pursuant to Article III, section B, Modifications, the AO and the COMPANY's Administrator shall execute a revised PEP for the prospective Milestones.

B. Payments

1. The Parties agree that payments will be made in accordance with completion of Milestones identified in the PEP.

2. The COMPANY shall document the accomplishments of each completed Milestone by submitting or otherwise providing the Milestone Report required by the PEP. After verification (written or otherwise) of the accomplishment of the Milestone by the AOR, the COMPANY will submit their invoice through the PIEE WAWF module, as detailed in Article IV, section D, Wide Area Workflow Instructions.

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 (DFAS) office, as indicated in block 12 of this Agreement and Article IV, section D, within 30 calendar days of an accepted invoice in WAWF. Article IV, section D details how to submit and process invoices through WAWF.

5. Payments shall be made in the amounts set forth in the PEP, provided the AOR has verified the completion of the Milestone event.

C. Financial Records and Reports:

1. The COMPANY shall maintain adequate records to account for all federal funds received under this Agreement and shall maintain adequate records to account for all funding provided under this Agreement. The COMPANY’s relevant financial records are subject to examination or audit by or on behalf of the Comptroller General, Contracting Activity, or other Government Official for a period not to exceed three years after expiration of the term of the Agreement. The Comptroller General, AO or designee shall have direct access to sufficient records and information of any party to this Agreement or any entity that participates in the performance of this Agreement 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. Any audit required during the course of the program may be conducted by the Comptroller General or other Government Official using Government auditors or, at the request of COMPANY's external Certified Public Accountant firm at the expense of the COMPANY. This requirement shall not apply with respect to a party or entity, or a subordinate element of a party or entity that has not entered into any other agreement that provides for audit access by a Government entity in the year prior to the date of the Agreement.

2. The COMPANY shall include this Article, suitably modified to identify the Parties, in all subcontracts or lower tier agreements entered into solely in connection with this Agreement.

3. The Agreement is a resource sharing arrangement with the Government paying a fixed contribution amount of $[insert value] for the base year, and if exercised, $[insert value] for the option. The COMPANY contribution is a minimum of $[insert value] for the base year, and if exercised, $[insert value] for the option. The COMPANY’s resource contribution will be labor and applicable indirect burdens, materials, and software. The full resource contribution can be found under Attachment 1 Section 4.4, a summary is provided below. The COMPANY shall include with each Milestone payment deliverable, in a format of its choosing, a full accounting of the COMPANY’s contribution for that Milestone payment deliverable and its total contribution to the prototype project at the time of submitting that Milestone payment deliverable. (NOTE: not applicable unless COMPANY proposes a cost share.) Comment by Eslinger, Erin P CIV WHS AD (USA): Delete section 3 if not cost share

D. Wide Area Workflow Instructions

1. Payments will be made by the WHS Financial Management Directorate, as indicated below, within 30 calendar days of an accepted invoice in WAWF.

2. Unless otherwise stated, the COMPANY is required to utilize the PIEE system when processing invoices and receiving reports under this Agreement. Within PIEE, the WAWF application is a secure web-based application for electronic invoicing, receipt and acceptance. 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-reputable 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 COMPANY shall:

a. Ensure an Electronic Business Point of Contact is designated within the System for Award Management (SAM) at http://www.sam.gov and

b. Register to use the PIEE WAWF module at the https://piee.eb.mil/ site. Systematic procedures to register are available at the WAWF site. The COMPANY is directed to use the “2-N-1” invoice format when processing invoices. For cost-type line items submit a cost voucher (NOTE: not applicable unless COMPANY proposes an expenditure-based Agreement).

c. Document routing. The COMPANY shall use the information in the Routing Data Table below only to fill inapplicable fields in WAWF when creating payment requests and receiving reports in the system.

ROUTING DATA TABLE

NOTE: COMPANY delete row if not an expenditure-based Agreement.

If proposing an expenditure-based Agreement, use: https://www.dcaa.mil/Locator/

3. Payment request and supporting documentation. The COMPANY shall ensure a payment request includes appropriate line item and subline item descriptions of the work performed as detailed in the PEP for specific Milestones.

4. WAWF email notifications. The COMPANY shall enter the AOR’s email address in the "Send Additional Email Notifications" field of WAWF once a document is submitted in the system.

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

a. The AOR shall formally inspect and accept the deliverables and/or Milestones as identified in the PEP. To the maximum extent practicable, the AOR shall review the deliverables, Milestone Reports and either:

i. provide a written notice of rejection to the COMPANY within three days of invoice submission, which includes feedback regarding deficiencies requiring correction or

ii. accept the invoice within three business days of invoice submission.

b. The COMPANY agrees, when entering invoices in WAWF to utilize the CLIN (for example 0001) and accounting classification reference number (ACRN) associated with each Milestone as detailed in section B of this Article. The description of the CLIN shall include reference to the associated Milestone number along with other necessary descriptive information. The COMPANY agrees that the Government may reject invoices not submitted in accordance with this Article.

c. If the AOR requests a draft invoice be submitted prior to final invoice submission in WAWF, the COMPANY shall provide the AOR with a copy of the draft invoice via email, and the AOR will provide approval to officially submit the invoice in WAWF or the needed corrective actions within three business days of receipt of the draft invoice.

6. Note for DFAS: The Agreement shall be entered into the DFAS system by CLIN Milestone association (MS)/ACRN and payments shall be made using the CLIN (MS)/ACRN association as delineated at section B of this Article.

7. Payee Information: As identified in the SAM, i.e., Commercial and Government Entity (CAGE) Code, Unique Entity Identifier (UEI), and Tax Identification Number (TIN). Payments shall be made in the amounts set forth in the Agreement, provided the AOR has verified the completion of the Milestones.

8. The COMPANY may obtain clarification regarding invoicing in WAWF from the following:

a. PIEE Helpdesk at 866-618-5988;

b. AOR, AS, or AO listed in this Agreement;

c. Government E-biz: whs.pentagon.ad.mbx.e-business-help-desk@mail.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 pertaining to this Agreement, with the objective of resolving any misunderstanding, disagreement, claims, or disputes by mutual agreement between the Parties of this agreement.

B. Dispute Resolution Procedures

1. Any disagreement, claim or dispute with the Government by the COMPANY 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. Every reasonable attempt will be made to resolve all issues at the AO's level. Alternative Dispute Resolution (ADR) procedures to include, but not limited to settlement negotiations, mediation and fact-finding, will be used to the maximum extent practicable. Whenever the COMPANY submits in writing a claim or issue to the Government, the AO shall consider the claim or issue and within 30 calendar days of receipt of the claim or issue in dispute, either:

a. Prepare and transmit a written decision to the COMPANY, which shall include the basis for the decision and accordingly document the Agreement file or;

b. Notify the COMPANY of a specific date when the AO will render a decision if more time is needed for response. The notice will inform the COMPANY of the reason for delaying the decision.

3. In the event that a mutually agreeable solution cannot be reached at the AO level, the COMPANY may request a higher-level review in writing from the Government Deputy Director, with notice to the AO. The COMPANY shall provide the relevant facts, identify unresolved issues, specify the clarification or remedy sought, and document the rationale as to why the clarification/remedy is appropriate.

4. The Government Deputy Director will conduct a review of the matter(s) in dispute and render a decision in writing within 30 calendar days after receipt of the COMPANY’s submission. Such a decision will not be subject to further administrative review. Failing agreement through this process, the parties may pursue any rights and remedies afforded to them by law, consistent with the terms of this Agreement.

C. Limitation of Damages

Claims for damages of any nature whatsoever pursued under this Agreement shall be limited to direct damages only up to the aggregate amount of Government funding disbursed as of the time the dispute arises. In no event shall the Government be liable for claims for consequential, punitive, special and incidental damages, claims for lost profits, or other indirect damages.

ARTICLE VI: PROTECTED INFORMATION

A. Exchange of Information

The Government may, from time to time, disclose protected information to the COMPANY and its subcontractor(s) or supplier(s), in connection with a particular project, and the COMPANY and its subcontractor(s) or supplier(s), may, from time to time, disclose protected information to the Government in connection with the Agreement or performance thereunder.

B. Protection and Authorized Disclosure.

The Receiving Party agrees, to the extent permitted by law, that protected information shall remain the…