SpEC Model Agreement.pdf

Other Transaction Agreement between

The United States Of America

SPACE & MISSILE

SYSTEMS CENTER

483 N. AVIATION BLVD.

EL SEGUNDO, CA 90245-2808

and

[Company Name]

[Company Address] [Phone Number]

CAGE:

Concerning

SPACE ENTERPRISE CONSORTIUM (SpEC)

RELOADED

This Agreement is entered into between the United States of America, hereinafter called the Government, represented by the Space and Missile Systems Center Innovation and Prototyping Division (SMC/PKT), and [insert Company Name], hereinafter "Consortium Manager” (CM) pursuant to and under U.S. Federal law.

Agreement No.: FA8814-20-9-0001

Total Amount of the Agreement: $12,000,000,000

Government share: $12,000,000,000

Recipient share: $0.00

Authority: 10 U.S.C. 2358

Effective Date: XX MON 2020

Catalog of Federal Domestic Assistance number: 12.114

Notice:

For For the United States of America

Name: KATHLEEN E. SCHOLEFIELD Title: Agreements Officer

Contents

ARTICLE 1 – OTHER TRANSACTION AGREEMENT AUTHORITY

ARTICLE 2 - DEFINITIONS

ARTICLE 3 – SCOPE AND MANAGEMENT OF THE AGREEMENT

ARTICLE 4 – ADMINISTRATIVE INFORMATION AND ORDER OF PRECEDENCE

ARTICLE 5 – AGREEMENTS OFFICER TECHNICAL REPRESENTATIVE

ARTICLE 6 – GENERAL PROVISIONS

ARTICLE 7 – AGREEMENTS ADMINISTRATIVE OFFICE DUTIES

ARTICLE 8 – TERM OF THE AGREEMENT

ARTICLE 9 – TERMINATION PROVISIONS

ARTICLE 10 - EXTENDING THE TERM

ARTICLE 11 – MODIFICATIONS

ARTICLE 12 - GOVERNMENT PROPERTY

ARTCLE 13 - INSPECTION AND ACCEPTANCE OF PROTOTYPE DEVELOPMENT

ARTICLE 14 - CONSORTIUM ADMINISTRATION

ARTICLE 15 - ASSIGNMENT OF AGENCY

ARTICLE 16 - STANDARDS FOR FINANCIAL MANAGEMENT SYSTEMS - COMMERCIAL

ARTICLE 17 - RETENTION AND ACCESS TO RECORDS

ARTICLE 18 - DISPUTES AND LIABILITY

ARTICLE 19 - REPORTS

ARTICLE 20 - DELIVERABLES

ARTICLE 21 - ADMINISTRATIVE AND MANAGERIAL STANDARDS

ARTICLE 22- OBLIGATION AND PAYMENT

ARTICLE 23 - PARTICIPATION AND COST SHARING

ARTICLE 24 - INCREMENTAL FUNDING

ARTICLE 25 - PAYMENT INSTRUCTIONS

ARTICLE 26 - SYSTEM FOR AWARD MANAGEMENT AND DATA UNIVERSAL NUMBERING

SYSTEM REQUIREMENTS

ARTICLE 27 - PROTOTYPE OBLIGATION AND ACCOUNTING INFORMATION

ARTICLE 28 - COMPTROLLER GENERAL ACCESS TO RECORDS

ARTICLE 29 - DATA RIGHTS

ARTICLE 30 - PROPRIETARY INFORMATION

ARTICLE 31 - INVENTIONS AND PATENTS

ARTICLE 32 - SECURITY REQUIREMENTS

ARTICLE 33 - CYBERSECURITY AND INFORMATION PROTECTION

ARTICLE 34 - EXPORT CONTROL AND FOREIGN ACCESS TO TECHNOLOGY

ARTICLE 35 - DISCLOSURE OF INFORMATION

ARTICLE 36 - CLOSEOUT

ARTICLE 37 - REPRESENTATIONS AND WARRANTIES

ARTICLE 38 - ORGANIZATIONAL CONFLICT OF INTEREST (OCI)

ARTICLE 39 - ENABLING AEROSPACE SUPPORT

ARTICLE 40 - ENABLING SUPPORT CONTRACTORS

ARTICLE 41 – UTILIZATION BY SMC’S GOVERNMENT PARTNERS

ARTICLE 42 - ANTITRUST

ARTICLE 43 - OTHER APPLICABLE LAWS AND REGULATIONS

ARTICLE 44: ENTIRE AGREEMENT

ARTICLE 1 – OTHER TRANSACTION AGREEMENT AUTHORITY

This Agreement is an "Other Transaction" pursuant to 10 U.S.C. § 2371b. This Agreement is not a procurement contract, cooperative agreement or grant agreement for purposes of FAR Subsection 31.205-18 or for any other purpose. The provisions of the Federal Acquisition Regulations (FAR), Department of Defense Federal Acquisition Regulations Supplement (DFARS) and Air Force Federal Acquisition Regulations Supplement (AFFARS) do not apply, unless explicitly included in this agreement.

ARTICLE 2 - DEFINITIONS

"Agreement," “Other Transaction Agreement,” (OTA) and “OT Agreement” refer to this Other Transaction Agreement between the Government and the Consortium Manager (CM) of the Space Enterprise Consortium (SpEC), including the Attachments, which are expressly incorporated in and made a part of the Agreement.

"Agreements Officer” (AO) means the SMC warranted Agreements Officer authorized to sign, modify this Agreement, and execute associated projects under this Agreement on behalf of the Government.

“Administrative Agreements Officer,” (AAO) means the individual from an Administrative Contracting Office, typically the Defense Contracts Management Agency (DCMA), that performs certain administrative responsibilities related to this Agreement, such as Government Property Administration, Wide Area Work Flow approval, and Agreement Closeout, and other specific duties, as delegated by the AO.

"Agreements Officer's Technical Representative” (AOTR) means an individual designated and authorized in writing by the Agreements Officer to perform specific technical or administrative functions on behalf of the Government. At the Government's discretion, multiple AOTRs may be designated in writing at either the Agreement level or on a per-project basis.

"Cash Contribution" means a Prototype Level Performer's (PLP) financial resources expended to perform the requirements of a Prototype Award (PA), for those PLPs where Cost Share is required.

"Consortium" means the "Space Enterprise Consortium" (SpEC), the organization developed and managed by the Consortium Manager, whose member entities compete for Prototype Awards under this OT Agreement.

"Consortium Manager (CM)" means the legal entity selected by the Government to act on behalf of SpEC in order to execute and administer the efforts under this Other Transaction Agreement, which includes the execution of Prototype Awards with SpEC Consortium Members at the direction of the Government.

"Consortium Member" or "Consortium Member Entity" means those traditional and Nontraditional Defense Contractors, including small and large businesses, for profit and not for profit entities, and Academic Research Institutions that are signatories to the SpEC Consortium Membership Agreement, and may be eligible to compete for Prototype Awards under this OT Agreement.

"Consortium Membership Agreement (CMA)" means the agreement between SpEC, represented by the Consortium Manager, and the Consortium Members, which governs the rights and obligations of the Consortium Member Entities. This agreement may be referred to by a different title, such as "Articles of Collaboration."

"Cost Share" means those resources expended by a PLP to perform the requirements of a Prototype Award (PA), for those Prototypes where Cost Share between the Government and PLP is required. There are two kinds of cost share: Cash Contribution and In-Kind Contribution. Cost Share may only be proposed and collected on cost-reimbursement type agreements.

"Data," means recorded information, regardless of form or method of recording, which includes but is not limited to, technical data, computer software, computer software documentation, and mask works. The term does not include financial, administrative, cost, pricing or management information and does not include Subject Inventions.

"Days" means calendar days unless stated otherwise.

"Effective Date" means the date when this OT Agreement is signed and executed by the Agreements Officer for the Government.

"Equitable Adjustment" means relief in terms of cost, schedule or Agreement terms.

"Government" means the United States of America, as represented by an SMC Agreements Officer.

"In Kind Contribution" means the nonfinancial resources expended by the PLP to perform the requirements of a Prototype Award, such as the prorated value of space used, the wear and tear on in-place capital assets like machinery, and the reasonable fair market value (appropriately prorated) of equipment, materials, or other property used in the conduct of performing requirements of a Prototype Award.

"Milestone" means a scheduled, previously negotiated event signifying the completion of a major deliverable or a set of related deliverables, with clearly defined success criteria. A milestone that has been completed will be approved for payment to the Prototype Level Performer through the Consortium Manager. This approved payable milestone will represent a predetermined dollar amount in relation to performance of a particular Prototype Award under this OT Agreement.

"Nontraditional defense contractor" means, per 10 U.S.C. §2302(9), "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 DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. § 1502 and the regulations implementing such section."

“Parties” means the Government and the Consortium Manager, the parties to this Agreement. In the singular, unless specified, “Party” refers to either the Government or the Consortium Manager.

"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 Award (PA)," means the agreement executed between the CM and the Consortium Member Entity, whose proposal is evaluated and competitively selected by the Government for funding, establishing the scope of work, terms and conditions for the SpEC member entity performance and payment under the Government funded prototype modification. Prototype Awards shall comply with all provisions contained within the Base Agreement, and any other supporting documents referenced therein, unless alternate terms are expressly agreed to by the Government. The Prototype Award, also referred to as a “subagreement” or “lower tier agreement” is derivative to this OTA, initiated by the CM upon execution of the Prototype Modification with the Government.

The Prototype Award shall not be executed before the Government executes the Prototype Modification obligating funds.

"Prototype-Level Performer (PLP)" means the Consortium Member Entity issued a Prototype Award by the Consortium Manager, following the Government’s evaluation and selection of that Consortium Member Entity for a particular Prototype Project, and the Government’s execution of the related Prototype Modification under this OT Agreement.

"Prototype Modification" (PM) means the modification to this OTA, executed between the Government and the CM, that will be used to effect the Government’s selection decision by funding the selected Prototype Project, and authorizing 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.

"Prototype Project" means the activity proposed by the PLP in response to the Government’s Request for Prototype Proposal, as negotiated and selected by the Government for a Prototype Modification under this OTA.

"Practical application," as used in this Agreement, means to manufacture, in the case of a composition or product;

to practice, in the case of a process or method; or to operate, in case of a machine or system; and, in each case, under such conditions as to establish that the Invention, software, or related Data is being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public or to the Government on reasonable terms.

"Proposal" means the proposal submitted by a Consortium Member Entity in response to the Government’s Request for Prototype Proposals, as issued by the Consortium Manger, including White Papers, Solutions Papers and Full Proposals.

"Request for Prototype Proposal" means the Government's request for proposals, as issued by the CM to SpEC members, based on requirements determined by the Government. Such request may include requests for White Papers, Solutions Papers, or Full Proposals, and will include the technical, management, and cost factors, as appropriate, that will be used as the Government's basis for award selection.

"System for Award Management" (SAM) means the Federal repository into which an entity must provide information required for the conduct of business as a Consortium. Additional information about registration procedures may be found at the SAM Internet site (currently at <http://www.sam.gov/> ).

“SpEC Technical Agreement Record” (STAR) is a formal bilateral agreement and attachments generated in collaboration with the CM, and executed by the Government and CM, that memorialize the contents included in a Prototype Modification/Prototype Award, or modification as applicable.

"Under this OT Agreement" means within the scope of work to be performed as described in the Statement of Work and Schedule of Milestones and Payments.

ARTICLE 3 – SCOPE AND MANAGEMENT OF THE AGREEMENT

(a) The Government and CM are bound to each other by a duty of good faith and best effort to achieve the objectives of this Agreement. This Agreement is not intended to be, nor shall it be construed as, by implication or otherwise, a partnership, a corporation, or other business organization.

(b) The CM shall accomplish the requirements described in the Statement of Work (SOW) at Attachment 1. This includes the overall management, including programmatic, reporting, financial and administrative matters, of the coordinated prototype program established under this OT Agreement. The CM shall be responsible for the overall day-to-day management of all PA Agreements issued to PLPs under this Agreement. Any changes in the scope or objective, or any need for additional funding, to this Agreement or any PA, must be prior approved by the Agreements Officer, and the Agreement and/or PA must be modified in accordance with Article 11, Modifications, if necessary. The CM and appropriate Government AOTR will work together to resolve any identified requirements for change, as applicable.

(c) The Government will determine which endeavors to pursue and Prototype Projects to fund. At any time throughout the term of this Agreement, the Government may address the needs for the desired objective areas or other related Government needs as they arise. The Government will also allow other organizations and agencies within the U.S. Government to participate in the collaborative activities.

Request for Prototype Proposal (RPP) Process: Once the Government identifies a need under the scope of this Agreement, the Government will submit an RPP to the CM, for issuance to SpEC Members. The RPP will include the associated statement of work as well as evaluation criteria used in the Government’s selection decision. The RPP may request proposals in the form of a Request for White Papers, a Request for Solutions Paper and/or a Request for Full Prototype Proposal Submission. Interested Members will submit proposals to the appropriate CM POC prior to the due date specified in the RPP, and in accordance with RPP instructions. The CM

(d) will review proposal submissions for completeness and format compliance. The CM will in turn prepare and transmit the Members’ proposal submissions to the Government for evaluation, including an indication of which proposal submissions, if any, were determined to be incomplete or improperly formatted. The Government will then evaluate the proposal submissions in accordance with the specified evaluation criteria, and determine which Prototype Project(s) therefrom, if any, will be selected for award, pending negotiations. The Government may request the CM to assist the Government in assessing the reasonableness and completeness of the cost estimates, and provide an advisory assessment to the Government. The Government will be solely responsible for evaluation of proposal submissions and award selection. All prototype agreements will be subject to discussions/negotiations and proposal updates, as appropriate, prior to Prototype Modification execution.

Once negotiations between the Government and the successful Offeror(s) are complete, the Government and the Consortium Manager will execute the Prototype Modification, which will include funding for the awarded Prototype Project(s). Thereafter, the CM will be authorized to enter into a Prototype Award with the SpEC Member(s) whose proposal was selected by the Government. The CM and the Member, thereafter designated a Prototype Level Performer, will execute the Prototype Award. The CM will administer the Prototype Award.

(1) Request for White Papers: If the RPP includes a Request for White Papers, the Government will evaluate the white papers, and may further down select based on those evaluations, inviting specific SpEC Member or Members whose white papers were down selected, to submit a full proposal. Only those Members that submitted white papers will be eligible to submit full proposal submissions.

(2) Statement of Work, Attachment 1 to this Agreement establishes the required meetings and reviews.

The designated AOTR will supervise the technical work performed by the PLP in execution of the Prototype Award. The Government and/or Government AOTR will participate in all PA technical meetings. Other Government personnel, as deemed appropriate by the Government, may also participate in the technical portion of these meetings. In addition, as established in PMs under this Agreement, the Government and or AOTR will fully participate in all program technical meetings of their choosing held by the Consortium.

(e) The Agreements Officer will only select for award and issue Prototype Modifications for those Prototype Projects determined to be within the scope of the Statement of Work, at Attachment 1 to this Agreement.

ARTICLE 4 – ADMINISTRATIVE INFORMATION AND ORDER OF PRECEDENCE

(a) In the event of any conflict or inconsistency between the terms of this Agreement, Prototype Modifications to this Agreement, and the language set forth in any Attachments or supporting documentation, the conflict or inconsistency shall be resolved by giving precedence in the following order:

(1) Prototype Modification;

(2) Attachments to the Prototype Modification;

(3) Supporting documentation to the Prototype Modification, including any SpEC Technical Agreement Record or equivalent documentation;

(4) The Articles in this Agreement;

(5) The attachments to this Agreement.

(b) Each Prototype Modification awarded under this Agreement will include line items and associated Agreement Line Item Numbers (ALINs) establishing funding, for the specific Prototype Project(s) established by the PM. All Prototype Modifications awarded under this Agreement will specify whether the Prototype Project is agreed to on a firm-fixed-price or cost reimbursable basis and will include prototype specific payment terms.

(c) Prior to awarding a PA with a PLP that deviates in any way from the associated PM awarded by the Government for a particular Prototype Project, the CM shall receive express Government concurrence from the Agreements Officer.

ARTICLE 5 – AGREEMENTS OFFICER TECHNICAL REPRESENTATIVE

(a) Performance of the work on PAs is subject to the technical direction of the AOTR designated in the PA.

For the purposes of this clause, technical direction includes the following:

(1) Direction to the PLP, which shifts work emphasis between work areas or tasks, requires pursuit of certain lines of inquiry, fills in details or otherwise serves to accomplish the objectives described in the statement of work;

(2) Guidelines to the PLP that assist in the interpretation of drawings, specifications or technical portions of work description.

(3) Review and, where required by the PA, approval of technical reports, drawings, specifications, or technical information to be delivered by the PLP under the PA.

The AOTR will monitor the PLP's performance with respect to compliance with the technical requirements of the

PA.

(b) Technical direction must be within the general scope of work stated in the Agreement. Technical direction may not be used to

(1) Assign additional work under the PA;

(2) Increase or decrease the estimated PA cost, fee (if any), or the time required for the PA performance;

(3) Change any of the terms, conditions or specifications of the PA; or

(4) Accept non-conforming work.

As such, no verbal or written request, notice, authorization, direction or order received by the PLP shall be binding upon the SpEC, CM or Government, or serve as the basis for a change in the PA cost or any other provision of the PA, unless issued (or confirmed) in writing by the AO.

(c) The PLP shall immediately notify the CM whenever a verbal or written change notification has been received from anyone other than the CM, which would affect any of the terms, conditions, cost, schedules, etc. of the PA, and the PLP is to perform no work or make any changes in response to any such notification or make any claim on the SpEC through its CM or Government, unless the CM directs the PLP, in writing, to implement such change notification.

(d) The Consortium Manager must include this Article, or language substantially similar to this Article in each Prototype Award Agreement.

ARTICLE 6 – GENERAL PROVISIONS

(a) Compensation. It is understood that the CM is responsible for executing and administering awarded Prototype Projects under this Agreement, which have been selected and funded by the Government in Prototype Modifications to this Agreement, and the CM’s administrative and management compensation for such services is addressed in Article 22, Obligation and Payment. Any fee or profit proposed by a PLP will be part of the negotiations and reflected in the Prototype Modification. PLP compensation shall be negotiated on an individual, project-by-project basis and shall be incorporated into each individual PA Award modification.

(b) Waiver. No waiver of any rights shall be effective unless assented to in writing by the other Party. The waiver of any breach or default shall not constitute a waiver of any subsequent breach or default, whether or not related to the original breach or default.

(c) Headings. The headings and subheadings used in this Agreement are intended for convenience or reference only and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement.

(d) Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision, unless applying such remaining portions would frustrate the purpose of this Agreement.

(e) Singular and Plural. Unless clearly appropriate, singular terms refer also to the plural number and vice versa.

(f) Force Majeure. No failure or omission by the Consortium in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement or create any liability if the failure or omission arises from a cause beyond the control of the Parties, including, but not limited to the following: acts of God; acts of the Government in either its sovereign or contractual capacity; changes to any rules, regulations or orders issued by any Governmental authority or by any officer, department, and agency or instrumentality thereof, unless affected by modification to the Agreement; fire; storm; flood; earthquake; accident; war; rebellion; insurrection;

riot; and invasion, provided that such failure or omission resulting from one of the above causes is cured as soon as is practicable.

(g) Right to Develop Independently. The CM shall include nothing in its Agreement with the PLP that will impair the PLP’s right to independently acquire, license, develop or have developed, utilize or otherwise exploit information and technology with the same or similar uses or functions as the information or technology that is the subject to any PA issued pursuant to this OT Agreement, except as otherwise established in this Agreement, and subject to the confidentiality obligations and intellectual property rights between the Government, CM and PLP.

ARTICLE 7 – AGREEMENTS ADMINISTRATIVE OFFICE DUTIES

The Agreements Administrative Office (AAO) is hereby delegated the responsibilities to represent the Government as Agreement Administrator in the following areas:

(a) Review and approve/disapprove Consortium Managers' requests for monthly advance milestone payments.

(b) Monitor payments.

(c) Track total expenditures under this agreement.

(d) Assign and perform supporting Agreement administration.

(e) Monitoring cost share.

(f) Monitor the Consortium's financial condition and advise the Agreements Officer when it jeopardizes Agreement performance.

(g) Process and execute novation and change of name agreements.

(h) Perform pre-award surveys upon request.

(i) Ensure Consortium's compliance with Agreement safety requirements.

(j) Duty-free entry assistance.

(k) Facilitate Terminations.

(l) Agreement administrative closeout.

(m) Request and monitor incurred cost/billing rate audits.

ARTICLE 8 – TERM OF THE AGREEMENT

The term of this Agreement is one hundred twenty (120) months from the effective date reflected on the award/cover page, plus the period of performance of all Prototype Awards executed hereunder. Prototype modifications (PMs) may be awarded at any time prior to the end of this 120 months. CM shall continue performance under this Agreement past the 120 months, through the Period of Performance of all Prototype Projects awarded under this Agreement as specified in the applicable Prototype Modifications. For prototypes that are incrementally funded in accordance with Article 24, Incremental Funding, if all funds are expended prior to the end of the term (including PLP contributions, both cash and in-kind), the Parties have no obligation to continue and may elect to cease performance at that point on that Prototype Project.

Articles in this Agreement (e.g., Article 17, Retention and Access to Records) which, by their express terms, apply for periods of time other than as specified in this Article shall be given effect, notwithstanding this article. Any PM issued during the term of this OT Agreement and not completed within such term shall be completed within the timeframe specified in the PM and the terms of this Agreement and other applicable terms shall continue to apply with regard to performance of that specific PM.

ARTICLE 9 – TERMINATION PROVISIONS

(a) The Government may for any reason terminate this OT Agreement, and/or any particular Prototype Project through termination of the associated Prototype Modification, by providing written notice to the CM. The CM may request the termination of this OT Agreement, and/or any particular Prototype Project, through termination of the associated Prototype Modification, by giving the Government thirty (30) days written notification of its intent to do so. If the Consortium requests termination of this Agreement, or a Prototype Project under a Modification to this Agreement, the Government may, at its discretion, agree to terminate. The CM shall include language in its Prototype Award instructing the PLP to provide the CM and Government a termination settlement proposal within thirty (30) days of receiving notice of termination. The Government and CM should negotiate in good faith a reasonable and timely adjustment of all outstanding issues between the parties as a result of termination, which may include non-cancelable commitments made prior to the request, outstanding invoices, work performed prior to the termination including fee, etc. If a PLP is being terminated, the CM shall facilitate interaction between the Government, CM and PLP throughout negotiations and termination process. The total amount of the termination settlement plus the amounts previously paid if any, shall not exceed the total amount obligated to the particular Prototype Project subject to termination. Failure of the parties to agree to termination costs and an equitable adjustment shall be resolved pursuant to Article 18, Disputes and Liability.

(b) Data Rights in the event of termination: In the event of a termination of the Agreement, the Government shall have Rights in Data as described in the PM for the particular Prototype Project being terminated.

(c) The Agreements Officer may issue a Stop Work Order at any time to the CM for this OT Agreement, or a particular Prototype Project under the associated Prototype Modification, either with or without a termination notice. Stop Work Orders will be issued in writing by the Agreements Officer. If the Agreements Officer issues a Stop Work Order for a particular Prototype Project, the PLP will not be required to stop work that is not funded by Prototype Modification; however the Government shall not be obligated to pay the Consortium or PLP for any work performed, any materials purchased, or any obligations incurred after the issuance of the Stop Work Order.

The Agreements Officer has ninety (90) days from the issuance of the Stop Work Order, or for any further period to which the Parties may agree, to cancel the Stop Work order or terminate the Agreement or PM. If the Agreements Officer does not cancel or extend the Stop Work order or terminate the Agreement within 90-days, the PM is automatically terminated and the Parties shall negotiate a termination settlement as noted above. If the Stop Work Order is canceled or the period of the order or any extension thereof expires, the Consortium and its PLPs shall resume work. Any adjustments resulting from the issuance of a Stop Work Order shall entitle the PLP to an equitable adjustment to be negotiated.

(d) Material Breach by a Consortium Member. I f t h e C M i n f o r m s t h e G o v e r n m e n t t h a t a PLP has materially failed to comply with the provisions of a Prototype Award, the AO, after reviewing the facts of the breach, may issue a cure notice for the CM to transmit to the PLP. Following the issuance of a cure notice, the AO may take one or more of the following actions as appropriate:

(1) Temporarily withhold payments pending correction of the deficiency by the PLP,

(2) Disallow all or part of the cost of the activity or action not in compliance,

(3) Wholly or partly terminate the Prototype Modification if not corrected ten (10) days after issuance of a cure notice,

(4) Withhold further funding for the associated Prototype Project,

(5) Take any other legally available remedies if not corrected ten (10) days after issuance of a cure notice.

(e) Termination Costs. The Government and Consortium Members, through its Consortium Manager, will negotiate in good faith an equitable reimbursement for work performed toward accomplishment of the task or tasks of individual Prototype Awards. The Government will allow full credit for the Government share of the obligations properly incurred by a PLP or the Consortium Manager prior to termination. The termination proposal preparation costs incurred by a PLP are allowable for termination made by subparagraph (a) to this Article. Costs incurred by an PLP or the Consortium Manager during a Stop Work or after termination of an Prototype Award are generally not allowable unless the Agreements Officer otherwise expressly authorizes them.

Other PLP costs incurred during a Stop Work or after termination which are necessary and not reasonably avoidable are allowable if:

(1) The costs result from obligations which were properly incurred by the PLP or the Consortium Manager before the effective date of the suspension or termination, are not in anticipation of it, and in the case of a termination, are non-cancellable; and

(2) The costs would be allowable if the Prototype Award was not suspended or the award expired normally at the end of the funding period in which the termination takes effect.

(f) The Consortium Manager must include this Article, or language substantially similar to this Article in each Prototype Award Agreement.

ARTICLE 10 - EXTENDING THE TERM

The term of this OT Agreement may be extended by written mutual agreement of the Government and CM. The period of performance for Prototype Projects issued under this Agreement may be extended, if funds are available, and the Government, CM and PLP mutually agree. Any extension shall be formalized through issuance of a modification to this OT Agreement, signed by the Agreements Officer.

ARTICLE 11 – MODIFICATIONS

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

(b) Modifications to the Terms and Conditions of this OTA: The Government will be responsible for effecting all modifications to this Agreement. There is no modification unless there is a formal written modification to this Agreement, executed by the Agreements Officer.

(c) Modifications to Prototype Projects: The CM shall notify the Government in writing of any recommendation for modification to a particular Prototype Award, specifically to support any changes to the associated SOW and payment schedule, by letter submitted to the AO. This letter will detail the technical, schedule, and financial impact of the proposed modification. The Government will review any requested changes and will either approve the changes in whole or in part pending updated Prototype Modification, deny the changes, or request further information/discussions. If the AO approves, the Government will issue an updated PM reflecting those approved changes, to include applicable funding and schedule adjustments, if any. The Government is not obligated to pay for additional or revised efforts, and the CM and PLP are neither authorized nor obligated to perform such additional or revised efforts, until the PM is executed by the AO and funding is provided, as applicable. Following the AO’s execution of the PM, the CM will be authorized to modify Prototype Award accordingly.

ARTICLE 12 - GOVERNMENT PROPERTY

(a) The CM shall incorporate either FAR 52.245-1 or paragraph (b) below, but not both, into the Consortium Member’s Prototype Award Agreement. The CM will allow those Consortium Members who have implemented government property procedures that have been reviewed and accepted by a federal contract administration office official, to choose the terms of FAR 52.245-1 in affect at time of Prototype Award rather than the Government Property terms in paragraph (b) below. Liability related to Government property furnished or acquired under this agreement shall be governed by this Article, notwithstanding the liability provisions covered in Article 18, Disputes and Liability.

(b) Alternate Government Property Procedures

(1) Definitions: In this article, "property" means any tangible personal property other than property actually consumed during the execution of work under this Agreement.

(2) In the event that GFP is determined to be in the best interest of the Government, it may be utilized for PMs and subsequent PAs. Each proposed Prototype white paper and/or Proposal shall clearly identify any and all GFP proposed and/or required and shall provide documentation that the proposed Government property usage has been approved by the cognizant Administrative Contracting Officer.

(3) The party in possession of GFP shall assume the risk of and be responsible for any loss or destruction of, or damage to, any Government Furnished Property while in its possession or control, with the exception of reasonable wear and tear or reasonable and proper consumption.

Unless as otherwise specified in the Prototype Award, all property shall be returned at the end of the Prototype Project in as good as condition as when received, with the exception of reasonable wear and tear. The Consortium Manager or the PLP, as appropriate, shall obtain explicit written authorization from the Government for any transfer or disposition of Government Furnished Property.

(4) Any Prototype Award negotiated on a cost basis will include specific terms regarding title to any/all property acquired by the Consortium or the PLP. Unless waived or tailored in writing by the Agreements Officer, title to any item of property valued $10,000 or less that is acquired by the PLP under a Project Award in performance of work under this OT Agreement shall vest in the PLP upon acquisition with no further obligation of the Parties unless otherwise determined by the AO.

For the acquisition of any item of property with a value greater than $10,000 that was not included in the original proposal, prior written approval by the AO shall be required. The PLP shall prompt the CM initiate the request for prior written approval from the Government. Title to this property shall also vest in the PLP upon acquisition. The PLP shall be responsible for the maintenance, repair, protection, and preservation of all such property at its own expense. Property acquired pursuant to this clause shall not be considered as in exchange for services in performance of the Prototype, but shall be considered a Government contribution to a Prototype.

ARTCLE 13 - INSPECTION AND ACCEPTANCE OF PROTOTYPE DEVELOPMENT

(a) The Government has the right to inspect and evaluate the work performed or being performed under this Agreement, and the premises where the work is being performed, at all reasonable times and in a manner that will not unduly delay the work. If the Government performs inspection or evaluation on the premises of the Consortium or a PLP, the Consortium Manager shall furnish and shall require the PLPs to furnish all reasonable facilities and assistance for the safe and convenient performance of these duties.

(b) Inspection and acceptance criteria specific to Prototype Projects will be specified in PMs. The Government will provide inspection and acceptance of deliverable items under this Agreement at destination, unless otherwise specified in the PM.

(c) The Consortium Manager must include this Article, or language substantially similar to this Article in each Prototype Award Agreement.

ARTICLE 14 - CONSORTIUM ADMINISTRATION

(a) In accordance with the Consortium Membership Agreement (CMA) and/or Articles of Collaboration, or any other administration agreement between the Consortium, its members, and its Consortium Manager of record, the Consortium Manager will act on behalf of the Consortium in executing this Agreement, including any future modifications to it. All financial transactions between the Government and PLPs will be made via the Consortium Manager.

(b) The Consortium shall operate according to the terms and conditions of its Consortium Membership Agreement (CMA). The CM will notify the Government in writing of its intent to modify the CMA, to include a red-line copy of the proposed changes and CM’s reasoning for changing the CMA, ten (10) days prior to executing the changes.

ARTICLE 15 - ASSIGNMENT OF AGENCY

(a) Assignment. This Agreement shall not be assigned or transferred by the CM without the prior written consent of the Government;

(b) Government and CM recognize that [insert Company Name] has been delegated authority as the SpEC Consortium Manager to execute and administer the efforts under the Agreement including the authority to execute and administer projects and Project Award under this Agreement. Any change in Consortium Manager must be approved by the Government.

(c) The Government and CM recognize that each PLP has been evaluated and selected by the Government based upon its unique ability to perform the work required by the individual prototype project, and therefore any change to a PLP must be approved by the Government.

(d) Notwithstanding the above, the CM or PLP may assign its rights and delegate its obligations to a purchaser of all or substantially all of its business to which this Agreement relates by merger, sale of assets, or otherwise. That said, if the sale of company involve potential foreign ownership, control or influence (FOCI), the CM or PLP must send notice of the potential FOCI directly to AO, in addition to any other notifications already required by law.

ARTICLE 16 - STANDARDS FOR FINANCIAL MANAGEMENT SYSTEMS -

COMMERCIAL

(a) The Consortium Manager shall maintain adequate records to account for the control and expenditure of Government funds received under this Agreement, to include a separate accounting for funds expended on each Prototype Project, and a tracking of Government and PLP cost-share contributions for those Prototype Projects that require cost-sharing.

(b) The Consortium Manager shall establish and maintain accounting systems that:

(1) Comply with Generally Accepted Accounting Principles

(2) Control and properly document all cash receipts and disbursements.

(c) The Consortium Manager shall ensure that each Consortium Member Entity and PLP agree to maintain adequate records to account for the control and expenditure of Government funds received under this Agreement, to include a separate accounting for funds expended on each Prototype Project.

(d) The Consortium Manager shall ensure that each PLP establishes and maintain accounting systems that:

(1) Comply with Generally Accepted Accounting Principles

(2) Control and properly document all cash receipts and disbursements.

(3) Track cost-share contributions of the Government and PLP, for those Prototype Projects that require cost-sharing.

ARTICLE 17 - RETENTION AND ACCESS TO RECORDS

(a) The CM’s, Consortium's and PLP(s)' financial records, supporting documents, statistical records, and all other records pertinent to this Agreement shall be retained and access to them permitted for a period not to exceed three (3) years after expiration of the term of this Agreement or final acceptance of the last prototype award, whichever occurs later, unless one of the following applies:

(1) If any litigation, claim, or audit is started before the expiration of the three (3) year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken.

(2) Records for real property and equipment acquired with Federal funds, and into which title will vest with the Government in accordance with Article 12, Government Property, shall be retained for three (3) years after final disposition.

(3) When records are transferred to or maintained by the DoD Component (the SMC program office executing the modification) that made the award, the three (3) year retention requirement is not applicable to the Consortium or PLP(s).

(b) If the Information described is maintained on a computer, the Consortium or PLP(s) shall retain the computer data on a reliable medium for the time period prescribed. The Consortium or PLP(s) may transfer computer data in machine readable form from one reliable computer medium to another. The Consortium's or PLP(s)' computer data retention and transfer procedures shall maintain the integrity, reliability, and security of the original computer data. The Consortium and PLP(s) shall also maintain an audit trail describing the data transfer.

(c) The Agreements Officer shall request that the Consortium and/or PLP(s) transfer certain record to DoD component custody when he or she determines that the records possess long term retention value. The

Consortium shall comply with the request unless it can state why such records should not be transferred.

Disputes shall be handled in accordance with Article 18, Disputes and Liabilities. In the even the AO requests the PLP transfer records to DoD custody, the CM shall facilitate the transfer.

(d) The Consortium Manager shall maintain records of the activities performed by each PLP in performance of Prototype Awards, including funding received by the Government and paid to the PLP under the associated PMs, and the results of any analyses, tests and other investigations conducted by the PLP during the performance of these Prototype Projects for the period specified in this section, unless an exception applies.

(e) The Consortium Manager must include this Article, or language substantially similar to this Article in each Prototype Award Agreement to ensure PLP compliance with Article 17 – Retention and Access to Records.

ARTICLE 18 - DISPUTES AND LIABILITY

(a) The Government and Consortium Manager shall communicate with one another in good faith and in a timely and cooperative manner when resolving issues under this Article.

(1) Dispute Resolution Procedures

(i) Any dispute between the Government and Consortium Manager 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 only be raised under this Article.

(ii) Whenever disputes arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. The Parties agree that the notification under subparagraph (iii) of this Article shall not be made earlier than thirty (30) days from when the known dispute arose. In no event shall a dispute that arose more than one hundred and eighty

(180) calendar days prior to the notification made under subparagraph (iii) of this Article constitute the basis for relief under this article unless the Agreements Officer waives this requirement in writing.

(iii) Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party (through the Agreements Officer) in writing of the relevant facts, identifying unresolved issues, specifying the clarification or remedy sought, and documenting the rationale as to why the clarification/remedy is appropriate.

Within ten (10) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by the Director of the Development Corps and an executive of the PLP who has settlement authority. The other Party shall submit a written position on the matter(s) in dispute within thirty (30) calendar days after being notified that a decision has been requested.

The dispute will then be referred to the Director of the Development Corps and PLP executive who is not an employee of the CM and does not have a real or perceived Organizational Conflict of Interest in the dispute, who shall meet to review the matter(s) in dispute and, with consultation from the appropriate requirement holder, render a decision in writing within thirty (30) calendar days of receipt of such a position. Any such decision is final and binding, unless a Party shall, within thirty (30) calendar days request further review as provided by this Article.

(2) If the Director of the Development Corps and an executive of Consortium are not able to resolve the dispute within thirty (30) calendar days of the date the position under subparagraph (iii) is received, the dispute will be referred to the Air Force Program Executive Officer for Space (AFPEO/SP) or (SMC/CA) and an executive of the PLP, who shall meet in good faith to resolve the dispute.

(3) If the AFPEO/SP (or SMC/CA) and an executive of the PLP are not able to resolve the dispute within sixty (60) calendar days of the date of referral of the dispute under subparagraph (iii) is received, then either Party may pursue any remedy under the law against any of the Parties, and this Disputes and Liability clause shall in no matter extinguish or waive any statute of limitations and/or ability of a party to pursue any remedy under the law, except that any remedy shall be subject to the provisions of (b) Limitations of Damages

(4) Pending resolution of any such dispute by settlement or by final judgment, the Parties shall each proceed diligently with performance, unless otherwise mutually agreed, or the Agreements Officer issues a Stop Work Order, pursuant to Article 9, Termination Provisions.

(b) Limitations of Damages

(1) Claims by either Party for damages of any nature whatsoever against the other Party pursued under this

OT Agreement shall be limited to direct damages only up to the unpaid balance of the aggregate amount of Government funding for the specific Prototype Project to which the dispute arises, unless such dispute resulted from a negotiated settlement of a request for equitable adjustment relating to a change in the performance or scope of the Agreement, or for termination settlement expenses.

(2) In no event shall either Party be liable to any other Party for consequential, punitive, special and incidental damages or other indirect damages, whether arising in contract (including warranty), tort (whether or not arising from the negligence of a Party) or otherwise, except to the extent such damages are caused by a Party's material breach, willful misconduct, or gross negligence.

(3) With regard to the activities undertaken pursuant to this OT Agreement, no Party shall make any claim against the others, employees of the others, the others' related entities (e.g., contractors, subcontractors, etc.), or employees of the others' related entities for any injury to or death of its own employees or employees of its related entities, or for damage to or loss of its own property or that of its related entities, whether such injury, death, damage or loss arises through negligence or otherwise, except in the case of willful misconduct or gross negligence.

(4) Under no circumstances will the above enumerated exceptions to the Limitations of Damages be interpreted to apply the Contract Disputes Act to this OT Agreement or in any way cause the this OT Agreement to be subject to any terms of or regulations related to the Contract Disputes Act.

(5) Extension of Limitations of Damages. The Consortium Manager must include this Article, or language substantially similar to this Article in each Prototype Award Agreement. In order to receive a Prototype Modification under this Agreement, the PLP must agree to limit damages, as set forth above, in its agreement with the Consortium Manager, and all lower-tier subcontracts and/or subagreements.

ARTICLE 19 - REPORTS

(a) CM Reports: The CM will deliver all reports listed in Attachment 1, Statement of Work, Section 3 Reporting, including associated documentation and deliverables, if any, as specified in the…