Draft_FARA_CP_OTAP.docx

Other Transactions Agreement for Prototype Project

BETWEEN

Performer Name Performer Address

CAGE: XXXXX

Fiscal Station Code: XXXXXX

AND

U.S. Army Contracting Command – Redstone Arsenal Fort Eustis, VA 236045577

Future Attack Reconnaissance Aircraft Competitive Prototype Project

Agreement No.: W911W6-19-9-XXXX Agreement Total Government Funds Contribution: $

Authority: 10 U.S.C. § 2371b

This Agreement is entered into between the United States of America, hereinafter called the "Government," represented by the U.S. Army Contracting Command – Redstone Arsenal (ACC-RSA) on behalf of the Aviation Missile Research Development and Engineering Center (AMRDEC), Aviation Development Directorate (ADD) for the Future Vertical Lift Cross-Functional Team (FVL CFT) and Performer Name (XX), and hereinafter also called the "Performer" pursuant to and under U.S. Federal Law.

PERFORMER NAME

FOR THE UNITED STATES OF AMERICA, U.S. Army Contracting Command – Redstone Arsenal

(Signature/Date)

(Signature/Date)

Name Title

Name Agreements Officer

Effective date

TABLE OF CONTENTS

ARTICLES PAGE

ATTACHMENTS

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

Army Aviation must operate in highly contested/complex airspace and degraded environments against peer/near peer adversaries capable of an advanced integrated air defense system. The Army currently lacks the ability to conduct armed reconnaissance, light attack, and security with improved stand-off, and lethal and non-lethal capabilities with a platform-sized to hide in radar clutter and for the urban canyons of mega cities. To close this gap, the Army envisions an optionally manned, next generation rotorcraft with attributes of reduced cognitive workload, increased operational tempo (OPTEMPO) through ultra-reliable designs and extended maintenance free periods, and advanced teaming and autonomous capabilities. Teamed with unmanned systems and various air launched effects, this platform will be the center piece of the Integrated Air Defense System (IADS) breeching team to provide freedom of maneuver in a multi-domain battle. This platform is the “knife fighter” of future Army Aviation capabilities, a small form factor platform with maximized performance. Critical to this envisioned platform is a resilient digital backbone designed to allow rapid capability advancement in subsystems and software and affordable life cycle management. This purpose built aircraft will be fielded at echelons above division but other variants could be fielded across all aviation formations.

B. Scope

1. This Agreement is an “Other Transaction Agreement for Prototype Project” (OTAP) pursuant to 10 U.S.C. § 2371b. The principal purpose of this Agreement is to conduct development of a Future Attack Reconnaissance Aircraft (FARA) Prototype. Attachment 1 is a Statement of Objectives.

2. The Performer shall be responsible for performance of the work set forth in this Agreement at Attachment 1. The Performer shall provide all documentation required by Attachment 2, Report Requirements.

3. The Performer shall be paid a fixed amount for each milestone accomplished in accordance with the Schedule of Milestones and Payments set forth in Attachment 5 and the procedures of Article VI. The Schedule of Payments and Payable Milestones Exit Criteria may be revised or updated in accordance with Article IV.

4. The Performer has agreed to bear $XXXXXXX of the total amount of Phase 1 in accordance with the terms of the Agreement. If selected to participate in Phase 2, the Performer has agreed to bear $XXXXXXX of the total amount of Phase 2 in accordance with the terms of the Agreement. The Government and the Performer estimate that the effort described in the Statement of Objectives, Attachment 1 can be accomplished with the Government and the Performer contributions detailed in Attachment 3 Schedule of Payments and Payable Milestone Exit Criteria.

C. Goals

1. The goal of this Agreement is to develop necessary and sufficient data to transition from a Competitive Prototype (CP) to a subsequent full system integration, qualification and production phase. The data development will occur through the design and build of two CP aircraft that address key attributes and requirements listed in Attachment 1. In addition to data developed for the CP aircraft, there is intent to develop data that will accelerate transition from a stand-alone prototype to a subsequent full system integration, qualification and production program. The Government seeks the following results from this development effort:

· Define, design, build and test prototype aircraft that meet key performance attributes/measures and other performance thresholds.

· Collaboration with the Government on developing cost models, physics-based engineering models and systems engineering models.

· Ground testing, flight envelope expansion and vehicle characterization testing necessary to develop data required to demonstrate the FARA CP capabilities and requirements.

· Data to support airworthiness and acquisition planning (e.g. manufacturing readiness level, supportability, suitability) for a subsequent full system qualification and production phase.

The Government will determine which prototype efforts to pursue and fund. The Government will be solely responsible for evaluating the merits of each proposal to select prototype efforts for funding from among the proposals submitted. Following the selection of the prototype projects and negotiations with each Offeror, the Government will enter into an OTAP with the performers for each proposal selected by the Government through this competitive process. The Agreements Officer (AO) will execute and administer each award and the Government's designated Agreements Officer Representative (AOR) will monitor the technical work performed by the entities whose proposals are selected for funding by the Government.

2. The Government will have continuous involvement with the Performer. The Government will obtain rights to Program results, technical data, and software as well as licenses to any patents resulting from this Program pursuant to Articles X and XIV. The Government and the Performer are bound to each other by a duty of good faith in achieving the Program objectives.

ARTICLE II: GENERAL DEFINITIONS

In this Agreement, the following definitions apply:

Agreement: The body of this Agreement and Attachments 1 – 8, which are expressly incorporated in and made a part of the Agreement.

Agreements Officer: An individual with the authority to enter into, administer, or terminate OTs for prototype projects and make related determinations and findings.

Agreements Officer Representative (AOR): The individual designated by the Government to monitor all technical aspects and assist in administration of the Agreement.

Cash Contribution: One of the two accepted forms of “Cost Share” where a Performer’s financial resources are expended to conduct effort under this Agreement. The cash contribution can be derived from the Performer’s funds, outside sources, non-federal contract or grant revenues, or from profit or fee on a federal procurement contract. The Performer’s own source of funds may include corporate retained earnings, current or prospective Independent Research and Development (IR&D) funds or any other indirect cost pool allocation. New or concurrent IR&D funds can be utilized as a cash contribution provided those funds identified by the Performer are to be spent on the conduct of the Program Statement of Objective. Neither prior IR&D nor fee paid under this Agreement will be considered as part of the Performer’s cash contribution. Cash contributions include funds the Performer will spend for labor (including benefits and direct overhead), materials, new equipment (prorated if appropriate), sub-awardee efforts expended, and restocking the parts and material consumed under this Agreement.

Cost Share: The portion of the Program expenses borne by the Performer either in the form of Cash Contribution or In-Kind Contribution.

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

Developed: 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 Title 35 of the United States Code.

Effective Date: The date when this Agreement is executed by the AO for the Government following execution by the Performer’s Signatory Authority.

Fixed amount OT: An OT under which an awardee agrees to complete a prototype project for an agreed upon total price and where payments are not based on amounts generated from the awardee’s financial or cost records.

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

Government: The United States of America, as represented by the Army Contracting Command – Redstone Arsenal (ACC-RSA).

Government Purpose Rights: The rights to –

1. Use, modify, reproduce, release, perform, display, or disclose Technical Data, Computer Software, or computer software documentation within the Government without restriction, and release or disclose Technical Data, Computer Software, or computer software documentation outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that Technical Data, Computer Software, or computer software documentation for United States Government purposes.

2. Government Purpose Rights set forth in this Agreement will be enacted for a period of 20 years from the delivery of such data to the Government. Upon expiration of the 20 year period, the Government shall have Unlimited Rights, as defined herein, to all such Technical Data, Computer Software and computer software documentation; and

3. “Government purpose” means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations, or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data for commercial purposes or authorize others to do so.

Independent Research and Development (IR&D): The Performer’s cost that consists of research and development falling within the following areas: (1) basic research, (2) applied research, (3) development, or (4) systems and other concept formulation studies. The term does not include the costs of efforts by an instrument funded with Federal appropriations. IR&D efforts shall not include technical efforts expended in developing and preparing technical data specifically to support submitting a bid and proposal for a Project.

In-Kind Contribution: One of the two forms of accepted “Cost Share” where the Performer’s nonfinancial resources expended by the Performer to perform under Prototype Project, such as wear and tear on in-place capital assets like machinery, the prorated value of space used for the execution of a Project, or the reasonable fair market value (appropriately prorated) of equipment, materials, and other property used in the performance of the Project.

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

Key Accountable Positions and People: Those people having authority and responsibility for planning, directing, and controlling the activities of the program or are essential to its execution.

Limited Rights: Rights to use, modify, reproduce, release, perform, display, or disclose technical 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 technical data outside the Government, use the Technical Data for manufacture, or authorize the Technical 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:

1. The reproduction, release, disclosure, or use is necessary for emergency repair and overhaul; or

2. a release or disclosure to:

3. 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 Technical Data; or

4. A foreign government, of technical 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 evaluational or informational purposes

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

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

Made: when used in relation to an invention means the conception or first actual reduction to practice of such invention.

Nontraditional Defense contractor: 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.”

Other Transaction for Prototype Projects: The type of OTA authorized by 10 U.S.C. § 2371b for prototype projects directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the DoD, or to improvement of platforms, systems, components, or materials in use by the armed forces. This type of OTA is treated by DoD as an acquisition instrument, commonly referred to as an "other transaction" for a research prototype project or a Section 2371b "other transaction".

Party: Includes the Government or the Performer, or when used collectively both the Government and the Performer.

Payable Milestone: The completion of a scheduled event as set out in the Agreement. A milestone that has been completed by the Performer will be approved for payment by the AO. This approved payment will represent an agreed upon dollar amount in relation to performance under this Agreement.

Performer: The entity or business unit that is the direct recipient of the OT agreement.

Practical application: In relation to inventions, 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.

Program: Development being conducted by the Performer, as set forth in Article I.

Project Manager: The Government manager for the prototype project.

Property: Any tangible personal property other than property actually consumed during the execution of work under this agreement. For purposes of this Agreement, "property" does not include the deliverable prototype which is the goal of the FARA CP program.

Schedule Milestone: A particular point in time that marks a specific, definable accomplishment, the start and/or finish of an interim event, or a decision concerning a specific course of action.

Significant Contribution: Significant contributions includes, but are not limited to, supplying new key technology or products, accomplishing a significant amount of the effort, or in some other way causing a material reduction in the cost or schedule or increase in the performance. The AO will determine the contribution significance after consultation with the AOR and other Government technical representatives.

Subawardee: Any business unit other than the Performer subordinate to and engaged by a Performer via contract, agreement or any other means, with or without compensation, to perform effort under their OT prototype agreement.

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

Technical Data: 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.

Technology: Discoveries, innovations, 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, and copyrights developed under this Agreement.

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.

ARTICLE III: TERM

A. Term of this Agreement

The Agreement is effective upon the signature date of the AO and the term is anticipated to be 5 years from the date of award. The Agreement term may be extended to transition into a subsequent full system integration, qualification and production phase. During the 5-year term, the government continues as follows:

In Phase 1, the initial set of Performers will be given nine months to develop preliminary designs and provide the Government team with the data and insight required for the Government to down-select to two (or possibly more based on funding available) Performers for Phase 2, after an Initial Design and Risk Review (ID&RR) (see Appendix 2). Assessments will be made using initial design and approach data against the following criteria:

· Application of the evaluation criteria in Section 6 of the FARA CP Program Solicitation W911W6-19-R-0001 to additional information developed during the initial design period.

· Cost and schedule performance to date.

· Updated cost proposal and work plan for Phase 2.

· Degree of demonstrated collaboration and data sharing (with appropriate rights) with the Government.

The Government will make decisions regarding early procurement (prior to ID&RR) of long-lead material/items for the FARA CP. These requests for long-lead items are subject to Government ‘s review, acceptance of costs proposed and decision to fund by assessing cost, schedule and performance risk with each request in terms of:

· Extent to which the request enables them to meet Phase 2 fabrication and test schedule

· Impact on schedule if request is not funded

· Cost of the request

· Technical and schedule performance at the time of the request n Phase 2a, the Performers that are selected in the first down-select will proceed to the detail design, build, and Performer-led test phase that includes all other necessary and supporting tasks. In November 2020 a Final Design & Risk Review (FD&RR) will be executed with each Performer. Upon assessment of technical progress and risk, the Government will make the determination to approve continuation of terminate the effort. Approximately 24 months are allocated for the aircraft build including subsystem testing with an anticipated first flight in November 2022. Prior to initiation of flight test and subsequent to the appropriate level of technical drawings finalized and subsystem testing complete (as proposed by the Offerors), an Initial Preliminary Design Review (IPDR) will be executed (around mid-2022) to provide the Government the required insight, data, and documentation to execute the efforts associated with accelerating planning and approval of a subsequent full system qualification and production phase.

In Phase 2b, the aircraft is provided to the Government for flight testing to evaluate performance and operational-type maneuver characteristics.

In Phase 3, the Government will evaluate if the Performers have successfully completed the competitive prototype project, and may select a Performer for entry into a subsequent full system integration, qualification and production phase. The Government may use competitive prototype data, to include but not limited to, flight performance and IPDR results as part of the selection criteria. If the Government decides to down select to one vendor during Phase 3, the down selection criteria will be established prior to the ID&RR. The selected performer may be authorized to procure multiple sets of long-lead items prior to entering the Phase 4.

If executed, Phase 4 is the formal, system integration and qualification and subsequent production effort. In accordance with 10.U.S.C. 2371b(f), and upon a determination that the one or more of these prototype projects has been successfully completed, Phase 4 may include a design update, integration of mission equipment, additional component/system level qualification testing and the procurement of potentially up to 15 additional prototype aircraft. It is anticipated that the OTAPs established for the FARA CP effort will be used for these subsequent efforts. In addition, one or more of these competitively awarded prototype OTAs may result in the award of a follow-on production contract or transaction without the use of competitive procedures.

At all schedule milestones, as described in the table below, the Government team will review and assess the degree to which each Performer is likely to obtain the FARA CP program desired results. After timely deliberation, the Government will provide instruction to continue as planned, continue with changes, or to discontinue the effort.

Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this Article.

B. Termination Provisions

Subject to a reasonable determination that the program will not produce beneficial results, either Party may terminate this Agreement by written notice to the other Party, provided that such written notice is preceded by consultation between the Parties. In the event of a termination of the Agreement, it is agreed that disposition of Data developed under this Agreement, shall be in accordance with the provisions set forth in Article XIV, Technical Data and Computer Software Rights. The Government and the Performer will negotiate in good faith a reasonable and timely adjustment of all outstanding issues between the Parties as a result of termination. Failure of the Parties to agree to a reasonable adjustment will be resolved pursuant to Article IX, Disputes. The Government has no obligation to pay the Performer beyond the last completed and paid milestone if the Performer decides to terminate.

C. Extending the Term

The Parties may extend, by mutual written agreement, the term of this Agreement if opportunities from the vision statement set forth in Article I reasonably warrant. Any extension shall be formalized through modification of the Agreement by the Government AO and the Performer Administrator.

ARTICLE IV: MANAGEMENT OF THE PROJECT

A. Management and Program Structure

The Performer shall be responsible for the overall technical and program management, technical planning and execution of the Program. The Government AOR, in consultation with the Government PM, shall provide recommendations regarding program execution and technical collaboration as well as review and verify the completion of milestones.

B. Modifications

1. Recommendations for modifications, including justifications to support any changes to the Statement of Work, as described in the Performer’s Program Management Plan will be documented in a letter and submitted by the Performer to the Government AOR/AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the program. The Government is not obligated to pay for additional or revised future milestones until the Schedule of Milestones and Payments (Attachment 5) is formally revised by the Government AO and made part of this Agreement.

2. The Government AOR shall be responsible for the review and verification of any recommendations to modify the SOW, prospective milestones, or other proposed changes to the terms and conditions of this Agreement.

3. For minor or administrative Agreement modifications (e.g. changes in the paying office or appropriation data, changes to Government or the Performer’s personnel identified in the Agreement, etc.) no signature is required by the Performer.

4. The Government AO will be responsible for instituting all modifications to this Agreement.

ARTICLE IV: AGREEMENT ADMINISTRATION

A. Either Party shall immediately, in writing, request prior approval from the other Party when there is reason to believe that within the next 30 calendar days a programmatic, schedule or budgetary revision will be necessary. Such approval by agreement modification shall be obtained for one or more of the following program, schedule or budget related reasons:

1. Any change in the scope as described in Attachment 1, Statement of Objectives (even if there is no associated budget revision requiring prior written approval).

1. Any change in key personnel specified in Attachment 3, Program Management Structure.

1. Any change in the allocation of or the need for additional funding.

1. Unless described in the Performer’s proposal and approved in the award, the sub-award, transfer or contracting out of substantive program performance under an award, with substantive defined as at least $2,000,000. For any sub-award or contracting out of substantive program performance under this Agreement of $2,000,000 or more requiring Government AO approval, the Performer will notify the Government AO in writing reasonably in advance of placing any such sub-award or contracting out with the following information; a description of the substantive work to be funded or procured, identification of the proposed sub-awardee or subcontractor, and the estimated value of the effort. The Performer will provide a courtesy copy of this notice to the Government’s AOR. This Article does not apply to the purchase of supplies, material, equipment or general support services.

B. A party may change its representatives in Attachment 3 by written notification to the other party. Modifications to this Agreement will not be effective until a written modification is signed by the Agreement signatories or their successors; however, administrative modifications may be unilaterally executed by the Government AO.

1. Administrative and technical matters under this Agreement will be referred to the representatives of the parties to include Government AO and Agreement Administrator, Performer Agreement Administrator, Government PM and AOR and Performer PM. The names and contact information for these individuals are provided in Attachment 3, Program Management Structure.

2. Notwithstanding the above designations, the Government may delegate certain responsibilities to the Defense Contract Management Agency (DCMA), including but not limited to: enter DCMA Office and address

a. Performing property administration services (to include Plant Clearance).

b. Reviewing Performer's financial management, property management, and purchasing systems.

c. Determining that Performer has a drug-free workplace program, as required under 32 C.F.R. 26.

d. Executing administrative close-out procedures.

e. Determining that Performer has an established accounting system, which complies with Generally Accepted Accounting Principles (GAAP), and including recommendations of rates for Agreement quick close-out.

f. Effecting necessary actions to establish this Agreement record for cost payment via Wide Area Work Flow (WAWF).

g. Any additional delegations will be coordinated between the Government AO, DCMA representative, and Performer, and set forth in writing.

h. Government Flight Representative

ARTICLE VI: OBLIGATION AND PAYMENT

A. Obligation

1. The Government’s liability to make payments to the Performer is limited to only those funds obligated under the Agreement or by modification to the Agreement. The Government may incrementally fund the agreement upon the availability of funds and at the discretion of the AO. The Government may at any time prior to termination allot additional funds for the performance of milestones in Attachment 5 of this agreement. If modification becomes necessary in the performance of Projects, the AO and the Performer may establish and execute a revised schedule of Payable Milestones, if appropriate.

2. When additional funds are allotted for continued performance of the milestones identified in Attachment 4, the Parties will agree as to the milestones which will be covered by the funds. If, solely by reason of failure of the Government to allot additional funds, by the dates indicated below, in amounts sufficient for timely performance of the milestones identified in Attachment 4, the Performer incurs additional costs or is delayed in the performance of the work under this agreement and if additional funds are allotted, an equitable adjustment will be made in the milestones, in the time of delivery, or both. Failure to agree to any such equitable adjustment hereunder will be a dispute concerning a question of fact within the meaning of Article X entitled “Disputes” of this agreement.

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

4. Accounting and Appropriation Data:

Amount:

CIN:

TOTAL

B. Payments

1. The Parties agree that fixed payments will be made for the completion of payment milestones. These payments reflect value received by the Government toward the accomplishment of the payment milestones of this Agreement.

2. The Performer shall document the accomplishments of each completed milestone by submitting or otherwise providing evidence of payment milestone completion. After written verification of the accomplishment of the milestone by the Government AOR, the Performer will submit their invoice through WAWF.

3. The accepted electronic form for submission of payment requests and receiving reports is WAWF. Payments will be made by the cognizant Defense Finance and Accounting Service office, as indicated below, within 30 calendar days of an accepted invoice in WAWF. WAWF is a secure web-based system for electronic invoicing, receipt and acceptance. The WAWF application enables electronic form submission of invoices, government inspection, and acceptance documents in order to support DoD’s goal of moving to a paperless acquisition process. This application allows DOD vendors to submit and track invoices and receipt/acceptance documents electronically. The Performers shall register to use WAWF at https://wawf.eb.milwithin ten calendar days after award of this Agreement. Training on WAWF is available on-line at http://www.wawftraining.com/. All questions relating to the WAWF payment system setup and vendor training can be directed to the WAWF help desk. The helpdesk is open 24 hours a day 7 days a week and can be reached at 1-866-618-5988.

3. Payments will be made by:

(Customer Service Location) Defense Finance and Accounting Services (DFAS), XXXX Center DFAS-CO/XXXX Entitlement Operations enter address Phone: XXX-XXX-XXXX Payment Office Fiscal Station Code: XXXXXX.

Questions concerning payments should be directed to the DFAS. Please have your Agreement number ready when calling about payments.

3. The following codes and information will be required to ensure successful flow of WAWF documents.

TYPE OF DOCUMENT: 2 in 1

CAGE CODE: XXXXX

ISSUE BY DODAAC: W911W6

ADMIN BY: DCMA: Defense Contract Management Agency (DCMA) Enter DCMA Office and address.

DODAAC: XXXXXX

AGREEMENTS OFFICER: Name: @mail.mil; 757-878-XXXX ADDITIONAL CONTACT: Agreement Administrator, Name: @mail.mil; 757-878-XXXX

· The AOR identified in Attachment 3, Program Management Structure, shall continue to formally inspect and accept or reject the performer’s deliverables/ milestones. The AOR shall review the evidence of milestone completion. Upon AOR recommendation to the PM and AO, the AO will either approve or reject the submission in WAWF.

· The Performer agrees, when entering invoices entered in WAWF to utilize the ACRNs associated with each milestone as delineated at Attachment 5. The description of the ACRN shall include reference to the associated milestone number along with other necessary descriptive information. The Performer agrees that the Government may reject invoices not submitted in accordance with this provision.

Note for DFAS: The Agreement shall be entered into the DFAS system by milestone number as delineated at Attachment 5. The Agreement is to be paid out by milestone number.

C. Limitation of Funds: The parties agree that the performance of this Agreement will not cost either party more than its share of the cost as specified herein. The Government will allot funds incrementally to this Agreement.

The amount presently obligated for payment by the Government and allotted to this Agreement is stated in A.4., of this Article. The Parties contemplate that the Government will allot additional funds incrementally to the Agreement up to the estimated Government cost share at Attachment 4, The Government is not obligated to reimburse Performer for costs incurred in excess of the total amount allotted and obligated by the Government to this Agreement.

If at any time, the estimated total program costs are projected to exceed the total amount of this Agreement, Performer shall notify the Government AO. The Performer agrees to perform, or have performed, work on the Agreement up to the point at which the total amount of costs incurred under the Agreement approximates, but does not exceed the total amount actually allotted by the Government to the Agreement, plus the agreed Performer contribution. The Performer is not obligated to continue performance under this Agreement or otherwise incur costs in excess of the amount then allotted by the Government plus the associated Performer contribution unless, and until the Government notifies the Performer in writing that the amount allotted by the Government has been increased and specifies an increased amount, which shall then constitute the total amount allotted by the Government to this Agreement. The parties understand and agree that all funds once committed to this Agreement regardless of their source or time of obligation are considered to have equally funded efforts performed under this Agreement.

D. Financial Records and Reports: The Performer shall maintain adequate records to account for all funding, both Performer and Government, under this Agreement.

ARTICLE VII: COMPTROLLER GENERAL ACCESS

1. Under the terms of this Agreement, which provide for payments in a total amount in excess of $5,000,000, the Performer shall provide for the Comptroller General, in the discretion of the Comptroller General, access to examine the records of any party to the Agreement or any entity that participates in the performance of the Agreement.

1. The requirement in Section A of this article does not apply to any party to this Agreement or any entity that participates in the performance of the Agreement, or any subordinate element of such party or entity, that in the year prior to the date of the Agreement, has not entered into any other contract, grant, cooperative agreement, or “other transaction” agreement that provides for audit access by a Government entity in the year prior to the date of the Agreement.

1. If the party to the Agreement and/or entity participating in the performance of the Agreement, has only performed under cooperative agreements or transactions that were entered into under 10 U.S.C. §2371 and/or 10 U.S.C. §2371b in the year prior to the date of the Agreement, then the only records the Comptroller General may examine in the exercise of the right referred to in paragraph A above are records of the same type as the records that the Government has had the right to examine under the audit access clauses of the previous agreements or transactions performed within the prior year.

1. The Comptroller General may not examine records under the terms of this Article more than three years after the final payment is made by the United States under the Agreement.

1. Flow down – The terms of this Article, in their entirety, shall flow down to all sub-awards issued under this Agreement, which provide for payments in a total amount in excess of $5,000,000.

ARTICLE VIII: ORDER OF PRECEDENCE

In the event of any inconsistency between the terms of this Agreement, the language set forth in the Attachments, and the Performer’s proposal, the inconsistency shall be resolved by giving precedence in the following order: (1) The Agreement, (2) all Attachments to the Agreement, (3) documents incorporated by reference (See Attachment 1, Statement of Objectives, and (4) Performer’s proposal

ARTICLE IX: DISPUTES

A. General

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

B. Dispute Resolution Procedures

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

2. Whenever disputes, disagreements, or misunderstanding arise, the Parties will attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable, with the goal of settlement within three months of identification of the issue. Every reasonable attempt will be made to resolve all issues at the AO's level. If the parties are unable to resolve the dispute, disagreements or misunderstand, the parties agree to use the Alternate Dispute Resolution (ADR) with the cognizant Chief of Contracting Office at in subparagraphs B.3 and B.4 of this Article. Whenever Performer submits, in writing, a disputed claim or issue to the Government, the Government AO shall consider the claim or disputed issue and, within 60 days of receipt of the claim or issue in dispute, either;

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

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

3. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party (through the Agreement Administrator or Performer Administrator, (as the case may be)) in writing of the relevant facts, identify unresolved issues, and specify the clarification or remedy sought. Within five working days after providing notice to the other Party, the aggrieved Party may, in writing, request a joint decision by the FARA Program Director and Performer’s (to be filled in by Performer).

The other Party will submit a written position on the matter(s) in dispute within 30 calendar days after being notified that a decision has been requested. The FARA Program Director shall conduct a review of the matter(s) in dispute jointly with the aggrieved party, and a joint decision will be rendered in writing within 30 days of receipt of such written positions. Any such decision is final and binding unless a Party, within 30 calendar days, requests further review as provided in this Article.

4. Upon written request to the Directors Board co-chaired by the the FVL Cross Functional Team (CFT) Director and the Performer’s (to filled in by Performer), made within 30 calendar days or upon unavailability of a joint decision under subparagraph B.3 above, the dispute shall be further reviewed. The Directors Board or designees will conduct this review jointly with Performer’s (to be filled in by Performer). Following the review, the Directors Board will resolve the issue(s) and notify the Parties in writing. Such resolution is not subject to further administrative review and, to the extent permitted by law, shall be final and binding. In no event will either Party be entitled to incidental or consequential damages.

5. If either party chooses not to participate in the Dispute Resolution Procedure or does not accept the results of the Dispute Resolution Procedure, either party may pursue any right or remedy provided by law.

ARTICLE X: PATENT RIGHTS

A. Allocation of Principal Rights

1. Unless the Performer shall have notified the Government, in accordance with subparagraph B.2 below, that the Performer does not intend to retain title, the Performer shall retain the entire right, title, and interest throughout the world to each subject invention consistent with the provisions of this Article.

2. With respect to any subject invention in which the Performer retains title, the Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced on behalf of the United States the subject invention throughout the world.

B. Invention Disclosure, Election of Title, and Filing of Patent Application

1. The Performer will disclose each subject invention to the Federal Agency within two months after the inventor discloses it in writing to Performer personnel responsible for patent matters. The disclosure to the agency shall be in the form of a written report and shall identify the Agreement under which the invention was made and the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics of the invention. The disclosure shall also identify any publication, on sale or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after disclosure to the agency, the Performer will promptly notify the agency of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the Performer.

2. If the Performer determines that it does not intend to retain title to any such Invention, the Performer shall notify the Government, in writing, within eight months of disclosure to the Government. However, in any case where publication, sale, or public use has initiated the one-year statutory period wherein valid patent protection can still be obtained in the United States, the period for such notice may be shortened by the Government to a date that is no more than 60 calendar days prior to the end of the statutory period.

3. The Performer shall file its initial patent application on a subject invention to which it elects to retain title within one year after election of title or, if earlier, prior to the end of the statutory period wherein valid patent protection can be obtained in the United States after a publication, or sale, or public use. The Performer may elect to file patent applications in additional countries (including the European Patent Office and the Patent Cooperation Treaty) within either ten months of the corresponding initial patent application or six months from the date permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications, where such filing has been prohibited by a Secrecy Order.

4. The Performer shall notify the Government of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceedings on a patent, in any country, not less than 30 calendar days before the expiration of the response period required by the relevant patent office.

5. Requests for extension of the time for disclosure election, and filing under Article VII, may be granted at the Government’s discretion after considering the circumstances of the Performer and the overall effect of the extension.

6. The Performer shall submit to the Government an annual listings of subject inventions. At the completion of the Agreement, the Performer shall submit a comprehensive listing of all subject inventions identified during the course of the Agreement and the current status of each.

C. Conditions When the Government May Obtain Title

Upon the Government’s written request, the Performer shall convey title to any subject invention to the Government under any of the following conditions:

1. If the Performer fails to disclose or elects not to retain title to the subject invention within the times specified in Paragraph B of this Article;

2. In those countries in which the Performer fails to file patent applications within the times specified in paragraph B of this Article; however, if the Performer has filed a patent application in a country after the times specified in paragraph B of this Article, but prior to its receipt of the written request by the Government, the Performer shall continue to retain title in that country; or

3. In any country in which the Performer decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceedings on, a patent on a subject invention.

D. Minimum Rights to the Performer and Protection of the Performer’s Right to File

1. The Performer shall retain a nonexclusive, royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the Performer fails to disclose the subject invention within the times specified in paragraph B of this Article. The Performer’s license extends to its domestic (including Canada) subsidiaries and affiliates, if any, and includes the right to grant licenses of the same scope to the extent that the Performer was legally obligated to do so at the time the Agreement was awarded. The license is transferable only with the approval of the Government, except when transferred to the successor of that part of the business to which the subject invention pertains. The Government approval for license transfer shall not be unreasonably withheld.

2. The Performer’s domestic license may be revoked or modified by the Government to the extent necessary to achieve expeditious practical application of the Subject Invention pursuant to an application for an exclusive license submitted consistent with appropriate provisions at 37 C.F.R. Part 404.