Draft_ERDC_OTA_Agreement_Articles_v7_-_Final_Draft.docx

AGREEMENT BETWEEN

ERDC CONTRACTING OFFICE (ECO)

AND

CONSORTIUM

Agreement No.: _____________________

Agreement Term: The term of this Agreement is five (5) years from the date of award. The maximum value of the Projects to be awarded under the terms and conditions of this Agreement is $50 million.

Authority: 10 U.S.C. § 2371b(a), Section 815, Amendments to Other Transaction for Prototype Agreement, of the National Defense Authorization Act (NDAA) for Fiscal Year 2018 which inserted Section 2371b, Authority of the Department of Defense to carry out Prototype Projects and as further amended up to the date of execution of this agreement.

TABLE OF CONTENTS

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

BACKGROUND OF CONSORTIUM

B. General Objectives of the OTPA

1) Leverage insights obtained via collaborative planning between the Government and CONSORTIUM members so that the Government is better informed on emerging technologies from the private sector and industry achieves a greater understanding of emerging operational needs that can be addressed with related technology solutions.

2) Purposefully and rapidly mature specified emerging technologies to the point of demonstrating the technology within operational evaluations.

3) Improve/advance/demonstrate of specified and related technologies to achieve advancements in attributes such as reliability, service life, sustainment, and affordability.

4) Ensure the nature of the Agreement facilitates and eases the entry of small businesses and Non-traditional Defense Contractors, academia, etc. into this sector of the Government market.

5) Conduct technology development and maturation in a manner that enables effective transition of the technology to programs of record or supporting programs of record via early consideration of life cycle support aspects such as reliability, affordability, manufacturability, sustainment, training and service life.

C. Definitions

"Academic Research Institution" means accredited institutions (colleges, universities or other educational institutions) of higher learning in the U.S.

“Administration Office” means the Government office responsible for any administration of this Agreement.

“Agreement” or "OTPA" refers to the Section 815, and/or as amended by future NDAAs, Other Transaction Agreement between the Government and CONSORTIUM, Agreement No._____________________.

“Agreements Officer (AO)” is the ECO warranted Agreements Officer authorized to sign and modify this Agreement, as well as, execute bilateral modifications authorizing Projects on behalf of the Government.

“Agreements Officer Representative (AOR)” is the individual designated by the Government on a per-Project basis to manage all technical aspects and assist in administration of the specific Project.

“Cash Contribution” means one of the two (2) accepted forms of “Cost Share” where a CONSORTIUM Member Entity’s financial resources are expended to conduct Projects awarded under this Agreement. The cash contribution can be derived from the CONSORTIUM Member Entity’s funds, outside sources, non-Federal contract or grant revenues, or from profit or fee on a Federal procurement contract. A CONSORTIUM Member Entity’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 CONSORTIUM Member Entity are to be spent on the conduct of a Project Statement of Work. Neither prior IR&D nor fee paid on Projects under this Agreement will be considered as part of the CONSORTIUM Member Entity’s cash contribution. Cash contributions include funds the CONSORTIUM Member Entity will spend for labor (including benefits and direct overhead), materials, new equipment (prorated if appropriate), subcontractor efforts expended on a Project, and restocking the parts and material consumed under a Project.

“Closeout” – the process by which the Government determines that all applicable administrative actions and all required work have been completed by the PAH(s) and the Government.

“CONSORTIUM Member Entity” means the Non-traditional and Traditional Defense Contractors, including small and large businesses, for-profit and nonprofit entities, and academic research institutions that are or become signatories to the Consortium Membership Agreements and maintain their membership in good standing in those consortia.

“(CONSORTIUM)” is the nonprofit, tax-exempt Consortium Management organization

“CONSORTIUM Proposal” means the proposal from CONSORTIUM in response to a Request for Project Proposal (RPP) issued by the Government for Government-selected Prototype Projects to be performed by the CONSORTIUM Member Entity(ies).

“Cost Share” means resources expended by the Project Agreement Holder (PAH(s)) on the proposed project SOW and subject to the direction of the AOR. There are two kinds of cost share: cash contribution and in-kind contribution.

“Consortium Membership Agreement (CMA)” means the agreement governing the rights and obligations between CONSORTIUM and its consortia Member Entities.

“Date of Completion” is the date on which all work is completed or the date on which the period of performance ends for each specific Project.

“Development” means the systematic use, under whatever name, of scientific and technical knowledge in the design, development, test, or evaluation of an existing or potential new technology, product or service (or of an improvement in an existing technology, product or service) for the purpose of meeting specific performance requirements or objectives. Development includes the research functions of design engineering, prototyping, and engineering testing.

“Disallowed costs” – those charges that the Government or its representative determines to be unallowable, in accordance with the terms and conditions of this Agreement.

“Effective Date” means the date when this Agreement or subsequent Technical Direction Letters (TDL) are signed and executed by the Agreements Officer for the Government following execution by CONSORTIUM’s Signatory Authority.

“ECO” means the ERDC Contracting Office in Vicksburg, MS.

“Field” refers to the technology domains of Military Engineering.

“Focus Area” means a broad technology area identified by the Government with regard to capabilities sought within the Military Engineering technology domains.

“Follow-on Production” means an award of a production transaction to a Project Agreement Holder. Follow- on production authority requires two criteria to be satisfied: 1) competitive procedures were used to select the parties to participate in the transaction (for a prototype project); and 2) the participants in the transaction successfully completed the prototype project provided for in the transaction.

“Government” means the U.S. Government and its departments and agencies.

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

“Independent Research and Development (IR&D)” means a CONSORTIUM Member Entity’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 sponsored by a grant or required in the performance of a contract or Other Transaction Agreement. 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” means one of the two (2) forms of accepted “Cost Share” where the CONSORTIUM Member Entity’s non-financial resources expended by the CONSORTIUM Member Entity 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.

“Library” is an electronic file containing White Papers that have been submitted by CONSORTIUM Member Entity(ies) in response to Requests for White Papers (RWP), reviewed by the Government, and deemed technically acceptable in accordance with the procedures outlined in this Agreement.

“Milestone” or “Payable Milestone” means a scheduled event signifying the completion of a designated deliverable or a set of related deliverables as set out in the Project Agreement. A milestone that has been completed by the PAH(s) will be approved for payment to CONSORTIUM. This approved payment will represent an agreed upon dollar amount in relation to performance of a particular Project under this Agreement.

“Non-traditional Defense Contractor” means an entity that is not currently performing and has not performed, for at least the one-year period preceding the issuance of the Request for White Papers by the DoD, any contract or subcontract for the DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 of the U.S. Code and the regulations implementing such section.

Note: Non-traditional Defense Contractors can be at the prime level, team members, subcontractors, lower- tier vendors, or "intra-company" business units; provided the business unit makes a significant contribution to the prototype project (i.e., is a key participant). The ECO will follow the specific guidance from the Office of the Secretary of Defense (OSD) concerning the use of Non-traditional Defense Contractors. Non-traditional Defense Contractors will be required to provide a DUNS number.

Examples of what might be considered a significant contribution may include, but are not limited to, supplying a new key technology or product(s), accomplishing a significant amount of the effort, or in some other way causing a material reduction in the cost or schedule or increase in performance.

"Other Transaction for Prototype Projects” refers to this type of Other Transaction Agreement (OTA). This type of OTA (or OTPA as refer to this document) is 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 OTPA 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” or “Parties” means the Government and/or CONSORTIUM where each entity is individually or collectively identified respectively.

“Pre-Agreement Activity Authorization (PAAA)” means the Government’s agreement to reimburse costs incurred before the effective date of the Project award and in anticipation of the Project Award when such incurrence is necessary to comply with the proposed Project delivery schedule. If approved in a PAAA, these costs are allowable to the extent that they would have been allowable if incurred after the date of the Project Agreement.

“Program Director (PD)” means the Government Technical Administrator at ERDC responsible for Government oversight of the base ERDC Other Transaction for Prototype Agreement.

“Project Agreement (PA)” means the agreement for the Prototype Project between CONSORTIUM and a performing CONSORTIUM Member Entity(ies), or a team of CONSORTIUM Member Entities, or a team of a CONSORTIUM Member Entity(ies) and other subcontractors whose Project Proposal is selected by the Government for funding, and it establishes the scope of work and terms and conditions for performance by, and payment to, the CONSORTIUM Member Entity.

“Project Agreement Holder (PAH)" means the CONSORTIUM Member Entity issued a Project Agreement by CONSORTIUM for the Government-selected Prototype Project to be funded under this Agreement.

“Prototype Project (PP)” or “Project” means a research activity proposed by CONSORTIUM and selected by the Government for award under this Agreement. A Prototype Project will be executed by CONSORTIUM’s Member Entity(ies) either individually, among and between CONSORTIUM Member Entities, and/or among other subcontractors for the agreed-upon period of performance.

“Request for Project Proposal (RPP)” means the announcement by the Government to CONSORTIUM requesting proposals for a prototype project to be performed by CONSORTIUM Member Entity(ies) or a team headed by a CONSORTIUM Member Entity to meet Government requirements related to the Focus Areas.

“Request for White Papers (RWP)” means the announcement by the Government to CONSORTIUM requesting white papers to fulfill a requirement(s) in the designated Focus Area(s).

“Selection Notification” means the Government’s official notification issued to CONSORTIUM, which documents the Government’s selection or rejection of White Paper(s).

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

“Small Business” means a small business concern as defined under Section 3 of the Small Business Act (15 U.S.C. 632).

“Technical Direction Letter (TDL)” means that Government document(s) issued to CONSORTIUM, reflecting the Government's decision to fund all or part of a selected Prototype Project submitted by CONSORTIUM in response to the Request for Project Proposal (RPP) and processed in accordance with the process described in the Standard Operating Procedures (SOP) diagram, in Attachment 1. The TDL shall establish the scope of work, terms and conditions, period of performance and payment terms and conditions and include the proposal of the CONSORTIUM Member Entity(ies), as directed by the Government in accordance with the Government formatted SOW.

“White Paper” means the paper submitted by CONSORTIUM on behalf of a CONSORTIUM Member Entity that describes their proposed solution to meet the government’s requirements as expressed in the Request for White Papers (RWP).

D. Scope

The Government in conjunction with CONSORTIUM shall collaborate on developing and executing a coordinated research and development program designed to mature and integrate technologies 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. Under this Agreement and associated Prototype Projects, the Government, along with CONSORTIUM Member Entity(ies), shall perform prototype projects within the focus areas listed below as they relate to Military Engineering.

1) Protective Structures and Systems: Technologies, components, systems, materials that reduce manpower, logistical requirements or equipment hours and improve survivability of individuals and small units, individual or crew-served fighting positions, platform fighting positions, semi-fixed assets, observation/combat outposts or contingency bases. Prototype processes including planning tools and Tactics, Techniques and Procedures (TTPs) integrating force protection needs for quicker more effective setup and reuse / retrograde of materials. Technologies to enable or improve overwatch, security, perimeter security, port security, border security, de-escalation/turnover, surveillance and warning.

2) Protection and Survivability: Technologies, components, systems and materials at the Unit and System level that provide the ability to detect, disable, survive, and/or defeat, and to determine the threat that enemy weapon systems pose. Survivability efforts include research and prototype activities to improve and enhance the capability and effectiveness in areas of key infrastructure hardening/retrofit, camouflage, detectability, susceptibility, vulnerability, and recoverability. Technologies include protection of personnel, critical assets and facilities from a range of threats, including unconventional, conventional and advanced threats.

3) Geophysical Sensors and data fusion: Technologies, components, systems, and materials to detect, assess and persistently monitor threats and critical infrastructure in all environments including urban, subterranean and complex terrain to increase awareness and enable faster decisions. Integrate geophysical sensors, sensor systems and unmanned systems with natural terrain to obtain automated fusion creating an in-depth Common Operating Picture for super and sub-surface movement, maneuver and force protection planning. Integrates sensors, sensor systems, and unmanned systems with automated fusion creating a Common Operating Picture for integrated force protection, maneuver and defense planning.

4) Vulnerability assessment, detection, and analytics: Technology and processes that are relevant to strategic, operational and tactical analytical framework for understanding anti-terrorism/force protection posture, population and infrastructure disruption from combat, humanitarian, and other disaster situations. Prototype framework supports military assessment of mission assurance, population vulnerability and resilience disruptors, such as combat, disaster, disease, etc., for various environments.

5) Geoscience, Environmental, Geospatial, and Material Modeling and simulation: Technologies to enable and integrate materials-by-design capability as well as new materials and components for advanced force protection for domestic and foreign protective construction. Computational methods to simulate technologies that detect activities in above/below ground and maritime avenues of approach. Technologies will enable virtual material synthesis and optimization to predict system performance, environmental impact/scene clutter on sensor performance, structural response to weapons effects, level of protection and scalability. Technologies and system includes models, surveillance, countermeasures and targeting in dynamic multi-domain environments.

6) Enhance and Assess Mobility of Manned and Unmanned Systems: Technologies, systems and materials to accelerate manned and unmanned platform development, integrate autonomous systems at all levels of operation, execute tactical reconnaissance and real-time mobility predictions to increase mobility and optempo of manned and unmanned ground and watercraft systems in complex environments and through challenging terrain. Technologies to clear or breach obstacles, cross gaps and rivers, improve combat roads/trails, improve vehicle/soil interaction and traction, and detect dynamic mobility hazards in complex environments. M&S enabled analytical tools for predicting the mobility performance of ground vehicles and watercraft in a wide variety of weather and terrain conditions. Technologies to enable autonomous systems assured mobility and situational awareness in various dynamic terrain and environment.

7) Engineering and engineering enabling technologies: Technologies that are relevant, enable support or compliment systems or weapon systems for the DoD and Joint Force. This includes but is not limited to: Combat Engineering; Mobility Obstacles; Explosive Effects; Breaching; Materials; Manufacturing and Process Technologies; Engineering Services, Modeling and Simulation and Virtual Prototyping; Operational Energy; Autonomous Systems; Prime Power; Engineer-related Environmental Technologies; and Engineer mobility, countermobility, and survivability technologies, other Engineer Technology Enablers.

8) Global Access Engineering: Technologies, systems, materials and planning tools to conduct technical reconnaissance, assessment, construction, maintenance, repair, restoration and upgrade of infrastructure critical to Force Projection, transportation and global theater access. Prototypes include remote sensing, on-site tactical, derived and experimental methods for estimating engineering attributes and properties of soils, ice and snow, pavements, matting, natural terrain, bathymetry, river currents, port depths, coastal regions, airfields, road/rail networks, bridges and other infrastructure.

9) Infrastructure Maintenance, Repair and Reconstruction Technologies: Materials and equipment solutions to rapidly assess the condition of existing infrastructure, rapidly repair damaged infrastructure, and rapidly construct new infrastructure such as pavements, bridges, railways, ports, and airfields. Prototypes include advanced physics-based technologies for measuring layer thicknesses, layer strength parameters, rail capacity, pier capacity, bridge structural capacity, and critical engineering properties for engineering analyses. Prototypes also include new advancements in repair equipment solutions and packaging of technologies into prototype kits for technology transition.

10) Engineering Analysis Tools and Decision Aid Prototype Software: Prototypes include software development solutions to integrate advanced engineering algorithms for the evaluation, design, repair and operation of critical infrastructure systems to support force projection and maneuver support planning. Prototype software systems will be used to demonstrate the research results through integration of new analytical methods into practical maneuver solutions using prototype software tools and decision aids.

The Government will determine which focus areas to pursue and Prototype Projects to fund.

E. Prototype Project Selection Process

Once it identifies a need, the Government will issue a Request for White Papers (RWP) in accordance with (IAW) the standard RWP Instructions in Attachment 1. CONSORTIUM MANAGER shall in turn issue the RWP to CONSORTIUM Member Entities for Prototype Project white papers (WPs), which the Government will review and evaluate. The Government will be solely responsible for evaluation of the WPs in accordance with the evaluation criteria described within the RWP. Based on the evaluation of the WPs, the Government will issue a Selection Notification to CONSORTIUM MANAGER. A Request for Project Proposal (RPP) will be issued to CONSORTIUM MANAGER for distribution to the CONSORTIUM Member Entity(ies) selected IAW the RPP Instructions in Attachment 1.

CONSORTIUM Member Entity proposals shall be submitted to CONSORTIUM for review for completeness, format and compliance with statutory provisions and the RPP Instructions. CONSORTIUM shall in turn prepare and transmit final CONSORTIUM Project Proposals to the Government. After Government evaluation of proposal(s) and any negotiations (if applicable), an award decision will be made based upon the available funding.

Individual Determination and Findings documents that affirm each project complies with 10 USC 2371b shall be prepared by the Government for each Prototype Project selected for award under the terms and conditions of this OTPA. Furthermore, project price must be determined to be fair and reasonable and in the best interest of the Government.

A bilateral modification to this Agreement will be executed to obligate project funding, and the Government will issue a Technical Direction Letter (TDL), which establishes the effective date of the project, includes all pertinent project documentation, and serves as authorization to start work. After execution of the modification between CONSORTIUM and the Government, CONSORTIUM shall enter into a Project Agreement with the selected CONSORTIUM Member Entity(ies).

CONSORTIUM shall administer the Government-funded Prototype Project and the resultant CONSORTIUM Project Agreements. The Government's designated Agreements Officer Representative (AOR) for the specific Project will supervise the technical work and monitor performance of agreed milestones performed by the PAH(s) in execution of the Prototype Projects.

The Government reserves the right to revise the terms and conditions of the Prototype Project in accordance with Article III, Section D.

F. Placement of White Paper(s) in the electronic “Library”

All WPs that have been evaluated and deemed to be technically acceptable by the government will be entered into an electronic Library and held for three (3) years. This Library will be maintained by CONSORTIUM and will be made available only to eligible Government customers seeking technology solutions for their requirements. WPs contained within the Library will remain available for consideration and subsequent selection for issuance of an RPP. The RPP will be issued and evaluated IAW the process outlined in Article I, paragraph E, above.

The selection of a WP from the Library for RPP issuance does not guarantee project award. The Government reserves the following rights to: 1) request that the CONSORTIUM Member Entity scale or otherwise adjust the scope of the original WP to meet the Government requirement as identified in the RPP 2) ensure the project meets the Section 815 requirements for a prototype project; and 3) verify availability of adequate and appropriate funding.

Upon a Government award decision, a bilateral modification to this Agreement will be executed to obligate project funding, and a Technical Direction Letter (TDL) will be issued. After execution of the modification between CONSORTIUM and the Government, CONSORTIUM shall enter into a Project Agreement with the selected CONSORTIUM Member Entity.

G. Reports

CONSORTIUM shall maintain records of the research and development activities performed, funding received under the Prototype Project Agreements, and the results of any studies, analyses, tests, and other investigations conducted during the performance of the Projects.

1) Annual Report: CONSORTIUM shall provide a completed “Annual Report Requirements CONSORTIUM Metrics” with each Annual Report, as well as submit the current CONSORTIUM membership list.

2) Prototype Project Reports: The documentation described below shall be prepared by the PAH(s) and provided by CONSORTIUM to the Government IAW this Article.

a) Final Technical Reports. Final technical reports shall be submitted for each Project under this Agreement. This report shall provide a concise and factual discussion of significant accomplishment(s) and processes undertaken for the Project. Each of the topics described below shall be addressed for the Project performed:

b) A brief summary of all work accomplished, to include both negative and positive results. Reasons why established goals and objectives were not met shall be included, if appropriate.

c) All deliverable data generated during the Project.

d) A detailed description of all work accomplished, including but not limited to, theoretical studies, experimental work, mechanical design, theory of operation, test procedures, test results, and those deliverable drawings, graphs, charts, illustrations, or other material needed to clarify the presentation.

e) When test equipment has been designed and constructed for the Government on a Project, a list of all such equipment shall be included. This listing shall include all related drawings and associated lists. The list shall be referenced in the report and included as an appendix.

f) Conclusions and recommendations.

g) New discoveries, inventions, or patent disclosures and specific applications stemming from the Prototype Project, provided that such disclosure shall not compromise the rights of the inventor.

h) A cumulative chronological list of written publications regarding the Prototype Project in technical journals, papers or other presentations at meetings, conferences, seminars, etc. Include those in press, as well as manuscripts, in preparation and planned for later submission. Indicate likely journals, authors and titles.

H. Roles and Responsibilities

Government Responsibilities: The Government will provide strategic technology development and technical guidance through the RWPs and RPPs. The Government will issue RWPs and RPPs to CONSORTIUM to solicit Prototype Projects under this Agreement IAW the SOP procedures outlined within Attachment 1. The Government will be responsible for evaluation and selection/rejection of the project white papers and proposals submitted by CONSORTIUM. The Government will monitor the technical work performed and technical compliance under each funded Project Agreement. The Government may also: 1) directly participate in these collaborative efforts, 2) provide full or partial funding, and 3) share expertise and facilities.

CONSORTIUM Responsibilities: CONSORTIUM shall transmit Government RWPs and RPPs to CONSORTIUM Member Entity(ies) for White Paper and proposal submissions. CONSORTIUM shall enter into Project Agreements with CONSORTIUM Member Entity(ies) whose Prototype Project(s) was selected for award and funded by the Government through the above process. CONSORTIUM shall provide necessary administrative support throughout performance on the resultant project. However, the PAH is solely responsible for performance of the project. CONSORTIUM may collaborate with the Government in the planning, programming and budgeting of the Prototype Projects.

CONSORTIUM Member Entity Responsibilities: CONSORTIUM Member Entities may provide white papers and proposals for Projects in response to the RWPs and RPPs sent to CONSORTIUM addressing the Government’s Focus Areas. Each CONSORTIUM Member Entity receiving a project award will perform the agreed activities defined in the Statement of Work and ancillary documentation as contained within the respective Project Agreement. CONSORTIUM Member Entities may collaborate with CONSORTIUM and the Government in the planning, programming and budgeting of the Prototype Projects.

Additional Government Participation: The Parties agree that other organizations and agencies within the U.S. Government may participate in the collaborative activities through a Memorandum of Agreement, Interagency Agreement or other such arrangement.

I. CONSORTIUM OTPA Operations

The operation of this Agreement shall be in accordance with the Standard Operating Procedures established for these purposes, incorporated into this Agreement as Attachment 1. A CONSORTIUM Member Entity must be a consortium member in good standing to be eligible to submit a white paper in response to an RWP.

ARTICLE II: TERM

A. The Term of this Agreement

The Program commences upon the date of the signatures of all Signatory Authorities and continues for five (5) years from the effective date. The maximum estimated value of all Prototype Projects to be awarded under the terms and conditions of this Agreement is $50 million.

B. Termination Provisions

Subject to a reasonable determination that a project funded under the Program, will not produce beneficial results commensurate with the expenditure of resources, the Government may terminate performance of work for specific project, in whole or in part, if the AO determines that a termination is in the Government’s interest. The AO shall terminate by delivering to CONSORTIUM a Notice of Termination specifying the extent of termination and the effective date.

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

1) Stop work and direct the PAH(s) to stop work as specified in the notice.

2) Place no further subcontracts or orders (collectively referred to as “orders” in this clause) for materials, services, or facilities, except as necessary to complete the continued portion of the specific project.

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

4) With approval or ratification to the extent required by the AO, settle all outstanding liabilities and termination settlement proposals arising from the termination of orders; the approval or ratification will be final for purposes of this clause.

5) As directed by the AO, obtain from the PAH(s) under the terminated portion of the project a transfer of title to the following, where applicable, and deliver to the Government:

a) the fabricated or un-fabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated, and

b) completed or partially completed plans, drawings, information, and other property. This requirement applies only to items that, if the order had been completed, would have been required to be furnished to the Government.

6) Complete performance of any work not terminated, if applicable.

7) Take any action that may be necessary, or that the AO may direct, for the protection and preservation of the property related to the project that is in the possession of the PAH(s) and in which the Government has or may acquire an interest.

8) Use its best efforts to sell, as directed or authorized by the AO, any property of the types referred to under Article II(B)(5); provided, however, that CONSORTIUM:

a) is not required to extend credit to any purchaser,

b) may arrange for the PAH(s) who were performing the terminated work to acquire the property under the conditions prescribed by, and at prices approved by the AO, and

c) will in no event be required to continue with such efforts for more than three (3) months after notice by the AO to sell or disposition such property.

The requirement for at least 1/3 cost share of the total project cost by the PAH(s) is assessed prior to award. In the event that during the course of the performance of the Project Agreement any of the parties to the Project Agreement believe the cost sharing funds available will be insufficient, the PAH(s) shall notify the Government within thirty (30) days of the event that gave rise to the insufficient cost sharing funds. The Government will determine whether it is in its best interest to either renegotiate the scope and/or terms of the Project Agreement to meet the cost share requirement or terminate the Project Agreement in whole or in part.

The proceeds of any transfer or disposition of Project property will be applied to reduce any payments to be made by the Government under that particular Project.

Material Breach by a Consortium Member

If a PAH materially fails to comply with the provisions of a Project Agreement, CONSORTIUM shall notify the AO in writing and the AO, after issuance of a Cure Notice to CONSORTIUM, and after allowing a reasonable time (no shorter than fifteen (15) days) to address the noncompliance, may take one or more of the following actions as appropriate:

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

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

3) Wholly or partly suspend or terminate the project,

4) Withhold further funding for the project, or

5) Take any other legally available remedies.

Termination Costs

The Government, CONSORTIUM and the PAH(s) will negotiate in good faith an equitable reimbursement for work performed toward accomplishment of the task or tasks of Project Agreements. The Government will allow full credit for the Government share of the obligations properly incurred by the PAH(s) or CONSORTIUM prior to termination. Costs incurred by the PAH(s) or CONSORTIUM during a suspension or after termination of a project are not allowable unless the AO expressly authorizes them in either the notices of suspension or termination, or in a subsequent notice. Other PAH costs incurred during a suspension 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 PAH(s) or CONSORTIUM before the effective date of the suspension or termination, were not in anticipation of the suspension or termination, and are non-cancellable; and

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

3) Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article VII - Disputes.

Close-out Procedure

When an individual Project Agreement is completed or terminated after CONSORTIUM has received Government funding, the following closeout procedures apply:

1) The Government will make prompt payments to CONSORTIUM for Payable Milestones reached but not yet paid under the Project Agreement being closed out.

2) CONSORTIUM shall immediately refund any balance of unobligated (unencumbered) cash that the Government has paid and that is not authorized to be retained by the PAH(s) for use in the performance of this Agreement.

3) The Government will obtain from CONSORTIUM within ninety (90) calendar days after the date of completion of a Project Agreement, all reports specified in the Project Agreement. The Government may grant extensions when requested by CONSORTIUM.

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

5) CONSORTIUM shall account for any property received from the Government and shall request disposition instructions from the AO, if applicable. Refer to Article XIII – Title and Disposition of Property.

ARTICLE III: MANAGEMENT OF THE AGREEMENT AND PROTOTYPE PROJECTS

A. CONSORTIUM Consortia

B. The following CONSORTIUM decisions are subject to ECO approval:

1) Changes to the OTPA standard operating procedures (Attachment 1), if such changes substantially alter the relationship of the Parties as originally agreed upon when the OTPA was executed;

2) Changes to, or elimination of, any government funding allocation to any CONSORTIUM Member Entity(ies) as technically and/or financially justified; and

3) Changes to or termination of any Project Agreement due to the failure by the PAH to comply with the provisions of the Agreement.

C. Management and Project Structure

Technical and project management of the coordinated research Program established under this Agreement shall be accomplished through the management structures and processes detailed in this Article.

Signatory Authority: CONSORTIUM’s President has been granted the authority to execute this Agreement on behalf of CONSORTIUM and is responsible for the overall day-to-day management of the consortia and CONSORTIUM’s administration of this Agreement.

CONSORTIUM shall be responsible for the overall day-to-day management of Government-issued Prototype Projects and Project Agreements under this OTPA, including, but not limited to, general oversight of programmatic, reporting, financial, administrative and contractual matters. The AOR shall be responsible for the technical management of Prototype Projects. The PAH(s) shall be solely responsible for the performance of each Prototype Project funded pursuant this Agreement.

D. Modifications

As a result of scheduled meetings, end-of-Program reviews, or at any time during the term of the Agreement, research progress or results may indicate that a change in the Agreement’s scope, objectives or term would be beneficial to Program Objectives. Recommendations for modifications, including justifications to support any changes to the Agreement Scope, will be documented in a letter by CONSORTIUM and submitted to the PD with a copy to the AO. This documentation letter will detail the technical, chronological and financial impact of the proposed modification to the research Program. The PD shall be responsible for the review and verification of any recommendations to revise or otherwise modify the Agreement Scope or other proposed changes to the terms and conditions of this Agreement. The AO will issue all approved modifications to this Agreement.

With regard to Projects the Government determines to fund as a result of the Prototype Project process specified in Attachment 1, any CONSORTIUM Member Entity recommendations for modifications, including justifications to support any changes to the funded Project, will be documented in a letter and submitted to CONSORTIUM, which will in turn transmit the request to the AO with a copy to the Government AOR designated for the particular Project. The AO shall be responsible for reviewing the request and for any subsequent modification of the terms and conditions of the project awards. CONSORTIUM shall modify Project Agreement(s) in the event any such modifications or changes to the Project are made.

For minor or administrative Agreement modifications (e.g., changes in the paying office or appropriation data, changes to Government representatives identified in the Agreement, etc.) the AO will issue a written, unilateral Agreement modification; no signature is required by CONSORTIUM. The Government and CONSORTIUM shall approve and execute a written, bilateral Agreement modification for all other Agreement modifications.

ARTICLE IV: AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by the ECO may be made only by the ECO Agreements Officer. Administrative and contractual matters under this Agreement shall be referred to the following representatives of the Parties:

ERDC Contracting Office: _______________________________

CONSORTIUM:

Technical and Programmatic Matters under this Agreement shall be referred to the following representatives:

CONSORTIUM:

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

Administrative Agreements Office (AAO):

Cognizant Defense Finance and Accounting Service Office:

Agreements Officer Representative (AOR): The AOR will be designated by the Government on a per-project basis.

ARTICLE V: OBLIGATION AND PAYMENT

A. Obligation

Except as specified in Article XX - Liability of the Parties, the Government’s liability to make payments to CONSORTIUM is limited only to those funds obligated under this Agreement or by modification to this Agreement for Projects. The ECO may incrementally fund Projects at discretion of the AO. If modification becomes necessary in performance of Projects, pursuant to Article III, Paragraph D, of this Agreement, the AO and CONSORTIUM shall establish and execute a revised schedule of Payable Milestones, if appropriate.

B. RESERVED

C. Project Payment

The detailed instructions for Project milestone payments will be included in the Technical Direction Letter (TDL) issued by the Government to CONSORTIUM for each project. The TDL and the Project Agreements shall include the approved Payable Milestone schedule. The applicable CONSORTIUM administrative and management fee will be added to each Payable Milestone invoice submitted to the Government over the duration of each Prototype Project.

These invoice(s) shall be submitted by CONSORTIUM through WAWF one month in advance of the projected completion date of each funded Milestone as identified in the Milestone Payment Schedule shown in the awarded TDL. CONSORTIUM will be paid in full for milestones at time of invoice and will maintain the funds in an escrow account. Subsequently, CONSORTIUM shall be responsible for obtaining approval from the assigned project AOR to release payment from the escrow account to the PAH(s) for each project milestone during the progression of the project (e.g., once a PAH reaches a milestone, CONSORTIUM will verify with the AOR that the milestone has been achieved, and the AOR will then notify CONSORTIUM of same for invoice approval to be granted by CONSORTIUM).

Payments to CONSORTIUM will be made by Defense Finance and Accounting Service (DFAS) and payments to the PAH(s) will be made by CONSORTIUM.

D. Cost Share

When there is Cost Sharing, final payment approval for Projects will be made after reconciliation of Government funding with any PAH contributions. CONSORTIUM shall notify the ECO AO immediately if any Cost-Share contribution from a PAH is not made as required.

E. Accounting System Requirements

CONSORTIUM shall maintain an auditable cost accounting system that properly records Government payments into and out of the escrow account for each discrete, funded project milestone and further ensures that CONSORTIUM’s operating expenses and reserve are segregated from project funding. CONSORTIUM shall ensure that appropriate arrangements have been made for receiving, distributing and accounting for Federal funds under this Agreement.

F. Electronic Fund Transfer:

CONSORTIUM must initiate enrollment in EFT by contacting the paying office designated in this Agreement and requesting Form SF 3881, Automated Clearing House (ACH) Vendor/Miscellaneous Payment Enrollment Form. This form must be completed by CONSORTIUM and CONSORTIUM's financial institution, and returned to the paying office. The paying office will complete the process and notify CONSORTIUM that EFT enrollment is complete. All payments under this agreement will be held until CONSORTIUM provides the required EFT enrollment information. Registration and maintaining current information in SAM is mandatory. The CAGE Code and DUNS number for CONSORTIUM are as follows:

CAGE Code:

DUNS number:

G. Financial Records and Reports:

CONSORTIUM shall maintain adequate records to account for Federal funds received under this Agreement and shall maintain adequate records to account for Project Agreement funding provided under this Agreement, should cost-sharing procedures be implemented for funding of a particular Project. CONSORTIUM’s relevant financial records are subject to examination or audit on behalf of the ECO by the Government for a period not to exceed three (3) years after expiration of the term of the Agreement. CONSORTIUM shall ensure that, for each Project, the PAH's relevant financial records are available and subject to examination or audit on behalf of the ECO for a period not to exceed three (3) years after final payment for the PAH's project. The AO or designee shall have direct access to sufficient records and information of CONSORTIUM and the PAH(s) to ensure full accountability for all funding under this Agreement. Such audit, examination or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party. Any audit required during the course of the program may be conducted by the Government using Government auditors or, at the request of CONSORTIUM on behalf of the PAH, by the PAH's external CPA accounting firm at the expense of the PAH.

H. Receipt of Payment:

CONSORTIUM will receive funds from the Government for Prototype Projects and deposit such funds in an escrow account opened and maintained by CONSORTIUM.

I. Pre-Agreement Activity Authorizations:

Pre-Agreement Activity Authorizations (PAAAs) may be requested in writing by CONSORTIUM on a Project-by-Project basis PRIOR to award of a Prototype Project Agreement. Upon receipt of any request for an anticipated Project, the AO will determine and authorize in writing costs allowable to a maximum of $50,000.00, through the date of Project award. The Government will only approve costs associated with the performance of a Prototype Project if they are determined to be reasonable, allocable and allowable. The PAAA request must break out the costs that the CONSORTIUM Member Entity intends to incur prior to award of the Project Agreement. Additionally, the request shall explain why the effort must be started prior to award and include sufficient cost detail. Unless a PAAA is granted by the AO, any costs incurred prior to the execution of the Project Agreement will be the sole responsibility of the prospective PAH and will not be used as the basis of a claim against or construed as an obligation of the Government.

ARTICLE VI: COST SHARING

For each proposed Project, the Government will assess the extent of expected participation by Non-traditional Defense Contractors and/or Small Businesses to determine whether the statutory cost share will be required. One of the following two conditions must be satisfied in order to avoid a cost share:

1) There is at least one Non-traditional Defense Contractor participating to a significant extent in the prototype project, or

2) All significant participants in the transaction other than the Federal Government are Small Businesses or Non-traditional Defense Contractors.

If neither of the above conditions is satisfied, the Government will require that at least one-third of the total cost of the prototype project be paid out of funds, either in-kind and/or cash contributions, provided by parties to the Project other than the Federal Government.

ARTICLE VII: 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

Any disagreement, claim or dispute between the ECO and CONSORTIUM 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…