flexibility | The Contracting Education Academy

April 27, 2020 By cs

OTAs given greater flexibility to foster innovation in coronavirus response

Defense Department leaders and agencies have been granted much-needed flexibility to respond to the coronavirus pandemic.

**Click on image above to open memorandum.**

Last week, Under Secretary of Defense for Acquisition & Sustainment Ellen Lord delegated approval authority for Other Transaction Agreements (OTAs) related to the coronavirus response, consistent with Section 13006 of the CARES Act.

In an April 5 memorandum, Under Secretary Lord designated approval authorities for OTA prototype projects and follow-on production contracts and agreements as follows:

Above $100 million, and up to $500 million, to the Directors of Defense Agencies/Field Activities with contracting authority, as well as the Director of the Defense Innovation Unit. This authority was otherwise vested in the Senior Procurement Executives (SPEs) of the Military Departments, the Director of the Defense Advanced Research Projects Agency (“DARPA”), and the Director of the Missile Defense Agency (MDA).
Above $500 million, to the SPEs of the Military Departments, and the Directors of DARPA and the MDA. This authority was otherwise restricted to the Under Secretaries for Acquisition & Sustainment and Research & Engineering. Approval authority for OT prototype actions between $100 million and $500 million may now be further delegated by the SPE or Director.

In addition, in lieu of providing 30 days’ advance notice to congressional defense committees of OTAs above $500 million that are related to COVID-19, Section 13006 permits Under Secretary Lord or the Under Secretary of Defense for Research & Engineering to provide notice as soon as practicable after the OTA’s commencement.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2020/04/other-transaction-authorities-given-greater-flexibility-to-foster-innovation-in-coronavirus-response/

The Contracting Education Academy at Georgia Tech has established a webpage where all contract-related developments related to the coronavirus (COVID-19) are summarized. Find the page at: https://contractingacademy.gatech.edu/coronavirus-information-for-contracting-officers-and-contractors/

August 23, 2019 By cs

The Pentagon embraced flexibility to up its acquisition workforce

The expansive list of federal hiring authorities has seen mixed responses from agency human resource offices, with some saying that options help them to fill critical positions, while others say that the increasing number and complexity of hiring authorities does more damage than good.

But according to the Government Accountability Office, the Department of Defense has had success over the past five years in using such authorities to expand their substantial civilian acquisition workforce.

“The Department of Defense has used human capital flexibilities extensively to hire, recruit and retain its civilian acquisition workforce. Since 2014, usage rates for hiring flexibilities — alternatives to the traditional, competitive hiring process — have generally increased,” an Aug. 15 report said.

“DoD leadership has encouraged its hiring personnel to use these flexibilities, such as direct hire authorities, to reduce the length of the hiring process. From fiscal year 2014 to 2018, DoD used hiring flexibilities for 90 percent of its approximately 44,000 civilian acquisition workforce hiring actions.”

According to data collected by the DoD’s Human Capital Initiative, the civilian acquisition workforce increased by nearly 17 percent over that period, going from 134,808 employees in 2014 to 157,318 in 2018.

Keep reading this article at: https://www.federaltimes.com/management/hr/2019/08/15/the-pentagon-embraced-flexibility-to-up-its-acquisition-workforce

May 16, 2019 By AMK

Two changes Congress can make to speed space acquisition

We now live in a world of accelerated technological advancement. Moore’s Law has come home to roost in the space business. Taking seven to 10 years to develop and deploy operational space systems is no longer efficient nor acceptable.

Recently, as pointed out by the U.S. Government Accountability Office, America’s adversaries have been turning technology in three to four years, while the U.S. is turning technology in seven to 10 years. For the last 25 years, we have been the unchallenged world leaders in space technology. However, if this trend continues it will not be very long until we fall behind. This has been recognized by the GAO and congressional and Air Force leadership. To respond, we must figure out how to move fast, insert technology quickly and respond to rapid technology insertion by our adversaries. Therefore, we need to increase our risk tolerance, and build systems faster and more affordably, allowing us to deploy resilient constellations that can endure losses, and still provide mission capability. To retain system agility and resilience, we cannot afford to buy and field technologically “old” systems up to a decade after program initiation.

In the past, we deployed systems very quickly. The first Defense Meteorological Satellite Program satellite was built in 10 months, but we did this with a high tolerance for risk. While we were risk tolerant, Gen. Bernard Schriever and the early military space pioneers realized that problems in high-technology, low-volume developments would occur, and therefore built in cost and schedule margin. This margin allowed rapid and efficient addressing of problems and issues as soon as they occurred.

Keep reading article at: https://spacenews.com/op-ed-two-changes-congress-can-make-to-speed-space-acquisition/

April 5, 2019 By AMK

Other transactions: Do the rewards outweigh the risks?

In recent years, the federal government has made a large shift in how it expends taxpayer dollars on federal contracts. Numerous laws have mandated new or expanded use of rapid procurement processes or other transaction agreements (OTA), which are now a preferred procurement vehicle.

OTAs, while not contracts governed by the Federal Acquisition Regulation (FAR), are legally binding contracts that were once considered tools of last resort because they put taxpayers and the government at risk.

The theory behind OTAs is that nontraditional vendors would be lured into the government contracting marketplace by streamlined procurement processes. The hope is that nontraditional contractors that were unable or unwilling to enter into traditional procurement contracts would come to the table and bring with them innovative solutions that traditional contractors were not offering. The reality, however, is that these speedy buying procedures are being leveraged by large traditional contractors that are looking to boost their bottom line by avoiding normal contract administration, oversight, and accountability protections.

“Other transactions” is a term commonly used to refer to the authority to enter into transactions other than contracts, grants, or cooperative agreements. Agencies have authority to award such agreements in limited circumstances — research, prototype, and now defense follow-on production projects. Unlike a normal government contract, OTA is promoted as a more flexible agreement that can speed up the buying process and be better tailored based on changes in technology and the government’s needs.

Keep reading this article at: https://www.pogo.org/report/2019/03/other-transactions-do-the-rewards-outweigh-the-risks/

July 13, 2018 By AMK

Other transaction authority: Protests and disputes

Ready or not — Federal agencies are increasingly utilizing Other Transaction Authority (OTA) to craft agreements that are not subject to traditional procurement laws and therefore should, in theory, allow the Government greater access to innovative solutions.

While the goal of OTA procedures may be to avoid bottlenecks inherent in procurement under the Federal Acquisition Regulations (FAR), in the end they may result in valuable contracts with the government. As with any such contracts, it is inevitable that disputes will arise during their formation and administration.

While there is very little precedent relating to protests of OTA awards or claims arising under OTA-awarded contracts, there are some fundamental principles and analogous decisions that suggest how this early history of OTA protests and claims may unfold. This article attempts to portray the current landscape for protests of OTA awards and contract claims arising during performance of an OTA agreement.

But, first, a bit of context.

Executive agencies derive authority to enter into traditional procurement contracts, grants, and cooperative agreements from Congress. “OTA” is a rubric describing a set of statutes that explicitly grant certain agencies the authority to enter into agreements other than procurement contracts, grants, and cooperative agreements. Over the past roughly 60 years, Congress has granted varying degrees of OTA to various agencies, including NASA and the Department of Defense (DoD).

In theory, freedom from the burdens of traditional procurement laws and procedures should allow agencies to craft creative, customized agreements without the requirements and compliance burdens that can scare groundbreaking commercial companies away from the government contracting market. Of great interest to commercial companies, OTA awards are exempt from the Bayh-Dole Act and its associated patent and data rights regulations, allowing parties to an OTA agreement great flexibility in negotiating protection of intellectual property rights. As innovation is increasingly driven in the commercial sector by companies that are not reliant on federal funding, agencies are turning to OTA in order to attract companies that would not otherwise consider pursuing a traditional procurement opportunity.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=716090

Defense Department leaders and agencies have been granted much-needed flexibility to respond to the coronavirus pandemic.

The expansive list of federal hiring authorities has seen mixed responses from agency human resource offices, with some saying that options help them to fill critical positions, while others say that the increasing number and complexity of hiring authorities does more damage than good.

We now live in a world of accelerated technological advancement. Moore’s Law has come home to roost in the space business. Taking seven to 10 years to develop and deploy operational space systems is no longer efficient nor acceptable.

In recent years, the federal government has made a large shift in how it expends taxpayer dollars on federal contracts. Numerous laws have mandated new or expanded use of rapid procurement processes or other transaction agreements (OTA), which are now a preferred procurement vehicle.

Ready or not — Federal agencies are increasingly utilizing Other Transaction Authority (OTA) to craft agreements that are not subject to traditional procurement laws and therefore should, in theory, allow the Government greater access to innovative solutions.

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