Technology Investments Agreements TIAs

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Technology InvestmentsAgreements (TIAs)

• Training Course
• May 2006

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What is DOEs other transactions authority?

• EPACT 2005, Section 1007 Other Transactions
  - grants the Secretary authority
• to enter into transactions other than contracts,
  cooperative agreements, and grants
• subject to the same terms and conditions as DoD
  under Section 2371 of Title 10 U.S.C.

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What is an other transaction (OT)?

• OTs defined by what they are not
• a transaction other than a contract, grant, or
  cooperative agreement
• Not subject to procurement laws, FAR, DEAR, or
  DOE Assistance Regulations
• Potentially many kinds of instruments

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What is the purpose of this new OT authority?

• Some for-profit firms do not participate in
  Federal RDD programs because of unique
  Government requirements, such as
• system requirements
• cost principles
• IP requirements
• Purpose of OT authority is to broaden the
  technology base available for DOE RDD programs
  by reducing barriers.

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How did DoD implement Section 2371?

• Two different regulations/instruments
• OTs for prototype projects - if purpose is to
  acquire goods and services for DoD.
• called Other Transactions.
• OTs for research - if purpose is stimulation and
  support of a public purpose authorized by law.
• called Technology Investment Agreements (TIAs).

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How did DOE implement its OT authority?

• Except for NNSA and EM, DOE does not generally
  acquire RDD for its own use
• Decided not to develop OT guidance for
  acquisitions at this time
• Developed guidance only for assistance
• Adopted the DoD name for these awards
• TIAs

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Where are the DOE regulations?

• DOE decided to issue a new part to its assistance
  rule (10 CFR Part 603)
• Similar to DoDs TIA rule, but tailored to DOE
  mission requirements
• Final rule was published in Federal Register on
  5/9/06 effective 7/10/06
• Financial Assistance Letter 2006-03 provides
  additional implementing guidance for TIAs.

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How did TIAs evolve?

• 1989 Congress gave DARPA authority to use
  assistance instruments other than grants or
  cooperative agreements for research (pilot)
• Expanded authority to all DoD in 1992.
• TIAs evolved from
• DARPAs OT consortium agreements
• Military Departments flexible cooperative
  agreements.
• 1997 DoD merged two types of agreements into a
  single class of instruments called TIAs.

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What are the two kinds of TIAs?

• Flexible Cooperative Agreement
• 42 U.S.C. 7256(a)
• Flexible (10 CFR 600 applies only if specified in
  agreement)
• Bayh-Dole Act and DOE patent statutes that
  provide for a free Govt. license and other
  restrictions, apply.

• Other Than a Grant or Cooperative Agreement
• 42 U.S.C. 7256(g)
• Maximum flexibility
• Useful for consortia or teaming arrangements
• Exception to Bayh-Dole and DOE patent statutes.

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Who must approve a TIA?

• A TIA must be approved by
• an officer of DOE who has been appointed by the
  President with the advice and consent of the
  Senate and
• who has been delegated the authority by the
  Secretary.
• DOE/NNSA Senior Procurement Executive must concur.

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Who may award a TIA?

• A DOE Contracting Officer if warrant specifically
  authorizes awarding of TIAs
• Certification standards
• level III contracting certification,
• financial assistance certification,
• completion of DOE TIA training.

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What must the CO consider before awarding a TIA?

• Nature of the project
• Type of recipient
• Recipients commitment and cost sharing
• Degree of Government involvement
• Benefits of using TIA

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Nature of Project

• CO must
• Determine that principal purpose is stimulation
  and support of RDD (i.e., assistance) rather
  than acquisition
• Ensure to maximum extent practicable, project
  doesnt duplicate other RDD conducted by DOE
• should consult with program official

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Type of Recipient

• For profit firm must be involved in either
• performance or
• commercial application of results
• TIAs particularly useful for awards to consortium
  that are not formally incorporated
• consortia potentially provide a self-governance
  mechanism.

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Recipients Commitment Cost Sharing

• To maximum extent practicable, non-Federal
  parties provide at least 50 of the resources
• CO must seek cost sharing
• If this amount of cost sharing is impractical, CO
  must determine whether other factors show
  recipient commitment to project success.

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Government Participation

• Government program officials must be
  substantially involved in the project
• similar to a standard cooperative agreement
• DOE program official should participate in
  quarterly reviews of the project
• May be involved in revisions of plans for future
  budget periods

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Benefits of Using a TIA

• CO must answer questions at 603.225 concerning
  whether the use of a TIA will
• permit the involvement of commercial firms or
  business units that would not otherwise
  participate in the project
• foster the creation of new relationships and
  collaborations among participants or
• allow firms to use new business practices.

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Benefits - continued

• Use of TIA is expected to result in the
  development of energy technology that is
• - better,
• - more readily available, or
• - less expensive.
• Contracting Officer must explain benefits in
  Memorandum for Record

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What is an expenditure-based TIA?

• Under an expenditure-based TIA
• Recipient receives amount expended on a project,
  less its cost sharing
• analogous to a cost-type grant
• DOE recovers its share of the unexpended balance
  of funds if project is completed before all the
  funds are expended.

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What is a fixed support TIA?

• Under a fixed support TIA
• Agreement dollars are not meant to be adjusted at
  completion
• recipient is responsible for the balance of
  costs needed to complete research project
• Analogous to a fixed-price contract

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What are the advantages of a fixed support TIA?

• A fixed support TIA does not need to include
• Minimum standards for financial management
  systems
• Cost principles or standards
• Audit requirements
• Minimum standards for purchasing system
• Requirements for financial reports

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When can I use a fixed support TIA?

• If the RDD outcomes are well defined and
  verifiable
• If CO can estimate resources needed to achieve
  outcomes well enough to ensure desired level of
  cost sharing and
• If there is no mandatory amount of cost sharing
  required or amount can be waived.
• Must still seek at least 50 cost sharing.

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How are TIAs more flexible?

• Financial Management Systems Recipients do
  not need to change existing systems as long as
  the systems
• comply with Generally Accepted Accounting
  Principles
• control and properly document all cash receipts
  and disbursements and
• if advance payments are authorized, minimize time
  between payment by DOE and disbursement of funds.

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Flexibility - continued

• Cost principles If compliance requires change
  to cost accounting systems, TIA may specify that
  costs are allowable if
• a reasonable and prudent person would incur such
  costs in carrying out the RDD project
• costs are consistent with the purposes stated in
  the authorizations and appropriations
• Audits Periodic audits may be performed by
  participants IPA, rather than Federal agency

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Flexibility - continued

• IP rights CO, with assistance of IP counsel, may
• Negotiate non-standard IP requirements
• balance between Governments and
• recipients interests
• Allow more time for certain actions, (e.g.,
  notifying DOE of an invention)
• Protect data from publication

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Flexibility - continued

• Payment methods May use
• payable milestone method (preferred method) if
  payments are linked to pre-determined measures of
  observable, technical progress
• reimbursement method or
• advance payment method.

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Pre-Award Phase

• Award competitively to maximum extent feasible
  (statutory requirement)
• Use DOE FOA template if assistance is
  contemplated. May use template for BAAs
• FOA must state
• TIAs may be awarded
• how cost sharing will be considered and if other
  demonstrations of a recipients commitment can be
  offered.

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Pre-award Evaluation

• Contracting Officer must
• Determine if recipient is qualified
• Determine if amount of award is reasonable
• Assess reasonableness of recipients cost-
  sharing contribution
• Review collaboration agreement, if consortium
• Justify use of a fixed-support rather than an
  expenditure-based TIA, if contemplated
• Determine amounts for milestone payments, if used

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Pre-award Evaluation cont.

• Cost sharing contributions are acceptable if
  they
• Represent a real commitment to the project
• Are necessary and reasonable
• Can be charged to project per applicable cost
  standards or principles
• Are verifiable from recipients records
• Are not paid by government under another award
  unless authorized by Federal statute
• Are not costs of prior research

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How do you craft a good TIA?

• CO negotiates from DOE templates
• has considerable latitude to negotiate terms
• only deviations from 10 CFR Part 603 must be
  justified
• must review collaboration agreement and decide
  who signs, if consortium
• Must document file

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What are the IPAR requirements for TIAs?

• New award codes for TIAs
• FT - TIA that is a cooperative agreement
• FO - TIA that is an OT
• EPACT 2005 requires annual report to Congress on
  use of OT authority
• CO must complete 3 additional data fields in PADS
  for FO awards
• use responses in Memorandum for Record

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Post-award Phase

• Similar to other assistance awards
• Key Areas
• Payments review and track
• Project Management Review Meetings
• Financial Management track total
  expenditures
• Audits coordinate and review
• Reports track for timeliness and accuracy

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Judicious Use

• TIAs are a valuable new tool in the right place
• CO has a wide range of discretion in structuring
  an agreement to reduce barriers
• Must use judiciously
• balance benefits with added risks

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TIA Web Site

• http//professionals.pr.doe.gov/ma5/MA-5Web.nsf/F
  inancialAssistance/TechnologyInvestmentAgreements?
  OpenDocument.