When the new OSD Other Transactions November 2018 guide came out a couple of weeks ago, I was thrilled. I still am.
The new guide clarified a few areas that had the old experts, the new experts, and the wanna-be experts confused, specifically the areas of funding and competition. That’s great–those areas needed a strong hand at a high level to cut through some of the more conservative interpretations I’ve heard. Guides are often interpreted as “gospel” by more conservative minds, and this guide opened some doors for those innovators who are bumping up against naysayers.
But there were two areas that I’d hoped to see addressed that were left out. For good reason. They’re both sort of “Lorna specific,” and the guide was meant for everyone, not just whatever weirdness I’m doing. I’ll address them here because I do think they’ll keep popping up, even if I’m not the one pushing them.
What’s NOT an Other Transaction
The first area has to do with what isn’t an Other Transaction–which is a pretty good reason not to include it in the Other Transaction November 2018 guide.
Somewhere along the way over the past year as all of these unique statutory authorities have become popular once again, they’ve all been lumped under the Other Transaction umbrella. Most specifically, this includes 10 USC 2373, Procurement for Experimental Purposes, but I’ve also heard Prize Challenges lumped in with 10 USC 2371 as well. That’s not to say they can’t all be used in combination or sequentially, depending on your acquisition. (Just be smart, ‘kay?) In fact, I highly advocate combining these authorities in an overarching acquisition strategy, if it all possible. There’s no sense in hoarding good ideas!
A long time ago when I first started writing fiction commercially, I got the chance to meet one of my favorite novelists at a writers’ conference in New York: a woman who had written book after book of suspense, dark heroes, and their redemption, usually at the warm and toasty hands of a good woman. I was an early adopter of all cool tech, on an electronic bulletin board with 1200 baud dial-up modem and a crazy-high telephone bill every month, but once I’d met her, the high-tech of the day gave me the opportunity to ping her for advice every chance I got it.
I remember telling her, “I have a great idea for my next manuscript…or maybe several manuscripts from now. I’d love to use it in this book, but I don’t want to use up all my best ideas in one place.”
“Don’t ever hoard your ideas,” she told me. “If you have a good idea or technique that fits this book, then use it. Don’t hold back just because you think you’re putting too many good ideas in one book and that ideas won’t come later or that you can’t use the same technique again successfully later.”
That was advice I transferred into my Acquisition career as well. I’ve almost always used more than one innovation in any contract or project because I took her advice not to hoard and not to hold back out of fear of scarcity in the future. That said, I’ve run into quite a few supervisors and procurement analysts who have told me not to use more than one innovation in a contract because it was just too much “new stuff” to try to wrap their heads around and I should be pickier about which innovation to push instead of pushing them all.
Alas, I never listened.
And the pay-off was always worth it for my customer.
The Making of an Agreements Officer
The other area that wasn’t covered in the guide but was alluded to is far more controversial.
According to the new Other Transactions guide, Agreements Officers need not be unlimited warrant Contracting Officers but the process should follow the DoD component’s rules for granting Agreements Officer warrants. I hope this means that DoD components will take a second look at the processes for granting AO warrants and relax into what makes sense for that particular AO’s workload, but I’m not overly hopeful. That may be a little too far to lean just yet.
A Contracting Officer with a limited or unlimited warrant must know the FAR inside and out, and sometimes it’s hard to make that jump from writing FAR-based agreements to statute-based agreements. Other Transactions require a different skill set than contracts though, yes, there could be significant overlap. However, I believe that an AO can you write an Other Transaction Agreement knowing very little about the FAR and still be successful if that person has business acumen and knowledge of certain areas such as data rights.
As hard up as the Department of Defense is for manpower resources and good Contracting personnel, why not allow a few test cases? An AO, for example, may be negotiating OTs at a certain dollar threshold for similar products, and yet never once have headed to the Pentagon to brief an ACAT I program as a lead negotiator and unlimited warrant Contracting Officer.
It’s worth thinking through the AO process a little more and realize that this isn’t our parents’ FAR contract or Contracting Officer warrant. If we can get to the point of not being fearful of Other Transaction Agreements and accept that this is a big paradigm shift in business arrangements, then maybe we can accept that the crafter of those agreements might be a little different from what’s always been, too.
c 2018 Lorna Tedder
- Rapid Acquisition Consultant
- Recently retired Contracting Officer, unlimited AFMC warrant 1991-2018
- Nationally recognized Innovation Thought Leader in Government acquisition
- Rapid acquisition teacher, both FAR and non-FAR based contracting
- Master brain-stormer and advisor to program offices across the DoD
- Expert in developing junior and mid-level personnel to become innovators in Government acquisition
- 3 decades of first-hand experience and success with Other Transactions, Oral Proposals, 10 USC 2373, Broad Agency Announcements, unique pricing arrangements, Price Based Acquisition, Award Without Discussion, streamlined source selections, multiple award IDIQs, UCAs, waivers, omnibus tool creation, Quick Reaction Capability teams, and strategic sourcing
- Do you need help? Would you like me to spend a couple of days teaching your Government team how to use innovative contracting methods? Message me on LinkedIn or my contact page.