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Intellectual Property

 

Intellectual Property (IP) is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized and the corresponding fields of law.  Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. [1]

 

Instruction: DoD Instruction 5010.44 “Intellectual Property Acquisition and License”

 

Common types of Intellectual Property include: [1,2]

  • Copyrights: is an exclusive right to control the use, reproduction, display, performance, or creation of “derivative works.” Copyright applies to things like literary works, pictorial, graphic, or sculptural works, sound recordings, musical compositions, and architectural drawings, as well as “performance” art like dances, choreography, and pantomimes. Common words, phrases, numbers, and facts cannot be copyrighted. Unlike patents, in which the owner’s exclusive rights come into existence only if a patent is granted by the PTO, since 1989 the author of a copyrightable work automatically owns the copyright at the time the work is created even without formal registration.
  • Trademarks: is a distinctive name (Coke), mark (Nike Swoosh), or motto (“It’s Miller time!”). A registered trademark is designated by the ® symbol; an unregistered trademark is indicated by the ™ symbol. The government generally has no interest in obtaining trademark rights.
  • Patents: is a monopoly over a unique, non-obvious process, mechanical device, article of manufacture, composition of matter, etc. In the U.S. patents are issued by the Patent and Trademark Office (PTO) and are generally enforceable from the date of issuance through 20 years from the filing date.
  • Data: consist of the legal rights a contractor and/or the government have to use technology and software data. Technical data are recorded forms of information of a scientific or technical nature pertaining to products sold to the government. Product specifications, engineering drawings, and operating or maintenance manuals are examples of technical data. The term does not include computer software or financial, administrative, cost, pricing or other management data.
  • Industrial design rights: is a right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
  • Public Domain: describes the intellectual property that is freely available to everyone. Proof that something is already in the public domain is an absolute defense against the assertion of an exclusive IP right such as a patent or copyright.

 

Intellectual Property law is a highly technical field. Fortunately, the IP issues DoD acquisition professionals are most likely to encounter generally derive from three (3) basic questions. These are: [2]

  1.  Who owns IP created by government employees in the course of their official duties?
  2.  Who owns IP created by a contractor in the course of a government contract?
  3.  What rights does the government have to technical data and computer software it receives from a contractor?

 

AcqLinks and References:

Updated: 3/23/2021

Test & Evaluation

Test & Evaluation Overview

 

The fundamental purpose of Test & Evaluation (T&E) is to provide knowledge to assist in Risk Management that’s involved in developing, producing, operating, and sustaining systems and capabilities. The T&E process is an integral part of the Systems Engineering Process (SEP) which identifies levels of performance and assists the developer in correcting deficiencies.

 

 

T&E provides knowledge of system capabilities and limitations to the acquisition community for use in improving the system performance and optimizing system use and sustainment in operations. T&E enables the Program Manager to learn about limitations (technical or operational), Critical Operational Issues (COI), of the system under development so that they can be resolved prior to production and deployment.

 

Instruction: DoD Instruction 5000.89 “Test and Evaluation”

Guide: DoD Test and Evaluation Management Guide – Dec 2010

Guide: Incorporating Test and Evaluation into Department of Defense Acquisition Contracts

Guide: Cybersecurity Test and Evaluation Guidebook – 27 Oct 2015

 

The main T&E activities conducted during the life-cycle of a system are:

 

The main T&E reviews conducted during the life-cycle of a system are:

T&E progress is monitored by The OSD Office of the Director Operational Test and Evaluation throughout the acquisition of a system and submitted T&E Reports. Their oversight extends to Major Defense Acquisition Programs (MDAPs) or designated acquisitions.

 

AcqLinks and References:

Updated: 6/5/2018

Acquisition Process

Acquisition of Services

DoD Instruction 5000.74

 

DoD instruction 5000.74 establishes the policy, responsibilities, portfolio management, data collection, requirements development and provides direction for the acquisition of contracted services. It compliments DoD Instruction 5000.02 “Operations of the Adaptive Acquisition Framework”.  It provides guidance for the acquisition of contracted services from private sector entities by the DoD with a total estimated acquisition value in current year dollars at or above the simplified acquisition threshold (SAT) and acquisition of all advisory and assistance services (A&AS) in support of research and development R&D or construction activities that are categorized within the knowledge-based services portfolio group

 

DoD Instruction 5000.74 Outline

  • Purpose
  • Applicability
  • Policy
  • Responsibility
  • Information Collection Requirements
  • Releasability
  • Effective Date
  • Enclosures:
    • References
    • Responsibility
    • Overview of Contracted Services
    • Roles and Responsibilities
    • Requirements
    • Data
    • IT Services

AcqLinks and References:

Updated: 9/18/2020

JCIDS Process

Urgent Capability Acquisition

 

The purpose of Urgent Capability Acquisition is to fulfill urgent existing and/or emerging operational needs or quick reactions in less than 2 years. These needs are the most urgent and the highest priority for the DoD. There are three (3) types of Urgent Needs. These types of UONs are defined in CJCS Instruction 5123.01.

 

(1) Joint Urgent Operational Needs (JUON)

A Joint Urgent Operational Need (JUON) identifies and subsequently gains Joint Staff validation and resourcing of a solution desired within days or weeks, to meet a specific high-priority need.  It’s identified by a combatant commander and the scope is limited to addressing urgent operational needs that:

  • Fall outside of the established Service processes and
  • Will seriously endangered personnel or pose a major threat to ongoing operations.

The JUON doesn’t involve the development of new technology or capability; however, the acceleration of an Advanced Concept Technology Demonstration (ACTD) or minor modification of an existing system to adapt to a new or similar mission is within the scope of the JUON validation and resourcing process.

 

(2) Joint Emergent Operational Need (JEON)

UONs that are identified by a Combatant Command as inherently joint and impacting an anticipated or pending contingency operation.

 

(3) Urgent Operational Need (UON)

Capability requirements identified by a DoD Component as impacting an ongoing or anticipated contingency operation. If left unfulfilled, UONs result in capability gaps potentially resulting in loss of life or critical mission failure. DoD Components, in their own terminology, may use a different name for a UON.

 

AcqLinks and References:

Updated: 9/18/2020

Acquisition Process

Business Capability Acquisition Cycle

 

bcac-phasesThe DoD Business Capability Acquisition Cycle (BCAC) is a process that seeks to develop and implement business/acquisition processes to acquire systems more efficiently. The process facilitates changes in the process through doctrine, organization, training, materiel, leadership and education, personnel, facilities, and policy to drive performance improvements, efficiencies, and effectiveness. BCAC aligns commercial best practices and minimizes the need for customization of commercial products to the maximum extent possible.

 

Instruction: DoD Instruction 5000.75 “Business Systems Requirements and Acquisitions”

 

5 Step Process in the BCAC process: [1]

  1. Capability Need Identification: The objective is to establish a clear understanding of needed business capabilities so that the functional sponsor and MDA can decide to invest time and resources into investigating business solutions.
  2. Business Solution Analysis: The objective of this phase is to determine the high-level business processes supporting the future capabilities so that the functional sponsor and CAE or designee can maximize the use of existing business solutions and minimize the creation of requirements that can only be satisfied by a business system.
  3. Business System Functional Requirements & Acquisition Planning: An objective of this phase is to establish the acquisition strategy that will support functional requirements.
  4. Business System Acquisition Testing & Deployment: The objective of this phase is to achieve organizational change through business process changes and delivery of the supporting business system, with minimal customization.
  5. Capability Support: The objective of this phase is to provide enduring support for the capability established by the business system. This includes active engagement in both functional and technical opportunities for continuous process improvement to maintain the relevance of the capability, the supporting technology, and the hosting solution.

 

Figure: Business Capability Acquisition Cycle [1]

Table: DoD Business System Categories [1]

 

AcqLinks and References:

Update: 6/27/2018

Acquisition Process

Acquisition Process Overview

Defense Acquisition System

 

Defense Acquisition System

The Department of Defense (DoD) Acquisition Process is one of three (3) processes (Acquisition, Requirements, and Funding) that makeup and support the Defense Acquisition System and is implemented by DoD Instruction 5000.02 “Operation of the Adaptive Acquisition Framework”. This instruction provides the policies and principles that govern the defense acquisition system and forms the management foundation for all DoD programs. It also identifies the specific statutory and regulatory reports and other information requirements for each Milestone Review and decision point. The DoD calls the system an event-based process where a program goes thru a series of processes, milestones, and reviews from beginning to end.  Each milestone is the culmination of a phase where it’s determined if a program will proceed into the next phase. The DoD management technique that integrates all these essential acquisition activities is called; Integrated Product and Process Development (IPPD).

 

Major Capability Acquisition

The Major Capability Acquisition Process is for those programs where the traditional acquisition approach has been determined to be the most appropriate. The process is made up of phases and milestones and is detailed in DoD Instruction 5000.02 “Operation of the Adaptive Acquisition Framework”.

Acquisition System

 Figure: Major Capability Acquisition Process

 

Below is a list of the phases that make up the DoD Acquisition Process. Each phase is also depicted in the figure above:

Each phase of the acquisition process has specific DoD regulations and federal statutes that must be met. At the end of each phase, there is a Milestone Review (A,B,C) to determine if the acquisition program has met these required regulations and statutes to continue on into the next phase.

 

Visit: Milestone Requirements Matrix lists all the key criteria for each phase.

 

Acquisition Wall Chart: Defense Acquisition Lifecycle Wall Chart – Jan 18

 

Each acquisition program falls into an Acquisition Category (ACAT) depending on its overall funding level and importance. The category dictates the level of oversight a program will require. This oversight is provided by a Milestone Decision Authority (MDA) which is appointed by DoD senior leadership. The MDA seeks advice from a Defense Acquisition Board (DAB), chaired by the Under Secretary of Defense (OSD) Acquisition & Sustainment (A&S), on major acquisition decisions. The most expensive programs are known as Major Defense Acquisition Programs (MDAPs) or Major Automated Information System (MAIS). These programs have the most extensive statutory and regulatory reporting requirements. The ACAT levels are shown below and for more detailed information see the ACAT link.

  • ACAT I: R&D of more than $524M and total procurement $3.065 Billion
  • ACAT II: R&D of more than $200 and total procurement $920 Million
  • ACAT III: Less than ACAT II

 

Adaptive Acquisition Framework

The Adaptive Acquisition Framework (AAF) supports the Defense Acquisition System by allowing acquisition program personnel the authority to plan and manage their programs and is implemented by DoD Instruction 5000.85 “Major Capability Acquisition”. The framework has six (6) distinct acquisition pathways of which Major Capability Acquisition is one of them.

 

Main Reference

The Defense Acquisition Guidebook (DAG) is the main guide that details the overall DoD acquisition process and how it fits into the overall Defense Acquisition System. It provides detailed guidance for the development, execution, and disposal of all DoD acquisition programs. It’s designed to complement the policy documents governing DoD acquisitions by providing the acquisition workforce with discretionary best practices that should be tailored to the needs of each program.

 

 

 

 

 

AcqLinks and References:

Updated: 9/15/2020

Contracts & Legal

Other Transaction Authority (OTA)

 

Other Transaction Authority (OTA) is the term commonly used to refer to the (10 U.S.C. 2371b) authority of the Department of Defense (DoD) to carry out certain prototypes, research, and production projects. Other Transaction (OT) authorities were created to give DoD the flexibility necessary to adopt and incorporate business practices that reflect commercial industry standards and best practices into its award instruments. As of the 2016 National Defense Authorization Act (NDAA) Section 845, the DoD currently has permanent authority to award OT under (10 U.S.C. 2371) for (1) Research, (2) Prototype, and (3) Production Purposes.

 

DAU Website: Other Transaction Authority (OTA) Guide

 

Presentation: DAU Acquisition Symposium OT – 2018

 

(1) Research Purpose allows for basic, applied, and advanced research projects. These OTs are intended to spur dual-use research and development (R&D), taking advantage of economies of scale without burdening companies with Government regulatory overhead, which would make them non-competitive in the commercial (non-defense) sector. Traditional defense contractors are encouraged to engage in Research OTs, particularly if they sought to adopt commercial practices or standards, diversify into the commercial sector, or partner with Non-Traditional Defense Contractors.

 

(2) Prototype Purpose allows for projects directly relevant to weapons or weapon systems proposed to be acquired or developed by the DoD.

 

The statutory authority provides that OT shall be used to: “carry out prototype projects that are 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 Department of Defense, or to the improvement of platforms, systems, components, or materials in use by the armed forces.”

(3) Production Purpose allows for a non-competitive, follow-on OTs to a Prototype OT agreement that was competitively awarded and successfully completed. This statute requires that advanced consideration be given and notice be made of the potential for a follow-on OT; this is a necessary precondition for a follow-on Production OT. As such, solicitation documents and the Prototype OT agreement shall include a notice that a follow-on Production OT is possible.

 

What are the authorities?

OTs are not covered by the Federal Acquisition Regulations (FAR) and are a highly flexible business tool, use of which requires the application of astute business acumen to ensure the smarter, more efficient acquisition of prototype systems for the DoD. OTs require a minimum of at least one nontraditional Defense Contractor participating to a significant extent in the project or a cost-sharing arrangement requiring that at least one-third of the cost of the OTA come from non-Federal sources. [1]

 

Each military service has authority to execute OTs up to $500M with authorization by their Service Acquisition Executive (SAE), and there are no limits on how many OTs may be executed by the services or the cumulative value of such awards. Beyond the $5000M threshold for individual OTs, USD(A&L) must provide authorization to proceed. There is no limit to the number or dollar value of OTs that the DoD may execute in the aggregate.

 

In accordance with statute, this authority may be used only when one of the following is met:  [1,2]

  1. The awardee is a non-traditional defense contractor OR a small business:
    • “Non-traditional defense contractor” is defined by statute as “an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to the full coverage under the cost accounting standards prescribed pursuant to Section 1502 of title 41 and the regulations implementing such section.”
    • “Small business” is defined under section 3 of the Small Business Act (15 U.S.C. 632).
  2. The awardee is a traditional defense contractor, but at least one of the following applies:
    • At least one non-traditional contractor is participating to a “significant” extent
    • The awardee provides a financial or in-kind cost share – typically, a 1/3 cost share is required. However, the Government should not generally mandate cost-sharing requirements for defense unique items.
    • The Service Acquisition Executive makes a written determination that exceptional circumstances justify the use of OTA for the purpose of executing innovative business models or structures that would not be feasible or appropriate with a FAR-based contract.

 

What constitutes a prototype project?

The terms “prototype” and “prototype project” are not defined in statute or regulation. However, in 2002, the Under Secretary of Defense for Acquisition, Technology, and Logistics stated:

“With regard to section 845 authority, a prototype can generally be described as a physical or virtual model used to evaluate the technical or manufacturing feasibility or military utility of a particular technology or process, concept, end item, or system. The quantity developed should be limited to that needed to prove technical or manufacturing feasibility or evaluate military utility. In general, Research, Development, Test & Evaluation (RDT&E) appropriations will be appropriate for OT prototype projects.”

 

What is an “other transaction” (OT)?

An OT is a common term that refers to any kind of transaction other than a contract, grant, or cooperative agreement that is authorized by 10 U.S.C. 2371.  Transactions pursuant to this authority can take many forms and generally are not required to comply with Federal laws and regulations that apply to procurement contracts, grants, and/or cooperative agreements.   To the extent that a particular law or regulation is not tied to the type of instrument used (e.g., fiscal and property laws), it would generally apply to an OT.

 

AcqLinks and References:

Updated: 08/15/2019

Systems Engineering

Systems Engineering Overview

 

Systems Engineering (SE) is the engineering discipline that focuses on integrating all the key elements of a system into one overall system and managing it throughout its lifecycle from cradle to grave. It focuses on the overall development process of a system that is based on established processes, documented needs, and traceable communications or interaction among the customers, users, engineers, and other stakeholders. The overall goal of SE is to develop and design a system that meets a specific set of requirements (needs) in the guidelines established by the Program Manager (PM).  A systems engineer in the DoD will develop, design, allocate, and manage user and system-level requirements (see Requirements Development), lead the development of the system architecture, evaluate design tradeoffs, balance technical risk between systems, define and assess interfaces, provide oversight of verification and validation activities, as well as many other tasks throughout the course of a program. In short, SE is the technical discipline that glues all the pieces together to make the end product.

 

“Systems engineering is an interdisciplinary engineering management process that evolves and verifies an integrated, life-cycle balanced set of system solutions that satisfy customer needs.”

Guide: DoD Systems Engineering Fundamentals

 

Disciplined SE is accomplished by integrating three (3) major activities. These activities are: 

  1. Development phasing that controls the design process and provides baselines that coordinate design effort,
  2. Establishing a Systems Engineering Process that provides a structure for solving design problems and tracking requirements flow through the design effort, and
  3. Life-cycle integration involves customers in the design process and ensures that the system developed is viable throughout its life.

 

SE is focused on many tasks and products throughout the typical DoD acquisition programs. Below is a list of the main tasks/products that are expected of SE in the DoD acquisition process. For a more detailed list of tasks and products, check out the Systems Engineering Activity Map.

 

Systems Engineering Process
The Systems Engineering Process is a comprehensive, iterative, and recursive problem-solving process, applied sequentially top-down by integrated teams. It transforms needs and requirements into a set of system product and process descriptions, generates information for decision-makers, and provides input for the next level of development. The process is applied sequentially, one level at a time, adding additional detail and definition with each level of development.

 

 

AcqTips:

  • There is no one standard definition or systems engineering process. It’s a collection of ways and means across many disciplines. Best practices, guidebooks, and lessons learned are a great source of systems engineering knowledge.
  • Each program is different so there is no one process that perfectly fits. It’s the job of the systems engineer to modify the process to meets their program’s needs the most.
  • IEEE 5288.2 “Standard for Technical Reviews and Audits on Defense Programs” is the standard for technical reviews and audits to be performed throughout the acquisition life cycle for the US Department of Defense (DoD) and other defense agencies.

AcqLinks and References:

Updated: 6/01/2018

Schedule Development

Schedule Development Overview

Example Project 3

 

Scheduling is the act of developing a schedule which is a series of tasks that need to be accomplished in a specific sequence within a given period of time. These tasks grouped together achieve a common goal on a project or program. Scheduling is one of the three main tasks of program management which are; Cost, Schedule, and Performance.

 

Scheduling is a key aspect of program management planning and is integral to a program’s Acquisition Strategy, Technical Baseline, Risk Management Plan (RMP), financial plan, and Requirements Development. It forms the foundation for executing the DoD Procurement (Acquisition, JCIDS, and PPBE) process and developing a program’s Integrated Master Schedule (IMS), Integrated Master Plan (IMP), and Work Breakdown Structure (WBS). In addition, scheduling is an important element of the other program management functions including; Organizing, Staffing, Controlling, and Leading.

 

Guide: Defense System Management College “Scheduling Guide for Program Managers”

 

Effective scheduling supports the following key program management activities:[1]

  • Provides the basis for effective communications within the government team and with contractors
  • Identifies a baseline for program status monitoring, reporting, and program control
  • Facilitates management
  • Provides the basis for resource analysis and Resource Leveling, exploration of alternatives, and cost/time tradeoff studies

There are a number of tasks that are associated with the actual development of a schedule. These tasks should follow a structured approach and include all stakeholders. These tasks include:

Activity Sequencing Activity Duation Estimating Schedule Development

 

Schedule Preparation

Program Managers (PM) must have a good working knowledge of scheduling practices and applications (such as Gantt, Milestone, and Network Diagrams) in order to achieve program goals. Tasks that should be understood by a PM include:

AcqLinks and References:

Updated: 6/20/2019

Acquisition Process

Milestone Decision Authority (MDA)

 

The Milestone Decision Authority (MDA) is the overall executive sponsor responsible for any Major Defense Acquisition Program (MDAP).  The MDA formally initiate each increment of an evolutionary acquisition program as required by DoD Instruction 5000.02 “Operation of the Defense Acquisition System”. They determine if a program has met its phase exit requirement and can proceed into the next phase during a Milestone review in terms of cost, schedule, and performance.  The Under Secretary of Defense (USD) (AT&L) is the MDA for all major Acquisition Category (ACAT) 1 program unless delegated. Program initiation may occur at Milestone B or C.

 

For MDAP at Milestone B, the MDA must certify in writing to Congress that the program is affordable and that the Director of Cost Assessment and Program Evaluation (DCAPE) concurs with reasonable cost and schedule estimates to execute the program development and production plans.

 

MDA Reviews: 

 

The MDA is the approval authority for:

 

AcqLinks and References:

Updated: 7/11/2017