In this final blog of PilieroMazza’s blog series, “The Rise of OTA in Defense Contracting,” we discuss DOD’s authority to award OTs to consortia and how joining a consortium may be an ideal way to “get your feet wet” if you’re a small business, non-traditional government contractor, or otherwise new to OTA. Visit this link to access Parts 1-3 in this blog series.
What is a Consortium?
In the context of a DOD OT, a consortium is a relationship between a group of traditional and non-traditional contractors, non-profit organizations, academic institutions, and a government sponsor (e.g., DISA, DARPA, SOCOM, etc.). The group is formed to pursue research, prototypes, and products in a specific technology domain where DOD has identified goals, shortcomings, or some other need to innovate. Consortia can be managed by the government itself or one or more consortium members. Ultimately, the important thing to keep in mind is that a consortium is a group of innovators focused on collaborating to solve technology issues identified by the government sponsor.
How are Consortia Structured?
Readers of our second blog on the basics of DOD’s OTA will recall that 10 U.S.C. § 4021 gives DOD authority to carry out research projects and 10 U.S.C. § 4022 gives DOD authority to carry out prototype projects. Neither of these statutes define or limit the types or uses of consortia with respect to OTs, so DOD reverts to its golden rule for OTA: flexibility. The Office of the Undersecretary of Defense for Acquisition and Sustainment’s Other Transactions Guide states that DOD’s priority for OTs is identifying and teaming with capable partners—including traditional defense contractors, non-traditional defense contractors, academia, small businesses, or a combination of these working together to achieve a common goal.
Flexibility is the name of the game for DOD’s OTA, so the bottom line is that DOD Agreements Officers have broad authority to determine which consortium structure will best serve the agency’s goals. While some projects may require that DOD take a firmer hand in structuring a consortium such that it is tailored to meet a specific objective, DOD generally wants to leverage what works best about industry and non-traditional defense contractors—this includes allowing consortia freedom of structure to determine the best ways to organize their own teams.
Why Consider Working with a Consortium?
For contractors looking to explore OT agreements for the first time, joining a consortium or otherwise aligning with one may be a great way to get your feet wet. Some consortia allow for other-than-full membership, such as associate members, who often join to handle specific tasks full members do not have the interest, bandwidth, or experience to take on. Consortia typically have streamlined processes to navigate OT awards more quickly than traditional government acquisition programs and even other OTA procurements. Many also have a lead member that handles certain administrative burdens so that other members can focus on performance. Importantly, while being a member of a consortium does not guarantee an OT award, it is at least a relatively easy place to start your search and garner slightly more direct access to government programs seeking OT solutions.
For contractors used to going it alone on FAR-based contracts, the collaborative nature of a consortium may be a welcome and exciting change. Consortia can facilitate an open dialogue with government as requirements are developed—they often work with the government to brainstorm what is possible, chase new trends in technology, and leverage cutting-edge solutions to meet the government’s goals. At the end of the day, consortia also offer what is essentially a built-in network of like-minded businesses, with all the knowledge and resources they have to offer. Members can partner to propose solutions and pool their collective experience to drive innovation.
How to Choose a Consortia?
Consortia are typically purpose-built to address a specific technological or industrial concern of a DOD component, and there are a huge variety of them. Start with understanding your line of business, defining different technologies or solutions your company would like to explore, and researching which DOD components are doing work that excites you. From there, start looking into consortia cwhose stated purposes align with your business’ interests and strengths. You can find these lists by doing a simple online search using the keywords such as “OTA consortia.” Once you have your shortlist, reach out and have discussions with members, ask to review membership agreements, get a feel for whether the type of work piques your interest, and make sure the battle rhythm of the consortium seems likely to get your business the level of work you desire.
Keep in mind that not all consortia are equal. Some charge membership fees, some are constrained by resources or the government office that sponsors them, some are only built for research, etc. Before you join a consortium, you will want to carefully review the consortium’s articles of collaboration and/or other membership agreements to ensure that you join with clear eyes. You may find that the benefits of joining outweigh any downsides or risks, but it’s always better to know and mitigate those risks ahead of time.
If you have questions about consortia or OTA, or if you were impacted by any of the administration’s recent executive orders, please contact Cy Alba, Josie Farinelli, or another member of PilieroMazza’s Government Contracts Group. Remember to visit our Government Contract Executive Orders resource center for additional coverage.
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