SI’s Managing Partner, Christian Dunn, sits down with Founder, Richard L. Dunn, to discuss Other Transactions. What makes a good OT Lawyer?
CD: Legal offices, lawyers, tend to be one of the most frequently sited roadblocks for those using other transactions. As the former general counsel at DARPA you have a unique perspective. What do you think are the important qualities for a government lawyer on an OT team?
RD: Other transactions are legal authorities. We work with three principal statutes: 10 USC 2371 (Science and Technology OTs), 10 USC 2371b (Prototype OTS), and 2373 (Procurement for experimental purposes), and I might also mention prize Authority 2374a; but the point is in other transactions the authority is stated in those statutes. There is no gloss of regulation like there is with the Federal Acquisition Regulation, where you turn to the regulation and you may not even look at the statute. The DoD guide on Other Transactions says it is just that: it’s a guide. So, the touchstone in dealing with other transactions is to understand the statutes and attorneys are trained to understand to interpret statutes.
One of the problems in attorneys dealing with something new something, like other transactions, is that they tend to apply preconceived notions to what the statutes might mean. For example, 10 USC 2371, as originally enacted, was specific to DARPA. So, what was authorized by 10 USC 2371 was advanced research projects. Well, what are those words mean? Advanced research projects and the original statute basically meant the kinds of things DARPA does. What were those? Well, DARPA did things like basic, applied, and advanced research, but it also did the interesting things. Under project agile in the Vietnam era, before they were at ease, DARPA purchased a thousand off-the-shelf rifles. DARPA shipped those rifles halfway around the world to Vietnam and they were used in a test program with Vietnamese soldiers and American Rangers for a year. And the result of that: purchasing off-the-shelf weapons, shipping weapons, running a test program, it revolutionized the Army’s approach to small arms weapons. Because that rifle, that commercially available ar-15, and that test program, led in directly to the development of the m16, which became the standard infantry weapon of the Army. So, the breadth and scope of what that basic statute, 10 USC 2371 meant, could be understood, but it was not necessarily evident to everyone. So, the statute was reenacted, and the language was changed to basic, applied, and advanced research. What was the reason for that? Well, there were folks that thought Advanced Research Projects might not be understood by the DoD community as including basic and advanced research, because the kind of organizations (laboratories) that do basic and applied research are not necessarily the kinds of organizations are not necessarily the kinds of organizations that do advanced research that lead directly into major acquisition programs. Well, there were lawyers in the department that looked at that language basic, applied, and advanced research and said, “oh that means the same thing that those terms mean in the financial management manual, 7000.14r.” Well, no. The statute has its own independent meaning and it’s not dependent on FAR regulation, whether it’s the federal acquisition regulation or the financial management regulation, and attorneys, when they’re dealing with these statutes have to be willing to dig down into the legislative history of the statutes in order to discern their real meaning.
What attorneys did in this one particular case, was they looked at basic, applied, advanced research in 10 USC 2371 and reached the conclusion you can only use research development test and evaluation appropriations if you’re executing under a 2371 agreement; and then they looked at 2371 B and it says this statute is executed under the authority of 10 USC 2371 therefore they further reached the conclusion you could only use our DTD appropriations for prototype projects. Well, this is a completely misguided view of the authority that’s available under those statutes and the current DoD guide which was issued in 2008 and says very clearly that the appropriation that should be applied to a project is independent of the contracting instrument that is used. In fact, OT projects have been funded by RDT&E appropriations, procurement appropriations, O&M (operations and maintenance) appropriations, as well as defense production act title 3 funds; and I mean, it is just a normal physical law analysis. But when attorneys come to the to the table they come to the issue and they’re thinking in preconceived notions, preconceived intellectual boxes, they don’t fully elucidate the authority and the power of the OT statutes, and that can be a real stumbling block. Because lawyers, rather than being yes/no gatekeepers, can potentially be an enabler that help people to understand the real scope of the statute and how they can be used; and that requires digging down into the legislative history, and it requires understanding the spirit of other transactions, as well as their language that they’re conveying in the sterile words on a sheet of paper.
Other transactions are statutes that were enacted in order to cure something. There was a problem that they were dealing with and the problem was the traditional acquisition system the “cost too much takes too long system”, the highly regulated purchasing system. Other transactions are not supposed to be that and if you bring a mindset that brings concepts from that traditional system into OTs, you’ll be missing the bet, and lawyers have the potential to understand and liberate folks thinking about other transactions, or they can end up in in that gatekeeper yes/no, mostly no type of tradition and clog up the system and keep needed things from happening. So, there is a great opportunity for lawyers and professionally, it’s very rewarding to be part of crafting a solution and have a key role in strategy and project development. Unfortunately, not all of our DoD attorneys see that as the role they want to participate in. And also, being a member of the team and respecting the opinions and the education and the experience of other team members and bringing that as part of what you do in strategizing on an OT, can only enhance the lawyers role.
CD: If you are a government lawyer with interest in OTs, Rick Dunn assuredly wants to talk to you, and he can be contacted at strategicinstitute.org