TECHNICAL DATA ESCROW IS THE NEW BLACK
Unsurprisingly, the Army has no shortage of hard-charging lead- ers and innovators who have put in the time and effort to manage costs and streamline the acquisition and sustainment manage- ment processes more efficiently. One leader in the world of Army acquisition has been strengthening a reformative concept to help shape a formidable and efficient future Army force.
REFORM BEGINS AT HOME Danielle Moyer, the dual-hatted deputy director to the U.S. Army Communications-Electronics Command (CECOM) Soft- ware Engineering Center and director of the CECOM Office of Acquisition Support, along with her colleagues at Aberdeen Prov- ing Ground, Maryland, have been using unique and innovative strategies and a reformative concept to elevate the culture of the industry and improve how the Army does business.
“What I’m proposing is that we don’t go back to those old ways, where we spent so much time and money on developing things ourselves,” Moyer said. “Tere’s a middle ground to still buy commercial off-the-shelf items and nondevelopmental items, to get them fielded fast and tested quickly and, at the same time, consider the total life cycle of the system.” Nondevelopmental items are like commercial products that the Army does not request or pay for the development of but are exclusively sold to the Army and DOD.
Tat middle ground Moyer uses is a concept known as technical data escrow—an optimal solution that benefits both the developer and the contracting party to mitigate some risks when negotiat- ing a license for software, technology or relevant IP.
Te data escrow account is held by a third party, and is then populated by the manufacturer contractor with designated tech- nical data, blueprint or source code, and will only open and be usable under specified, mutually agreed-upon conditions known as “triggering events.”
Examples of triggering events in the Army acquisition context can range from simple to very complex. Tis can include a contract- ing party filing for bankruptcy, or a contracting party that is just unable to provide sustainment support, such as spare part replace- ments, repairs, software patches, software integration, bug fixes, etc., or simply a manufacturer deciding it no longer wants to be in a specific market.
UNDERSTANDING ESCROW “An escrow account is like an insurance policy that the Army is the beneficiary to,” said Michael Gomes, chief of the Tactical
26 Army AL&T Magazine Fall 2022
Radios Branch and contracting officer and an agreements offi- cer for the Army Contracting Command at Aberdeen Proving Ground—and Moyer’s colleague.
Escrow accounts can help to mitigate the risk of discontin- ued sustainment support, which can potentially save the Army acquisition community frustration, money and—most importantly—time. Escrow accounts can offer the Army acqui- sition community a significantly cheaper solution than outright purchase because the government only receives the data depos- ited into the escrow account. When properly leveraged, escrow accounts provide an additional tool to encourage contractors to continue supporting products, while simultaneously providing the government with a path to ensure continued sustainment in any situation.
Technical data acquisition is often seen as an all-or-nothing game: Either the government buys an expensive technical data pack- age upfront or the contractor holds all the technical data rights, and the government assumes more risk in sustainment. Negoti- ations for limited IP rights or piecemeal technical data packages often slow the contracting process and can put a whole program schedule at risk.
Te technical data escrow concept provides a more flexible option than just purchasing a technical data package. Te arrange- ment protects government interests and is more affordable than purchasing a technical data package outright, and it also provides increased flexibility for the contractor.
“If [a manufacturer] goes out of business, how will we get their data rights to sustain a system, hardware and software?” Moyer said, describing the current practices. “How will we ensure the Army doesn’t have to start from scratch and that there are not fielded systems inoperable due to lack of long-term planning? Planning for the total life cycle of a system that includes some- thing like data escrow up front is a game changer for the Army.”
Te concept provides an affordable way to contract for data that protects government interests while, at the same time, aligning the Army with contemporary and competitive industry practices.
MAKE IT LIKE BUSINESS In the world of Army contracting, Moyer has found that insur- ance for technical data rights is vital for the sustainment process to be successful. As the lead contracting person for both the Product Manager for Airborne Maritime Fixed Station Programs and the Program Executive Office for Command, Control and
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139 |
Page 140 |
Page 141 |
Page 142 |
Page 143 |
Page 144 |
Page 145 |
Page 146 |
Page 147 |
Page 148
