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1 Financial Implications of Contracting for Acquisition Programs Professor Gerry Land CPA, CDFM-A Defense Acquisition University Capital & Northeast Region.

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Presentation on theme: "1 Financial Implications of Contracting for Acquisition Programs Professor Gerry Land CPA, CDFM-A Defense Acquisition University Capital & Northeast Region."— Presentation transcript:

1 1 Financial Implications of Contracting for Acquisition Programs Professor Gerry Land CPA, CDFM-A Defense Acquisition University Capital & Northeast Region Fort Belvoir, VA (703) ; DSN Workshop # PDI – June 2010

2 2 Basic Contracting Information –Contract Families and Types in those Families –Characteristics of Contract Types –Elements of Contract Types –Broad Policies of Contracting Budgeting for Acquisition Contracts Special Topics –Multi-Year Contracts –Planning for Contract Award –Unique Contract Provisions and Clauses –Contracting Through use of MIPRs –Management of on-going Acquisition Contracts Summary Workshop Topics

3 3 Fixed Price Contracts Cost Reimbursement Contracts –Provides for firm price or, in appropriate cases, an adjustable price –Contractors profit built into price –Use when specific requirements known before award –Provides for payment of allowable incurred costs –Contractors profit = fee –Use when uncertainties in contract performance prevent sufficiently accurate estimate of costs for fixed-price contract Two Families of Contracts

4 4 Cost Reimbursement Family Fixed Price Family Types Within the Families Firm Fixed Price (FFP) Fixed Price (EPA) Fixed Price Incentive (FPI) Types Cost Plus Fixed Fee (CPFF) Cost Plus Incentive Fee (CPIF) Cost Plus Award Fee (CPAF)

5 5 Fixed Price Contractors PromiseBest EffortsDeliver specifics Financial Risk to ContractorLowHigh Financial Risk to GovernmentHigh ? ? ? Cash Flow to ContractorAs Cost IncurredOn Delivery Progress Payments % Incurred Performance Based Payments Milestones (Preferred) Government AdministrationHighLow Fee or Profit ?FeeProfit Characteristics of Contract Families Cost Reimbursement

6 6 Elements of Contract Types Firm Fixed Price (FFP) –Negotiated Price (Includes cost and profit) Fixed Price Economic Price Adjustment (FP-EPA) –Negotiated Price (Includes cost and profit) –Price Adjustment (+ or - based on stated economic conditions) Fixed Price Incentive (FPI) –Target Cost –Target Profit –Share Ratio (Government / Contractor) –Ceiling Price

7 7 Cost Plus Fixed Fee (CPFF) –Estimated Cost –Fixed Fee Cost Plus Award Fee (CPAF) –Estimated Cost –Base Fee (< 3% of estimated cost) –Award Fee Pool Cost Plus Incentive Fee (CPIF) –Target Cost –Target Fee –Share Ratio (Government / Contractor) –Minimum Fee –Maximum Fee Elements of Contract Types (Continued)

8 8 Schematics Showing Elements of Contract Types Cost Profit 0/100 Share FFP (PTA) Ceiling Price Target Profit Fee Adjustment Formula (Ratio) FPIF Target Cost CPIF Target Fee Max Fee Min Fee Fee Adjustment Formula (Ratio) Estimated Cost Fixed Fee 100/0 Share CPFF Base Fee (0-3%) Award Fee Pool Estimated Cost CPAF Max Fee Base Fee

9 9 Contracting Officers have relatively broad discretion in determining best type contract for a particular requirement Contract type selected should be based on appropriate criteria Contract should promote Governments interests and motivate contractor to achieve objectives Restrictions on contract types: –Cost-Plus-Percentage-of-Cost contracts are not authorized –Fixed Price development contracts > $25M must be approved by USD (AT&L) –Limitations on Fees for Cost Reimbursement Contracts CPAF – Base Fee may be 0-3% of the estimated cost CPFF – Maximum Fixed Fee Percentages R&D Effort: 15% Production: 10% Architectural & Engineering (A&E) : 6% Broad Policies Relative to Contracts

10 10 Factors in Selecting Type Contract Timing on the acquisition continuum Degree of complexity to satisfy requirement Risk of successful performance Shared responsibility of risk involved Cost, schedule, performance and other incentives Fair and reasonable prices through competition Contracting Officer determines best contract type for required work effort and most reasonable cost to the government For Acquisition Programs

11 11 Defense Acquisition Management System The Materiel Development Decision precedes entry into any phase of the acquisition management system Entrance Criteria met before entering phase Evolutionary Acquisition or Single Step to Full Capability IOC: Initial Operational Capability FOC: Full Operational Capability PDR: Preliminary Design Review CDR: Critical Design Review FRP: Full Rate Production IOC B A Technology Opportunities & Resources Materiel Solution Analysis FRP Decision Review FOC Materiel Development Decision User Needs PDRCDR CDD CPD ICD AoA Pre-Systems AcquisitionSystems Acquisition Sustainment Post CDR Assessment PDR Technology Development Production & Deployment Operations & Support Engineering and Manufacturing Development Post PDR Assessment C or With Emphasis on Contract Type Appropriate to Phase CPFF FFP (LOE) CPFF CPIF CPAFFPIFFP FPI Generally Preferred Contract Type For Different Phases Based on DoDI ; 8 Dec 08

12 12 Cost and Pricing Government policy is to pay a fair and reasonable price for goods and services for which a contract is awarded One responsibility of the contracting officer is to determine the fair and reasonable price Key Question: What is a fair and reasonable price and how is it determined?

13 13 Price Analysis vs. Cost Analysis Price Analysis Fast and cheap to perform Used to analyze sealed bids, small purchases and competitive proposals Cost Analysis Slow and costly to perform Used to analyze sole source and, occasionally, competitive proposals Used when Purchasing: Research and Development efforts Unique sole source items Purchases > $500,000 Standard, off-the-shelf items Repeat buys of other items Purchases < $500,000 Used when Purchasing: Performed by Government Contracting Officer

14 14 Funding Policies for Acquisition - Related Contracts For Research and Development Efforts RDT&E Appropriation Incremental Funding Policy: Budget on basis of cost expected to be incurred during given fiscal year For Production Procurement Appropriation Full Funding Policy: Budget on basis of all cost for specific quantity of militarily usable end items expected to be put on contract during given fiscal year

15 15 Relationship Between Budgeting and Contracting Budgeting Accomplished well in advance of planned contract award In compliance with funding policies of appropriation to be used Amount based on most likely price of planned work effort Funds above budgeted amount may be needed for contract modifications, overruns, requests for equitable adjustments, claims and litigation judgments; request funds when known Contracting Action during execution phase of the acquisition process Upon contract award or modification, must have – and obligate – total amount of funds (budget authority) for price of work effort appropriate for contract type (i.e., cost reimbursement vs. fixed price) Contract price = contractors cost plus company profit or fee

16 16 FFP Negotiated Price FP – EPA Negotiated Price (not including EPA) FPI Target Cost + Target Profit CPFF Estimated Cost + Fixed Fee CPIF Target Cost + Target Fee CPAF Estimated Cost + Base Fee + Maximum Award Fee Budgeting for Different Contract Types General Rule: Budget to Most Likely Price Contract Type Budgeted Amount

17 17 Elements of Contract: – Estimated Cost: 2,000 – Fixed Fee: 150 – Budget Estimate: Budgeting for a CPFF Contract Step One: Determine Estimated Cost Step Three: Determine Budget Estimate Step Two: Determine Fixed Fee Estimated Cost Fixed Fee 100/0 Share CPFF 2,150 Fixed Fee Limitations: R&D - 15% Production - 10% A&E - 6% Budget Estimate = Estimated Cost plus Fixed Fee

18 18 Elements of Contract: –Target Cost: 1,000 –Target Fee: 80 –Maximum Fee: 100 –Minimum Fee: 60 –Sharing Arrangement: 80/20 Target Cost 1000 Budgeting for a CPIF Contract –Target Price: 1,080 Step One: Determine Target Cost Step Three: Determine Other Elements Target Price = Target Cost + Target Fee Step Two: Determine Target Fee Step Four: Determine Target Price Step Five: Determine Budget Estimate Budget Estimate = Target Price Target Fee 80/20 Slope% CPIF

19 19 Elements of Contract: –Estimated Cost: 2,000 –Base Fee: 80 –Maximum Award Fee: 120 Budgeting for a CPAF Contract –Budget Estimate: 2,200 Step One: Determine Estimated Cost Step Three: Determine Maximum Award Fee Step Two: Determine Base Fee Step Four: Determine Budget Estimate Budget Estimate = Estimated Cost; Base Fee; and Maximum Award Fee Base Fee (0-3%) Award Fee Pool Estimated Cost CPAF Max Fee Base Fee

20 20 Budgeting for Severable DoD may budget for and enter into a contract for severable services that begin one fiscal year and ends during the next fiscal year if the contract period does not exceed one year Funds made available for a given fiscal year may be obligated for the total amount of that contract References:(1) Title 10, U.S. Code, Section 2410a (2) Comptroller General Decision B (22 May 96) Services Contracts

21 21 Budgeting for Termination Liability Unliquidated obligation on incrementally funded contract must be sufficient to cover cost of terminating for convenience (if action required) Termination costs can not increase total budget needed If contract terminated, termination costs to be financed from unliquidated obligations without reprogramming Exceptions (expected to be rarely used): –Statutory Waivers: When exempted by Public Law (then budgeted on a pay-as-you-go basis) –Special Termination Cost Clause: Permitted by DFAR in fixed- price incentive and incrementally funded cost reimbursement contracts; approval requires notification of House and Senate Appropriations Committees On Incrementally Funded RDT&E Contracts

22 22 Cost Plus Award Fee (CPAF) contract most suitable when government wants to incentivize contractor in areas other than just cost (e.g., subjective areas such as timeliness and technical performance) Total Award Fee consists of two elements: –Base Fee (0 – 3% of estimated cost of contract minus Award Fee) –Award Fee Pool (from which contractor earns fee based on superior performance in satisfying criteria stated in Award Fee Plan) Amount of fee actually paid is judgment decision made in accordance with criteria in Award Fee Plan Fee to be paid contractor is a unilateral government decision; generally, decision is not subject to Disputes clause Can be contentious topic for both contractor and government Background Award Fees

23 23 Base Fee (0 - 3%) Periods Award Fee Pool Elements of Award Fee Award Fee Base (0 – 3 %) Award Fee Pool Evaluation Periods Total Award Fee must be available at contract award Financial actions re Award Fee Commitment made before start of award period Obligation made after end of award period (but before payment) Application of Award Fees Payment action may be based on: Specific milestones Time periods Combination of milestones and time periods Evaluation Criteria

24 24 Criteria for earning specified in Award Fee Plan Criteria for earning specified in Award Fee Plan Frequency is important to the process Frequency is important to the process Time based periods (usually 6, 9 or 12 month periods) Time based periods (usually 6, 9 or 12 month periods) Milestone or event-based periods Milestone or event-based periods Both time-based and milestone/event-based periods Both time-based and milestone/event-based periods Unearned Award Fee – How can it be used? Unearned Award Fee – How can it be used? Determination for Earning Award Fee FAR prohibits rollover of unearned award fee to future evaluation periods or eventsFAR prohibits rollover of unearned award fee to future evaluation periods or events Unearned award fee may be used by PMO or returned to higher command level for other requirementsUnearned award fee may be used by PMO or returned to higher command level for other requirements * Paragraph (e)(4), dated 14 Oct 2009 *

25 25 Special Topics

26 26 Multi-Year Service Contracts Must be a continuing requirement for the services Furnishing of services will require a substantial initial investment in plant or equipment, or the incurrence of substantial contingent liabilities for the assembly, training, or transportation of a specialized work force Criteria for This Type Service Contract Use of such a contract will promote the best interest of the U.S. by encouraging effective competition and promoting economies of operation Chapter 137 of title 10, United States Code, Sec 2306C, Multiyear Services Contracts. (Originated in 2000 Authorization language)

27 27 Operation, maintenance and support of facilities and installations Maintenance or modification of aircraft, ships, vehicles, and other highly complex military equipment Specialized training necessitating high quality instructor skills (e.g., Pilot and aircrew members; foreign language training) Base services (e.g., Ground maintenance; plane refueling; bus transportation; refuse collection and disposal) Multi-Year Service Contracts Type Services Appropriate for Such Contracts Chapter 137 of title 10, United States Code, Sec 2306C, Multiyear Services Contracts. (Originated in 2000 Authorization language)

28 28 Cancellation Ceiling for Cancellation Ceiling may cover: – Non-recurring Costs – Recurring Cost (with approval of Agency Head and USD (C)) Cancellation Ceiling is: – Negotiated along with other provisions of the contract – A decreasing amount each year – Not an additional amount to be budgeted Multiyear Procurement Contracts MYP contracts with Cancellation Ceiling > $100M require 30 day written notice to Congressional Defense Committees prior to award

29 29 Planning for Contract Awards Consider contract type and award timing early – Factor this information into cost and budgetestimates – Avoid execution issues resulting from planned contract award in first or fourth quarter of fiscal year Initial planning done as part of obligation plan Consult contracting officer when preparing obligation plans Proper planning usually results in better execution

30 30 Two formal methods to change a contract: –Preferred is the Supplemental Agreement: Fully negotiated agreement on specific work, price and schedule. –Less preferred is the Undefinitized Change Order: Tentative agreement on work and schedule but final agreements not yet negotiated; usually has a not-to-exceed price. Contract Changes Constructive change: government action causes contractor to perform work differently than required by written contract Standard changes clause: allows contracting officers to unilaterally direct changes in specification (what), shipping destination (where) and packing (how packaged); contractor may request equitable adjustment in cost and/or schedule

31 31 Contractor required to notify government 60 days prior to incurring costs equal to 75% of amount obligated – Incrementally Funded Cost-Reimbursement Contracts Called Limitation of Funds Clause (LOF) – Fully Funded Cost-Reimbursement Contracts Called Limitation of Cost Clause (LOC) Contract Clauses that Provide Some Control over Unliquidated Obligations Contractor required to notify government 90 days prior to incurring costs equal to 85% of amount obligated – Incrementally Funded Fixed Price Contracts Called Limitation of Government Obligation Clause (LOGO) Notification allows termination liability to be covered by unliquidated obligations on that specific contract

32 32 Contracting of Goods and Services through Use of MIPR Three types of actions by which DoD activities can use Military Interdepartmental Purchase Requests (MIPRs) to obtain goods and services: –Project Orders –Economy Act Orders –Non-Economy Act Orders A MIPR (DD Form 448) is normally used to transfer budget authority from one DoD activity (requesting agency) to another DoD activity (servicing agency) to provide specific goods or services The servicing agency signs and returns DD Form (MIPR Acceptance) to requesting agency to indicate agreement to provide the goods or services

33 33 Project Order MIPR must specifically state the request for goods or services is a Project Order MIPR is then treated as if it were a contract Funds identified on MIPR considered obligated when servicing agency signs and returns DD Form Three tests must be satisfied for action to be considered a Project Order: –Request must be for specific, identifiable supply, material, equipment, work or service; –Servicing agency must be capable of performing requested action; –Requested work must be started within 90 days of acceptance or by first of January of following year. References: US Code, Title 41, Section 23 and DoDI

34 34 Economy Act Order An Economy Act Order is not treated as if it were a contract but, rather, an interagency acquisition agreement While funds on the MIPR are normally considered obligated when accepted by servicing agency, the servicing agency is simply an extension of requesting agency Funds on the MIPR retain original period of availability for obligation purposes Required criteria for requesting agency to use this type order: –Required amount of funding must be available; –Head of requesting agency decides the order is in best interest of the government; –Servicing agency is capable of filling the order or getting by contract the requested goods or services; –Head of requesting agency decides ordered goods or services can not be provided as conveniently or cheaply by contract with a commercial enterprise References: US Code, Title 31, Chapter 15, Section 1535; FMR, Volume 11A, Chapter 3; and FAR at Sub-part 17.5

35 35 Non-Economy Act Order Non-Economy Act Orders are for intra-governmental support where a DoD activity obtains required goods or services from a Non-DoD agency by sending funds to that servicing agency with understanding it will award a contract on its behalf. There must be specific statutory authority to place an order with a Non-DoD agency for this type action and to pay associated fees (there are limited such statutory authorities) Required criteria for requesting agency to use this type order: –Proper funding must be available; –The Non-Economy Act Order does not conflict with another agencys designated responsibilities; –Requesting agency determines order is in best interest of DoD; –Servicing agency is able and authorized to provide requested goods or services Reference: FMR, Volume 11A, Chapter 18 (new chapter as of Feb 08) Non-Economy Act Orders are subject to same fiscal limitations as appropriation from which the funds are provided Highly Controversial Method of DoD Contracting

36 36 Managing On-Going Contracts As with other DoD entities, Acquisition Program Offices forecast obligations and expenditures in Obligation and Expenditure Plans Acquisition Program Offices are responsible for managing obligations and expenditures associated with contracts awarded for their programs Better (i.e., more realistic) forecasts usually result in better execution of those plans Deviations from planned obligations and expenditures must be reported and justified to higher headquarters From Resource Management Perspective

37 37 Managing On-Going Contracts Vast majority of Program Office funding is obligated against contracts Proper management of fiscal aspect of contracts requires close coordination with contractors Contractors provide status reports on many contracts Government Program Offices receive – and should use – information from contractor–provided reports and other government sources (e.g., DCMA) to help manage fiscal aspects of contracts Poor execution of contracts usually result in loss of funds From Contract Management Perspective

38 38 Many acquisition-related contracts require contractors to provide periodic reports reflecting status of contract work effort and costs Earned Value Management –IAW DoDI (Enclosure 4, Table 5): cost or incentive contracts valued at or greater than $20M in then- year dollars are required to implement EVMS whenever implementation of EVMS is required on a contract, a Contract Performance Report (CPR) and Integrated Master Schedule (IMS) is a requirement of that contract EVM related reports not required for firm-fixed price, level of effort or time and materials contracts (use must be approved by MDA) –CPR compares actual work performed on contract and actual cost incurred to planned work and budgeted cost at same point in time –Variances between plans and actuals show potential schedule slips and/or cost overruns –Cost overruns usually impact near term budget requirements Information Available to Improve Management of On-Going Contracts

39 ThresholdsContractsRequirements > $50M Cost or Incentive Equal to or Above Threshold - Compliance with industry EVM standard - Formal EVM system validation - Contract Performance Report - Integrated Master Schedule - Integrated Baseline Reviews - Ongoing surveillance < $50M but > $20M Cost or Incentive Less Than Upper Threshold but Equal to or Above Lower Threshold - Compliance with industry EVM standard - No formal EVM system validation - Contract Performance Report (tailored) - Integrated Master Schedule (tailored) - Integrated Baseline Reviews - Ongoing surveillance < $20M Cost or Incentive Less Than Threshold - EVM optional (risk-based decision) - Cost-benefit analysis required DoD EVM Application Thresholds (DoDI , Enclosure 4, Table 5)

40 40 Contract Funds Status Report (CFSR) –Applicable for contracts over six months in duration –Normally not required for firm fixed price contracts unless circumstances require specific funding visibility –Generally required quarterly unless contract states otherwise –Contractor-prepared report provides basic fiscal information: Initial and adjusted contract price Funds obligated to date Accrued expenditures Contract work authorized and forecast Projected total price of contracted work Forecast of billings to the government by period Estimated termination costs by period Information Available to Improve Management of On-Going Contracts

41 41 Contracting environment is continually changing Contracting is a team effort in partnership with contractor to meet mission needs Fair and realistic prices under competition Contracting Officers have broad discretion in determining contract type Contracting requires knowledge of policy and regulations plus business judgment Actions of contracting personnel are limited to authority delegated for specific purposes Summary From Contract Management Perspective

42 42 Summary Government requires some contractors – by terms of the contract – to periodically report on status of work actually accomplished and at what cost and projected data Government can and should make maximum use of data contained in those reports to better manage execution of the program, to include management of resources Acquisition program offices must follow provisions of Financial Management Regulation (DoD R) for fiscal matters and FAR/DFAR for contracting matters Vast majority of budget authority provided defense acquisition programs is obligated against contracts Resource management in acquisition program offices requires active management of fiscal aspects of contracts From Resource Management Perspective

43 43 Now for the DAU optional commercial

44 Briefing for DAU Students Learn. Perform. Succeed. Jan #

45 Provide a global learning environment to support a mission-ready Defense Acquisition Workforce that develops, delivers, and sustains effective and affordable warfighting capabilities. DAU Mission Impact acquisition excellence through: Acquisition certification and leadership training Mission assistance to acquisition organizations Online knowledge sharing resources Continuous learning assets Strategic workforce planning

46 AT&L Performance Learning Model Knowledge Sharing DAP - Online portal to Big A & HCI knowledge ACC - DoD's online collaborative communities Virtual Library - Online connection to DAU research collection Knowledge Sharing DAP - Online portal to Big A & HCI knowledge ACC - DoD's online collaborative communities Virtual Library - Online connection to DAU research collection Training Courses Classroom & online DAWIA, Core Plus, & Executive Training Courses Classroom & online DAWIA, Core Plus, & Executive Mission Assistance Consulting - Helping organizations solve complex acquisition problems Targeted Training - Tailored organizational training Rapid Deployment Training - On-site & online training on the latest AT&L policies Mission Assistance Consulting - Helping organizations solve complex acquisition problems Targeted Training - Tailored organizational training Rapid Deployment Training - On-site & online training on the latest AT&L policies Continuous Learning CL Modules - Online, self-paced learning modules Conferences - PEO / SYSCOM, Business Managers, DAU Acquisition Community Symposium Continuous Learning CL Modules - Online, self-paced learning modules Conferences - PEO / SYSCOM, Business Managers, DAU Acquisition Community Symposium Formal & informal learning at the point of need

47 Located with our Customers We are part of the community, not just a place to take classes. RegionLocationWorkforce Capital/NortheastFort Belvoir, VA31,566 Mid-AtlanticCalifornia, MD23,110 MidwestKettering, OH18,604 SouthHuntsville, AL28,360 WestSan Diego, CA25,465

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50 FY10 Training - Financial Management BCF 301 Advanced Financial Management CLM 031 Improve Statement of Work CLM 013 Work Breakdown Structure Level III Certification ACQ 101 Fundamentals of Systems Acquisition Management BCF 106 Fundamentals of Cost Analysis BCF 103 Fundamentals of Business Financial Management BCF 102 Fundamentals of Earned Value Management Level I CertificationLevel II Certification BCF 211 Intermediate Business Acquisition Management BCF 203 Intermediate Earned Value Management BCF 205 Contractor Business Strategies CLM 017 Risk Management CLM 024 Contracting Overview Level I Core Plus Courses & CL Module ( See DAU i Catalog ) Level III Core Plus Courses & CL Module ( See DAU i Catalog ) Level II Core Plus Courses & CL Module ( See DAU i Catalog ) Case Based Knowledge Based Vers hrs, online 26 hrs, online 15 hrs, online 40 hrs, online 9 days classroom4 days classroom 5 days classroom 9 days classroom ACQ 201B Intermediate Systems Acquisition, Part B 5 days classroom ACQ 201A Intermediate Systems Acquisition, Part A 37 hrs, online

51 FY10 Training - Cost Estimating Level II CertificationLevel III CertificationLevel I Certification ACQ 101 Fundamentals of Systems Acquisition Management ACQ 201B Intermediate Systems Acquisition, Part B BCF 211 Acquisition Business Management BCF 106 Fundamentals of Cost Analysis BCF 103 Fundamentals of Business Financial Management BCF 102 Fundamentals of Earned Value Management BCF 107 Applied Cost Analysis BCF 302 Advanced Concepts in Cost Analysis CLB 030 Cost Data Sources CLB 023 Software Cost Estimating BCF 206 Cost Risk Analysis BCF 204 Intermediate Cost Analysis BCF 215 Operating and Support Cost Analysis CLB 029 Rates CLB 026 Forecasting Techniques Level I Core Plus Courses & CL Module ( See DAU i Catalog ) Level III Core Plus Courses & CL Module ( See DAU i Catalog ) Level II Core Plus Courses & CL Module ( See DAU i Catalog ) Case Based Knowledge Based Vers hrs, online 26 hours, online15 hrs, online 5 days classroom40 hrs, online5 days classroom 10 days classroom4 days classroom 5 days classroom ACQ 201A Intermediate Systems Acquisition, Part A 37 hrs, online

52 DAUs Commitment to the Defense Acquisition Workforce Shaping a culture of engagement and career-long learning Training - 24 / 7 learning assets: in the classroom and in the workplace Continuous Learning - Helping you learn in the workplace: what you need to know, when you need to know it Mission Assistance - Supporting your organization Knowledge Sharing - Connecting you – the Engaged Learner - with the experts, resources and materials you need to do your job

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