GAO-08-798R DOE’s Other Transactions Authority 

United States Government Accountability Office

Washington, DC 20548 

June 6, 2008 

Congressional Committees 

Subject: Department of Energy: Implementation and Use of Other Transactions 

Authority Provided in the Energy Policy Act of 2005 

Since the Department of Energy (DOE) was established in 1977, one of its missions 

has been to promote the nation’s energy security through research, development, and 

demonstration of advanced technologies for meeting future energy demands and 

diversifying the nation’s energy portfolio. As part of this mission, DOE’s Office of 

Energy Efficiency and Renewable Energy conducts research, development, and 

demonstration activities in partnership with industry to advance a diverse supply of 

clean power technologies. The fiscal year 2008 budget for these activities was $1.7 

billion. 

The Energy Policy Act of 2005, the first comprehensive energy legislation in more 

than a decade, includes provisions to address the nation’s long-term energy 

challenges. Key goals of the act include diversifying the nation’s energy supply by 

promoting alternative and renewable sources of energy and by investing in science 

and technology. Provisions in the act promote the use of solar and wind power, 

establish a loan-guarantee program to encourage private investment in new energy 

technologies, and authorize demonstration projects for producing ethanol from 

cellulosic sources such as forest residues, agricultural residues, and scrap wood. 

To provide DOE with more flexibility to enter into agreements with private-sector 

entities, section 1007 of the Energy Policy Act of 2005 gave the Secretary of Energy 

the ability to use “other transactions authority.” This authority, similar to that 

previously authorized for the Departments of Defense and Homeland Security, allows 

an agency to enter into agreements “other than” standard contracts, grants, and 

cooperative agreements. Agreements under this authority would not be subject to the 

Federal Acquisition Regulation or certain other federal laws governing contracts.1

Therefore, the other transactions authority could provide for more flexible terms and 

conditions, thereby enhancing the federal government’s ability to acquire cutting- 

 

1

For a discussion of the laws that do not generally apply to agreements under other transactions 

authority, see GAO, Homeland Security: Further Action Needed to Promote Successful Use of Special 

DHS Acquisition Authority, GAO-05-136 (Washington, D.C.: Dec. 15, 2004), 4–6. 
 

edge science and technology by attracting contractors that had not typically pursued 

government contracts. DOE may use this authority to help bring new ideas and 

innovations to fruition, to attract nontraditional government contractors, and to 

advance the department’s energy security mission. 

The Energy Policy Act of 2005 required DOE to issue proposed guidelines for the use 

of this authority by November 8, 2005 (no later than 90 days after enactment), and 

specified that the department could not use the authority until the final guidelines 

were published.2

 DOE’s authority to enter into these transactions terminates on 

September 30, 2010. 

The act further required that GAO report on the department’s use of other 

transactions authority, including DOE’s ability to attract nontraditional government 

contractors (defined as those who have not had a contract or other agreement with 

the federal government for at least 1 year before the proposed contract). This report 

and our previous discussions and communications with your staff fulfill that 

directive, addressing (1) the steps DOE has taken to implement other transactions 

authority, including the safeguards established, and (2) the extent to which using this 

authority has enabled DOE to attract nontraditional government contractors. 

To determine the steps DOE has taken to implement other transactions authority, we 

reviewed the Energy Policy Act of 2005, the draft and final regulations issued by the 

department, and related guidance and training materials. We also interviewed 

officials with DOE’s Office of Procurement and Assistance Management and Office of 

General Counsel. We obtained documentation of training sessions held in May 2006 at 

DOE headquarters and two sites where the other transactions authority could 

potentially be used. To determine the extent to which the authority has enabled DOE 

to attract nontraditional government contractors, we reviewed DOE’s annual reports 

on its use of the authority, which were submitted to Congress for fiscal years 2006 

and 2007. In addition, we reviewed funding announcements and award files at DOE’s 

field office in Golden, Colorado. DOE’s Golden Field Office is the only location where 

the department has negotiated an agreement using its other transactions authority. 

We also interviewed DOE procurement, legal, and program officials in DOE 

headquarters and at the Golden Field Office, as well as officials with Range Fuels, the 

recipient of the agreement negotiated under DOE’s other transactions authority. We 

conducted this performance audit from January 2008 to June 2008, in accordance 

with generally accepted government auditing standards. Those standards require that 

we plan and perform the audit to obtain sufficient, appropriate evidence to provide a 

reasonable basis for our findings and conclusions based on our audit objectives. We 

believe that the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. 

2

DOE issued its proposed regulations in the Federal Register on November 15, 2005, and the final 

regulations on May 9, 2006, with an effective date of July 10, 2006. 

Page 2 GAO-08-798R DOE’s Other Transactions Authority
Results in Brief 

As required by the Energy Policy Act of 2005, DOE developed and issued final 

regulations to implement other transactions authority before using the authority. 

Furthermore, DOE issued supplemental guidance and developed and presented 

training on how to use the other transactions authority to DOE legal, procurement, 

and program office officials. DOE decided to implement other transactions authority 

by using a special type of financial assistance instrument, called technology 

investment agreements. Technology investment agreements can be negotiated to 

include provisions that would encourage companies with promising new ideas to do 

business with the federal government. In both its regulations and supplemental 

guidance, DOE stressed that other transactions authority was to be used only if 

existing mechanisms, such as contracts or financial assistance, were not feasible or 

appropriate. Finally, DOE developed a training course on how to use this new type of 

agreement and presented the course at headquarters and field locations where 

technology investment agreements were most likely to be used. Overall, we believe 

that the controls DOE put into place over the use of its other transactions authority 

appear to be adequate, assuming that DOE continues to effectively implement the 

safeguards and to incorporate lessons learned as the department negotiates future 

agreements. 

DOE’s use of other transactions authority to date has been limited: the department 

has negotiated one technology investment agreement to construct and operate a 

facility (an integrated biorefinery) that will convert wood wastes to ethanol. This 

project is part of DOE’s efforts to demonstrate the commercial viability of producing 

ethanol from sources other than corn or similar food crops. The company that will be 

constructing this facility, Range Fuels, has not previously done work for the federal 

government and therefore meets the definition of a nontraditional government 

contractor. DOE’s limited use of other transactions authority is consistent with the 

language in the Energy Policy Act of 2005 specifying that the authority is to be used 

only if contracts or other financial assistance mechanisms are not feasible or 

appropriate. 

Background

To support its energy security mission, DOE generally conducts basic energy 

research at its national laboratories using contracts with educational institutions, 

nonprofit organizations, and other private entities. Research and development of new 

technologies, on the other hand, is carried out either by the national laboratories 

under contract or by universities, nonprofit organizations, and private companies 

using financial assistance mechanisms such as grants or cooperative agreements. 

Page 3 GAO-08-798R DOE’s Other Transactions Authority
 

Consistent with the Federal Grant and Cooperative Agreement Act of 1977,3

 DOE 

guidance states that the decision on whether to use contracts or financial assistance 

should be based on the principal purpose of the award, including its intended primary 

beneficiary. 

• Contracts. The primary beneficiary of contracts is the federal government. 

Contracts are used for the purchase of goods and services for the direct benefit of 

the government, and establish arrangements that are clear and certain regarding 

the relationship and performance requirements. Contracts are governed by the 

Federal Acquisition Regulation, and recipients of contracts generally must have 

financial and accounting systems that comply with government cost accounting 

standards. 

• Financial assistance. The primary beneficiary of financial assistance is the 

general public, and the principal purpose of this assistance is to transfer money or 

property to accomplish support of a program or effort authorized by federal law. 

Financial assistance mechanisms include grants and cooperative agreements, 

which differ in the amount of federal involvement in the project. For grants, the 

agency’s involvement is essentially administrative, which includes normal federal 

stewardship responsibilities, such as reviewing performance to ensure that the 

objectives, terms, and conditions of the grant are accomplished. Under cooperative 

agreements, the agency expects to be substantially involved in the project, such as 

reviewing and approving one stage of a project before work can begin on a 

subsequent stage. Under financial assistance mechanisms, payments may be made 

in advance or to reimburse allowed costs. Under DOE regulations, however, these 

mechanisms generally do not allow for reimbursement of costs on the basis of 

demonstrating progress or completing milestones in a project, such as 

construction of a facility. 

To address situations where neither contracts nor financial assistance would be 

appropriate, Congress established “other transactions authority” (for transactions 

other than contracts or financial assistance). Federal agencies could use other 

transactions authority to reduce barriers—such as having to comply with federal cost 

accounting standards—that discourage some for-profit firms from doing business 

with the federal government and to enhance the federal government’s ability to

acquire cutting-edge science and technology. This authority originated in 1958 when 

Congress gave the National Aeronautics and Space Administration the authority to 

enter into contracts, leases, cooperative agreements, or “other transactions as may be 

necessary in the conduct of its work and on such terms as it may deem appropriate.”4

Congress granted the Department of Defense’s Defense Advanced Research Projects 

Agency this authority for research projects in 1989, extended the authority to include 

prototype development projects in 1993, and has since extended the ability to use this 

3

The Federal Grant and Cooperative Agreement Act of 1977 established criteria for determining

whether a transaction is financial assistance. DOE’s Financial Assistance Rules (10 C.F.R. pt. 600) 

establish uniform policies and procedures for the award and administration of financial assistance. 

4

42 U.S.C. 2473(c)(5). 

Page 4 GAO-08-798R DOE’s Other Transactions Authority
authority to the Department of Defense more generally.5

 The Homeland Security Act 

of 2002 created the Department of Homeland Security and granted the agency the 

authority to establish a pilot program using other transactions authority to carry out 

both research and development and prototype projects.6

 The Services Acquisition 

Reform Act of 2003 authorized all federal agencies to use other transactions to carry 

out basic, applied, and advanced research, and development projects that are 

otherwise authorized and may facilitate defense against or recovery from terrorism or 

nuclear, biological, chemical, or radiological attack.7

DOE Developed Regulations as Required, as Well as Guidance and Training, 

Before Using Other Transactions Authority 

As required by the Energy Policy Act of 2005, DOE developed proposed guidelines or 

regulations for its use of other transactions authority and issued final regulations 

before using the authority. The department also issued supplemental guidance and 

developed and presented training on how to use the new mechanism. Overall, these 

steps appear to establish adequate safeguards over the use of other transactions

authority. 

Regulations Established Technology Investment Agreements 

In its proposed and final regulations, DOE stated that it would implement other 

transactions authority through the award and administration of technology 

investment agreements. A technology investment agreement is a special type of 

financial assistance instrument meant to increase the involvement of commercial 

firms in the department’s research, development, and demonstration programs. 

According to DOE regulations, the structure of these agreements may vary, 

depending on such factors as the intellectual property provisions required.8

 The 

regulations established minimum requirements for proper stewardship of federal 

funds, including audits, reporting requirements, and systems to control project funds 

effectively.

Under a technology investment agreement, DOE has greater latitude to negotiate 

provisions that vary from traditional government contracts or financial assistance 

 5

GAO has reported on the Department of Defense’s use of this authority. For example, see DOD 

Research: Acquiring Research by Nontraditional Means, GAO/NSIAD-96-11 (Washington, D.C.: Mar.

29, 1996); Acquisition Reform: DOD’s Guidance on Using Section 845 Agreements Could Be 

Improved, GAO/NSIAD-00-33 (Washington, D.C.: Apr. 7, 2000); and Defense Acquisitions: DOD Has 

Implemented Section 845 Recommendations but Reporting Can Be Enhanced, GAO-03-150 

(Washington, D.C.: Oct. 9, 2002).

6

GAO has reported on the Department of Homeland Security’s use of this special acquisition authority.

See GAO-05-136 and Department of Homeland Security: Status and Accountability Challenges 

Associated with the Use of Special DHS Acquisition Authority, GAO-08-471T (Washington, D.C.: Feb. 

7, 2008.) 

7

P.L. 108-136, sec. 1441. 

8

Intellectual property includes, among other things, patents, copyrights, and technical data. For 

example, intellectual property provisions will apply to the development of a new process or 

technology. 

Page 5 GAO-08-798R DOE’s Other Transactions Authority
agreements. For example, federal regulations generally require that a government 

contractor have a financial system in place that complies with federal costaccounting standards. Companies that do not traditionally contract with the federal 

government generally would not have a financial system that meets governmentunique accounting requirements. Under a technology investment agreement, DOE can 

accept a company’s financial system as long as it complies with generally accepted 

accounting principles, which reduces the administrative burden on the company. 

DOE officials in the Office of Procurement and Assistance Policy and the Office of 

General Counsel worked together to develop the proposed and final regulations. To 

meet the deadline specified in the act for issuing proposed regulations by November 

8, 2005, DOE used the Department of Defense’s regulations for technology investment 

agreements as a starting point for developing its own regulations. Adapting these 

existing regulations allowed DOE to develop its proposed regulations in 3 months. 

DOE Issued Supplemental Guidance Concurrent with Final Regulations

At the same time as it issued its final regulations, the department also issued 

supplemental guidance on how to implement the other transactions authority. For 

example, DOE issued a new financial assistance letter covering such topics as 

documenting the justification for using a technology investment agreement, satisfying 

the requirement for substantial involvement by the department, and outlining the 

review and approval process.9

To demonstrate that a technology investment agreement is warranted, the DOE 

contracting officer, along with the program office requesting the agreement, must 

prepare a justification memorandum for review and approval by senior DOE officials. 

The memorandum must provide information about (1) the nature of the project; (2) 

the recipient, which may be an individual entity or a group but must include at least 

one for-profit firm; (3) the recipient’s commitment to the project and the ratio of 

DOE-to-recipient cost sharing for the project; (4) the degree of involvement of the 

government program official; and (5) the benefits of using a technology investment 

agreement.

Because using a technology investment agreement provides a contracting officer 

considerable latitude in negotiating the provisions of the agreement, DOE also took 

steps to ensure that contracting officers have the necessary level of expertise to make 

such judgments. Specifically, to award a technology investment agreement, a 

contracting officer must have (1) obtained DOE’s highest level (level III) of 

contracting certification based on training and experience, (2) obtained separate 

financial assistance certification, and (3) completed the DOE training on using 

technology investment agreements. Furthermore, a contracting officer may award a 

technology investment agreement only if the officer’s warrant (or authority) 

specifically authorizes the award and administration of a technology investment 

agreement.

 9

Department of Energy, Implementation Guidance for Awarding Technology Investment Agreements, 

Financial Assistance Letter No. 2006-03 (Washington, D.C., May 10, 2006). 

Page 6 GAO-08-798R DOE’s Other Transactions Authority
DOE Developed and Delivered Training to Communicate New Authority

In addition to regulations and supplemental guidance, DOE developed a training

curriculum for technology investment agreements. This curriculum covers topics 

such as the definition of other transactions; the review and approval process; and the 

various phases of an award, from preparing the announcement to negotiating the 

terms of the agreement. DOE presented this training course in May 2006 at three 

locations: DOE headquarters, the Golden Field Office in Colorado, and the National 

Energy Technology Laboratory in Pennsylvania. Program officials, contracting 

officers, and Office of General Counsel officials attended the training. DOE selected 

these locations as the ones most likely to use technology investment agreements in 

the near term. 

Safeguards over Use of Other Transactions Authority Appear Adequate

Taken as a whole, the safeguards or controls that DOE put into place over the use of 

its other transactions authority appear to be adequate, assuming that DOE continues 

to effectively implement them. The regulations, supplemental guidance, and training 

materials all stress that technology investment agreements are to be used only when 

no other type of contract or financial assistance instrument is feasible or appropriate. 

Through training and certification, DOE has taken steps to ensure that contracting 

officers who award and administer technology investment agreements have the 

requisite skills. In addition, the authority or contracting officer’s warrant to award a 

technology investment agreement is not continuous but valid only for negotiating a 

specific agreement. Furthermore, both the justification for using a technology 

investment agreement and the actual agreement require approval by senior DOE 

headquarters officials.

DOE’s Use of Other Transactions Authority to Date Has Been Limited 

Since the final regulations on other transactions authority were issued, the only DOE 

program office that has used the authority is the Office of Energy Efficiency and 

Renewable Energy. To date, DOE has issued only one technology investment 

agreement.10 This limited use of the other transactions authority is consistent with the 

language in the Energy Policy Act of 2005, and with DOE regulations and guidance, 

specifying that the authority is to be used only if contracts or other financial 

assistance mechanisms are not feasible or appropriate. 

Two of DOE’s largest component organizations—the National Nuclear Security 

Administration and the Office of Science—rely primarily on their national 

laboratories for research and development activities. Officials with these two 

organizations said that, as a result, existing contract and financial assistance 

 10The Energy Policy Act of 2005 required DOE to submit an annual report to Congress on the

department’s use of other transactions authority, including the technical objectives for each

agreement, the extent to which the other transaction has contributed to a broadening of the 

technology and industrial base available for meeting DOE’s mission needs, and the extent to which the 

other transaction has fostered new relationships and practices. In its first two reports submitted to 

Congress, covering activity in fiscal years 2006 and 2007, DOE reported that it had the framework in

place for using other transactions authority, but there had been no agreements to date. 

Page 7 GAO-08-798R DOE’s Other Transactions Authority
 

mechanisms generally provide adequate flexibility to meet their research and 

development needs.11 According to an official in DOE’s Office of Procurement and 

Assistance Management, two other program offices—the Offices of Nuclear Energy 

and Fossil Energy—had considered using other transactions authority for a specific 

project but determined that cooperative agreements would work instead. 

Thus, the only DOE program office to use other transactions authority to date is the 

Office of Energy Efficiency and Renewable Energy, which used the authority in

support of its biomass program.12 The first, and so far only, technology investment 

agreement was finalized in November 2007 for funding to design, construct, and 

operate an integrated biorefinery to produce primarily ethanol from trees and forest 

residues (lignocellulosic feedstock). DOE’s cost-share funding of the project was 

established at $76 million, or about 21 percent of the total project cost of 

approximately $356 million. 

The biorefinery project originated in response to a funding opportunity 

announcement issued in February 2006 by DOE’s Golden Field Office to implement 

section 932 of the Energy Policy Act of 2005. Section 932, which deals with bioenergy 

programs, requires that DOE solicit proposals for projects to demonstrate the 

commercial application of integrated biorefineries. According to the act, the 

department should select only proposals that demonstrate that the project will be 

able to operate profitably without direct federal subsidy after initial construction

costs are paid and that enable the biorefinery to be easily replicated. 

In February 2007, DOE announced the selection of six projects in response to the 

funding opportunity announcement; the planned approach was to make awards for 

these projects in two phases. The first phase would cover preliminary design, testing, 

and efforts to comply with environmental regulations for the projects; the second 

phase would cover final design and actual construction of the facilities. Of the six 

projects selected, the application by Range Fuels to construct a full-scale biorefinery 

plant in Georgia to demonstrate its process was closest to actually starting 

construction. DOE and Range Fuels, a nontraditional government contractor, 

negotiated a technology investment agreement for the construction of the plant. For 

the other selected projects, those that have been awarded have involved cooperative 

agreements for the first phase. 

11During 2007, the Office of Science established three DOE Bioenergy Research Centers to accelerate 

basic research in the development of cellulosic ethanol and other biofuels. According to an Office of

Science official, DOE had at one point considered using technology investment agreements. Two of 

the research centers were established at existing DOE national laboratories, however, and the third 

was established under a cooperative agreement. 

12The biomass program focuses on developing biofuel, bioproduct, and biopower technologies in 

partnership with other government agencies, industry, and academia. This program supports four key

priorities of the Office of Energy Efficiency and Renewable Energy’s strategic plan: (1) dramatically

reducing dependence on foreign oil; (2) promoting the use of diverse, domestic, and sustainable energy

resources; (3) reducing carbon emissions from energy production and consumption; and (4) 

establishing a domestic bioindustry. 

Page 8 GAO-08-798R DOE’s Other Transactions Authority
To negotiate the terms of the technology investment agreement, DOE used a team 

consisting of headquarters and Golden Field Office legal counsel (including 

intellectual property attorneys), contracting and financial assistance officers, and 

representatives of the biomass program office. The agreement was structured as a 

cost-reimbursement rather than a fixed-cost instrument, with payments to be made to 

Range Fuels on completion of specified milestones or performance measures 

associated with the construction and operation of its biorefinery. Although DOE 

obligated $50 million in funds to this project for fiscal year 2008, provisions 

negotiated in the technology investment agreement restricted Range Fuels from 

seeking cost reimbursements until it had raised a specified amount of private 

financing. In early April 2008, Range Fuels announced that it had raised the required 

amount of private financing to satisfy this provision. As of the end of April 2008, 

however, Range Fuels had not requested reimbursement for any expenses under the 

agreement, and DOE had not paid out any of the obligated funds. 

DOE used a technology investment agreement for several reasons: 

• The technology investment agreement allowed DOE to include milestones or 

performance measures for progress payments. Under DOE regulations, progress 

payments generally cannot be done under cooperative agreements. 

• DOE could include a provision that required Range Fuels to raise a specified 

amount of private funding before DOE would reimburse any costs. 

• The agreement allowed DOE to accept Range Fuels’ current accounting system 

and the use of Range Fuels’ independent public accountant for audits. 

• DOE was also able to tailor the intellectual property provisions to ensure that a 

successful demonstration project could be replicated, thereby complying with the 

requirement in section 932 of the Energy Policy Act. 

DOE is taking steps to incorporate lessons learned from its first technology 

investment agreement. Specifically, one of the issues that arose during the 

negotiations with Range Fuels was the treatment of rights to real property and 

equipment. Under existing regulations for cost sharing agreements, the recipient 

obtains title to the property and equipment acquired under the agreement. DOE, 

conversely, retains an interest in that property based on the proportion of the 

government’s cost share under which it has pro rata rights in the property disposition 

matters upon project completion. According to DOE officials, in many instances, the 

existence of this government interest makes the project less attractive to the private 

financing market, whose participation is typically needed for project completion. 

For the Range Fuels agreement, DOE contracting, legal, and program officials in the 

Golden Field Office requested and obtained a permission to deviate from standard 

property rights provisions. According to DOE, providing unconditional title to Range 

Fuels for the real property and equipment obtained during the project allowed the 

company to be in a better position to obtain additional private-sector financing. 

Nevertheless, the department recognized that this issue could continue to be a 

Page 9 GAO-08-798R DOE’s Other Transactions Authority
concern. Therefore, DOE formed a working group to study the issue and determine 

how best to address these concerns, if necessary. 

While DOE has made only limited use of the authority to date, officials from several 

DOE offices, including the Office of General Counsel, the Office of Procurement and 

Assistance Management Policy, and the Office of Energy Efficiency and Renewable 

Energy, expressed concerns over the September 30, 2010, termination date for the 

department’s use of other transactions authority. According to these officials, the 

potential of having the authority expire in about 2 years may inhibit program offices 

from using this valuable addition to the department’s tool kit. 

Agency Comments 

We provided a draft of this report to the Secretary of Energy for review and 

comment. The Director of the Office of Procurement and Assistance Management 

provided written technical comments, which we have incorporated as appropriate. 

DOE’s comments on our draft report are included in enclosure I. 

- - - - 

We are sending copies of this report to the Secretary of Energy, appropriate 

congressional committees, and other interested parties. We are also making copies 

available to others upon request. This report will be available at no charge on the 

GAO Web site at http://www.gao.gov. 

If you or your staff have any questions about this report, please contact me at 202-

512-3841 or aloisee@gao.gov. Contact points for our Offices of Congressional 

Relations and Public Affairs may be found on the last page of this report. Key 

contributors to this report include Janet E. Frisch, Assistant Director; Carole J. 

Blackwell; Ellen W. Chu; Karen Keegan; Tim DiNapoli; and Omari Norman. 

Gene Aloise 

Director, Natural Resources 

 and Environment 

Enclosure 

Page 10 GAO-08-798R DOE’s Other Transactions Authority
List of Committees 

The Honorable Jeff Bingaman 

Chairman 

The Honorable Pete V. Domenici 

Ranking Member 

Committee on Energy and Natural Resources 

United States Senate 

The Honorable John D. Dingell 

Chairman 

The Honorable Joe L. Barton 

Ranking Member 

Committee on Energy and Commerce 

House of Representatives 

The Honorable Henry A. Waxman 

Chairman 

The Honorable Thomas M. Davis 

Ranking Member 

Committee on Oversight and Government Reform 

House of Representatives 

Page 11 GAO-08-798R DOE’s Other Transactions Authority
Enclosure I: Comments from the Department of Energy 

(360923) 

Page 12 GAO-08-798R DOE’s Other Transactions Authority
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