Is it possible to protest an OTA award?

[JackSparrow]

My company is new to bidding on contracts that come out using Other Transaction Authority (OTAs) and recently lost an award. My CEO is asking whether we can protest. My initial research indicates that OTA awards are not subject to protest. Some research indicates you could challenge an agency's initial decision to use an OTA but I assume that would have to be made at pre-proposal stage, not after award. Looking for any feedback confirming this or general experiences dealing with OTAs. Thanks.

[ji20874]

Your research is sound.

[Jacques]

The protest that use of an Other Tranaction Authority was improper would have to be TIMELY.  Whether that is prior to deadline for receipt of proposals or not could depend on the facts that made use of the OTA improper.  If the facts as you see them that made use of an "Other Transaction" improper were apparent on the face of the solicitation, then the protest would be a protest of the terms of the solicitation, and would need to be filed prior to the deadline for receipt of proposals.  That obviously isn't the ONLY context where this comes to light.  For instance, Oracle America, Inc., B-416061, May 31, 2018, 2018 CPD ¶ 180, was a timely post-award protest.  Given your original post, it seems likely your protest is untimely, but it is hard to say for certain.

[Don Mansfield]

42 minutes ago, JackSparrow said:

My company is new to bidding on contracts that come out using Other Transaction Authority (OTAs) and recently lost an award. My CEO is asking whether we can protest. My initial research indicates that OTA awards are not subject to protest. Some research indicates you could challenge an agency's initial decision to use an OTA but I assume that would have to be made at pre-proposal stage, not after award. Looking for any feedback confirming this or general experiences dealing with OTAs. Thanks.

@JackSparrow,

You could protest an OTA award, but the GAO and COFC probably wouldn't have jurisdiction. However, someone filed a protest of an OTA award in a federal district court last year and the Government conceded that the court had jurisdiction. From "Determining Litigation Fora Under The FAR And Under Other Transaction Authority" by John Krieger and Richard Fowler:

Quote

This finally brings us to MD Helicopters. On April 5, 2019, MD Helicopters filed a protest at the U.S. District Court for the District of Arizona challenging the Army’s decision not to advance its proposal for Phase 1 evaluation for the Future Attack Reconnaissance Aircraft Competitive Prototype. The district court had one initial question, but it was a major one: Does the district court have jurisdiction to hear the case? The court ordered the Government to submit a supplemental brief to address
the issue of jurisdiction. On May 30, 2019, the Government submitted a 13-page document addressing the issue. Here is the introduction to the more detailed discussion, the “Bottom Line Up Front (BLUF)”:

The sunset provision under ADRA only terminated district court jurisdiction over bid protests relating to procurements; it did not terminate district court jurisdiction over bid protests relating to non-procurements. In this case, Plaintiff is bringing an Administrative Procedures Act (“APA”) challenge to the Army’s decision not to select it for further participation in a solicitation issued pursuant to the Army’s other transaction authority (“OTA”) codified at 10 U.S.C. § 2371b. The Army’s OTA authority permits it to enter into transactions “other than contracts, cooperative agreements, and grants” to carry out prototype projects. 10 U.S.C. §§ 2371(a); 2371b(a)(1). Such transactions are not procurement contracts and are exempt from the typical panoply of federal procurement statutes and regulations including the Federal Acquisition Regulations (“FAR”), the Defense Federal Acquisition Regulation Supplement (“DFARS”), the Competition in Contracting Act (“CICA”), and the Contracts Disputes Act (“CDA”). Significantly, and directly on point to the Court’s inquiry, the solicitation for the OTA at issue is not a “procurement” for purposes of ADRA, and, accordingly, ADRA does not bar district court jurisdiction over this action. 

The full article is in the October 2019 issue of Briefing Papers. The substance of the article was also published in the December issue of Contract Management magazine as "Aesop’s Guide to Litigating Under the FAR and Other Transactions, Part 1: Protests".

[JackSparrow]

Thank you all. This has been helpful. Appreciate it.

 

[JackSparrow]

As a follow up, I found MD Helicopters Incorporated v. United States of America, et al., No. CV-1902236-PHX-JAT (D.Ariz. Jan. 24, 2020) to hold that the limited waiver of sovereign immunity contained in the APA did not apply and the court lacked jurisdiction under the ADRA’s sunset provision and left room to refile in the proper jurisdiction. In that case, the Plaintiff MD Helicopters, Inc. ("MDHI") alleged that Defendants the United States of America, the United States Department of the Army, and the Secretaries of Defense and the Army in their official capacities (collectively, "the Army"), violated the Administrative Procedure Act ("APA") by giving arbitrary and capricious reasons for not selecting MDHI to participate in the Future Attack Reconnaissance Aircraft Competitive Prototype ("FARA CP") program.