Saving Other Transaction Agreements from Bid Protest Review: How to Keep OTs as Innovative and Flexible Tools for Research and Development
Open AccessOther transaction agreements (OTs) are a fast and flexible way for the Department of Defense (DoD) to benefit from the innovation that small businesses and nontraditional defense contractors can offer. The benefits of OTs include that they are more flexible than traditional procurement contracts and they avoid some of the red tape some members of industry associate with the federal procurement system. One form of red tape that OTs largely avoid is the system in which losing competitors can challenge the DoD’s contract awards to their rivals. Such challenges consume time and money and can delay projects. Recently, however, the decision of the Court of Federal Claims (COFC) in Hydraulics International suggested a significant portion of OTs are vulnerable to such bid protest challenges after all.This thesis proposes a three-part response to the developments at the COFC that threaten to mire OTs in bid protest litigation. First, this thesis outlines arguments to challenge the reasoning of the COFC’s prior decisions according itself jurisdiction over protests of OT awards. Second, this thesis proposes using the flexibility of OTs and the flexibility Congress gave the DoD for science and technology projects to insulate future OTs from bid protest review. These recommendations include using royalty and licensing agreements rather than follow-on production awards as an incentive for private innovators to participate in OTs. Third, this thesis recommends Congress clarify the COFC’s jurisdiction over protests of OTs by adding a definition of “procurement” to the statute controlling the COFC’s jurisdiction.
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