GAO: No Jurisdiction to Hear Protester's Elimination from Consideration Under OTA
Recent Government Accountability Office ("GAO") bid protest decision holds that GAO lacks jurisdiction to hear a protester's challenge to being eliminated from further consideration under an Other Transaction Agreement ("OTA"). [1] Notably, while this decision is consistent with GAO's prior rulings, it also appears to be the first instance in which GAO ruled on a protester's exclusion from further consideration under an OTA.
Briefly, in System Architecture Information Technology, B-418721, June 2, 2020, the protester challenged the decision to eliminate from further consideration its "enhanced white paper" for an "emergency 'telecritical' care network to respond to the COVID-19 pandemic." The protester submitted the white paper in response to a request for project proposals issued by Advanced Technology International ("ATI"), an entity that manages the non-profit Medical Technology Enterprise Consortium ("MTEC"). [2]
In response to the protest, the agency argued that GAO should dismiss the protest because the transaction in question was conducted pursuant to the authority under 10 U.S.C. § 2371b, which authorizes the prototype OTA at issue in the protest. In dismissing the protest for want of jurisdiction, GAO reiterated its rule:
Under the Competition in Contracting Act of 1984, and our Bid Protest Regulations, our jurisdiction is confined to protests concerning alleged violations of procurement statutes or regulations by federal agencies in the award or proposed award of procurement contracts, and solicitations leading to such awards. 31 U.S.C. §§ 3551(1), 3552; 4 C.F.R. § 21.1(a). Where an agency has statutory “other transaction” authority, agreements entered into by an agency under such authority are not procurement contracts subject to our bid protest jurisdiction. 4 C.F.R. § 21.5(m); MD Helicopters, Inc., B-417379, Apr. 4, 2019, 2019 CPD ¶ 120 at 2. The only exception to this general rule are situations where an agency is exercising its OTA authority, and the protester files a timely, pre-award protest alleging that the agency is improperly exercising that authority to avoid using a procurement contract. Id.
Takeaway
As we have seen in the past, GAO will not take jurisdiction over a protest concerning an OTA unless the protester's challenge is whether the agency improperly exercised its OTA authority in order to avoid using a "procurement contract." This ruling confirms GAO's narrow jurisdiction to hear protests related to OTAs and serves to remind contractors of the fact that OTAs are virtually insulated from review. [3]
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[1] The protester's submission was in connection with the Army's exercise of its OTA authority pursuant to 10 U.S.C. § 2371b.
[2] Generally, the MTEC consortium is a collaborative effort among industry and academia that works with the U.S. Army Medical Research and Development Command (and other DoD components in the biomedical sciences investigations arena).
[3] Whether the U.S. Court of Federal Claims or a U.S. District Court will eventually take jurisdiction over OTAs is also a thorny issue, and that may not change unless and until Congress takes action. For a brief overview of that jurisdictional quagmire, check out an earlier post here.
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