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Writer's pictureJoshua Duvall

#GovConThoughts: Nudging Open the Door to COFC Jurisdiction Over Other Transactions

[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]


There is a lot of buzz surrounding a recent COFC decision – Independent Rough Terrain Center, LLC v. United States, No. 24-160 (July 1, 2024) – which held that COFC had jurisdiction over actions taken in connection with a follow-on production OT. That conclusion makes sense in light of the fact that, as the Court noted, a "procurement" (for purposes of COFC jurisdiction) has been broadly defined by the Federal Circuit to occur where the government acquires goods or services (covering all stages of that process). Moving forward, the decision could be viewed as consequential, as it will likely open the door to more protests – both for prototype OTs and for follow-on production OTs. It will therefore be interesting to see how OTA-related bid protest litigation progresses over the next couple of years (with IRTC being among the foundational building blocks on the jurisdictional question).


Notably, and in that regard, the Court characterized a prototype OT and a follow-on production OT as "materially distinguishable," but the Court's analysis will be fertile ground for reasoned distinction given that it principally relied on the SpaceX decision, which could be characterized as an outlier. In many instances, a prototype OT could be placed in the "procurement" bucket, and thus subject to COFC jurisdiction, given that the government is usually getting some type of goods or services from the prototype effort. Regardless, that's not the only arrow in the prototype OT protest quiver. We also may see arguments that Congress opened the (jurisdictional) door a couple years ago when it amended the OT statute to provide that an agency may pursue a follow-on production OT even where the prototype OT solicitation does not provide notice. (Interestingly, the notice of a potential follow-on production OT was why COFC held in Hydraulics Int'l – also cited in IRTC – that it had jurisdiction over a prototype OT.) Thus, to the extent a prototype OT falls outside the broad definition of “procurement," it could be argued that a prototype OT is nevertheless “in connection with a procurement" (and subject to COFC's jurisdiction) because a follow-on production OT is statutorily part of the overall acquisition even without prior notice in the prototype OT solicitation (so long as other requirements are met).


Fun and interesting times, as always, for us #govcon and #bidprotest attorneys.


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