GAO: Protests Regarding Improper Use of OTA Authority Must be Filed Prior to Proposal Deadline
Recently, the U.S. Government Accountability Office ("GAO") issued a decision that confirmed the scope of its jurisdiction to hear protests related to an agency's improper use of other transaction agreement ("OTA") authority. Where a protester believes that an agency is improperly using its OTA authority, the time to challenge that decision is prior to proposal submission.
Briefly, the protest of Spartan Medical, Inc., B-419503, February 26, 2021, 2021 CPD ¶ ___ involved a challenge to the Air Force's use of its OTA authority for COVID-19 testing supplies. In that regard, prior to the proposal deadline, the protester submitted its white paper for "rapid point-of-care and point-of-use COVID testing products," which the Air Force later determined "would not be further considered." Spartan then filed a protest challenging not only the Air Force's "flawed evaluation" but also its decision to use its OTA authority for the procurement. In response, the Air Force requested dismissal of the protest, arguing that that the protester's complaints were untimely and/or outside of GAO’s bid protest jurisdiction.
In dismissing the protest as untimely, GAO reiterated the general rule that it does not "review protests of the award or solicitations for the award of [OTAs] under our bid protest jurisdiction." [1] GAO then explained, however, that the only exception to this broad jurisdictional bar is where a protester "files a timely, pre-closing date protest alleging that the agency is improperly exercising [its OTA] authority." [2] In other words, where a protester is aware that an agency is seeking to enter an OTA, a protester must challenge the agency's decision to use its OTA authority prior to the proposal deadline. [3]
Takeaway
OTAs are becoming increasingly popular at the Department of Defense. Indeed, a recent NDIA article shows that, "OTA obligations rose from $4.4 billion in 2018 to $7.7 billion in 2019." Given that OTA use will likely continue to increase, contractors should remember that challenges to an agency's decision use its OTA authority must be filed prior to proposal submission.
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[1] System Architecture Info. Tech., B-418721, June 2, 2020, 2020 CPD ¶ 184 at 2; MD Helicopters, Inc., B-417379, Apr. 4, 2019, 2019 CPD ¶ 120 at 2; Blade Strategies, LLC, B-416752, Sept. 24, 2018, 2018 CPD ¶ 327 at 2.
[2] 4 C.F.R. § 21.5(m); Blade Strategies, LLC, B-416752, Sept. 24, 2018, 2018 CPD ¶ 327 at 2.
[3] 4 C.F.R. § 21.2(a)(1); Exploration Partners, LLC, B‑298804, Dec. 19, 2006, 2006 CPD ¶ 201 at 6 n.4.
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