Agreements issued under an agency’s other transactions (OT) authority are not procurement contracts. And the COFC only has jurisdiction to hear protests involving procurement contracts. So you would think a protest challenging an agreement issued under OT authority falls outside COFC’s protest jurisdiction. But in this case, the COFC found it had jurisdiction to hear a protest challenging a follow-on contract awarded under the agency’s OT authority.
Independent Rough Terrain Center, LLC v. United States, COFC No. 24-160
- Prototype and Follow-On Contract – The Army awarded two agreements under its OT authority for prototypes of vehicles used to move shipping containers. Following the prototype phase, the Army issued a solicitation under its OT authority for a follow-on production contract. The Army reviewed proposals from the two companies that provided prototypes and then selected one for award.
- Protest – The company that didn’t receive the follow-on contract filed an agency protest. The agency took corrective action. But the protester then filed a protest with the COFC challenging the corrective action.
- OT Authority – The Federal Circuit holds that transactions executed under an agency’s OT authority are not procurements. The government argued that because the COFC’s bid protest jurisdiction pertains exclusively to procurement contracts, it cannot hear protests executed under an agency’s OT authority. The follow-on contract was executed under the Army’s OT authority, so, the government argued, the court lacked jurisdiction
- Follow-On Contract Was a Procurement Contract – The court rejected the government’s argument. Federal statutes define “procurement” as the process of acquiring products and services. The real issue is whether the transaction is for the acquisition of products or services, not whether the transaction was conducted under OT authority. An OT prototype agreement is not a procurement contract, because the government doesn’t get anything; it doesn’t own the prototype. But the government acquires goods from a follow-on production. Thus, the follow-on production contract was a procurement contract over which the court had jurisdiction.
- SAM Registration – While the court found it had jurisdiction, it found the protester lacked standing to protest. The solicitation incorporated FAR 52.204-7, which required offerors to be registered with SAM when they submit an offer. Here, the protester’s SAM registration had lapsed when it submitted an offer. Accordingly, the protester was ineligible for the award and lacked standing to protest.
–Case summary by Craig LaChance, Editor in Chief
