Morrison Foerster’s Government Contracts Insights provides our in-depth analysis of developments and trends impacting government contracting. Through Insights, our attorneys offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. We also examine a full array of non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Morrison Foerster’s nationally recognized Government Contracts and Public Procurement practice represents the world’s leading companies in the aerospace and defense, intelligence, cybersecurity, information technology, financial and professional services, education, healthcare, infrastructure, and logistics support sectors. We are enlisted to address our clients’ most complex and important legal issues. Our work includes contract and subcontract negotiation and other transactional matters, business and regulatory compliance counseling, internal investigations, bid protests, and a wide array of enforcement and litigation matters. Our clients range from Fortune 50 companies to small and medium-sized companies just entering the public sector. We advise both U.S. and non-U.S. companies involved in municipal, state, federal, and non-U.S. procurement matters.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

GAO Protest Timeline

govcon-gao-protest-timeline-thumb.jpg

Govcon GAO Post Award Protest Timeline Article

Contract Disputes Act Claim Timeline

govcon-contract-disputes-timeline-thumb.jpg

The Bayh-Dole Act

govcon-bayhdole-thumb.jpg

Anatomy of a Protest

govcon-federalclaimsprotest-thumb.jpg

Allowability of Legal Costs

govcon-allowabilityoflegalcosts-thumb.jpg

Procurement Integrity Act

240715-procurement-integrity-act-resized.jpg

Govcon-Resources

Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.Tina routinely advises clients concerning:<ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.<h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

reynolds_tina_blog_150x150.png

reynolds_tina_common_640x280.jpg

reynolds_tina_heroretina_2700x1160.jpg

reynolds_tina_mobileretina_750x1040.jpg

reynolds_tina_social_600x600.jpg

Partner

Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the Law Review, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.

tucker_james_blog_150x150.png

tucker_james_common_640x280.jpg

tucker_james_heroretina_2700x1160.jpg

tucker_james_mobileretina_750x1040.jpg

tucker_james_social_600x600.jpg

Of Counsel

Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.

ward_alex_blog_150x150.png

ward_alex_common_640x280.jpg

ward_alex_heroretina_2700x1160.jpg

ward_alex_mobileretina_750x1040.jpg

ward_alex_social_600x600.jpg

Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through Insights, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.Never miss a post. Subscribe to get real-time updates.

Brad is a partner in Morrison Foerster’s Litigation Department, Managing Partner of the Austin office, and Chair of the firm’s Israel practice. He is the former Co-Chair of the firm’s Global Litigation Practice and the Government Contracts + Public Procurement Practice.

Bradley Wine

gov-con-feature-image-thumb1.jpg

Welcome to the Government Contracts Insights Blog

Welcome to the Government Contracts Insights Blog

gov-con-feature-image_(1)1.jpg

The United States Capitol building

Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and proc

Announcements & Press

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

Looks behind the headlines to explore the trends, identify the opportunities, analyze the issues, and provide guidance for science and technology-based companies.

MoFo Tech

Mofo Tech

News and thought leadership from lawyers who are adding value to the legal profession and the communities we call home.

  External-Link

MoFo + Blog

Mofo+

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

Our Government Contracts Insights blog provides in-depth analysis of developments and trends impacting U.S. government contracting and non-U.S. public procureme

Government Contracts Insights

  Linkedin

MoFo LinkedIN

Blog - Govcon RSS

Stay Connected

Never miss a post from Government Contracts Insights. Enter your email below to stay up-to-date.

Subscribe

The latest updates and analysis from Morrison Foerster

Morrison Foerster - Footer

Bid protests of other transaction agreements, also known as “OTs” or “OTAs,” are a common topic for this blog. 

Blogs -  Home Button

Home

Blog - Topics

Acquisition Regulations

Artificial Intelligence + Robotics

Compliance

Coronavirus

Cybersecurity & Data Privacy

Data Rights

Defense

Domestic Preferences

False Claims Act

Federal Procurement

Foreign Corrupt Practices Act

Grants

Health Care

Intellectual Property

International Public Procurement

Labor & Employment

Mergers & Acquisitions

National Security

Protests & Litigation

Resources

Schedule Contracting

Small Business

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

Has the GAO Opened the Door to Certain Other Transaction (OT) Bid Protests? | Government Contracts Insights

Locke Bell

Bid protests of other transaction agreements, also known as “OTs” or “OTAs,” are a common topic for this blog. These federal agreements differ from your everyday procurement contracts in that they are not subject to the Competition in Contracting Act (CICA), Federal Acquisition Regulation (FAR), Department of Defense (DoD) FAR Supplement (DFARS), or other common procurement laws and regulations. Although they are not a particularly new phenomenon, the number and size of OT awards has increased exponentially in the last ten years, driven chiefly by a revised statutory authority and increased popularity at DoD.<a href="#_ftn1" target="_self">[1]</a> So, too, come the bid protests. But, being subject to different legal frameworks, an OT bid protest is not a garden-variety bid protest challenging a solicitation or award of a procurement contract. Thorny questions abound, particularly on jurisdiction and appropriate forum between the Government Accountability Office (GAO), the Court of Federal Claims, and other federal courts of general jurisdiction. We have discussed these questions at length in other posts (see <a href="https://govcon.mofo.com/topics/another-piece-to-the-puzzle-court-of-federal-claims-has-jurisdiction-over-bid-protest-where-the-disputed-other-transaction-could-lead-to-a-follow-on-production-contract?_gl=1*re7ds*_ga*MTkyMTA2Mzg1OC4xNzE3MDEzODc5*_ga_3HVRG7GH76*MTcxNzUxNjI3OS40LjEuMTcxNzUxNjMwNC4wLjAuMA.." target="_self">Another Piece to the Puzzle: Court of Federal Claims Has Jurisdiction over Bid Protest Where the Disputed Other Transaction Could Lead to a Follow-on Production Contract</a>, <a href="https://govcon.mofo.com/topics/where-can-you-protest-an-other-transaction-award-insights-from-kinemetrics" target="_self">Where Can You Protest an Other Transaction Award? Insights from Kinemetrics</a>, and <a href="https://govcon.mofo.com/topics/gao-sharpening-its-blade-strategies-on-ota-review" target="_self">GAO Sharpening Its Blade [Strategies] on OTA Review</a>, for a few). One rule that seemed clearcut (until recently) was that GAO will not hear post-award bid protests challenging the outcome of an OT competition. After all, GAO’s Bid Protest Regulations say as much outright, at 4 C.F.R. § 21.5(m): “GAO generally does not review protests of awards, or solicitations for awards, of agreements other than procurement contracts,” with some exceptions not relevant to OTs.<a href="#_ftn2" target="_self">[2]</a>Then, last week, GAO issued its decision in <a href="https://www.gao.gov/assets/870/868647.pdf" target="_blank">ARiA, B-422365 et al. (May 28, 2024)</a>, finding the Office has jurisdiction over protests challenging the award of non-procurement instruments – like OTs – if the awards are “necessary to identify the only entities eligible to submit a proposal” for a future procurement contract. Under the rule set out in ARiA, where a competitive award does not independently fall within GAO’s jurisdiction but operates “similar to a down-select or competitive range process” eliminating offerors from consideration through “successive rounds [that] ultimately may result in a [procurement] contract award,” the award decision is subject to GAO’s bid protest review. There are a couple caveats. For one, the award at issue in ARiA was a cash prize<a href="#_ftn3" target="_self">[3]</a> rather than an OT. However, GAO’s decision is not based on the nature of the intermediate award, but instead hinges on that award’s operation to limit the competitive field for a larger competition that “ultimately may result” in a procurement contract. It is common nowadays for OTs to serve a similar “down-select” role, especially under DoD’s specific authority to award OTs for prototyping projects and issue follow-on production contracts.<a href="#_ftn4" target="_self">[4]</a> Using that authority as part of a multi-phase procurement strategy, DoD will competitively award OTs to multiple offerors to develop prototypes that are then tested and competitively evaluated in one or more down-selects until the last one standing is awarded a procurement contract for production.Compare this to the multi-phase procurement in ARiA. In the first round, the Army received 133 concept white papers for its xTechScalabe Artificial Intelligence (AI) competition and selected eight cash prize winners to receive $10,000 each and advance to the second round. From those eight, the Army would select four to receive an additional cash prize and advance to a third and final round, where a “separate announcement” would invite them to submit proposals for a procurement contract of up to $2 million each. According to GAO, one cannot isolate only the prize competition at issue when considering jurisdiction, as that would wrongly “view the first round in a vacuum, separate from the entire procurement contemplated by the competition announcement.” Carrying this analogy forward, is the award of a set of prototype OTs that will establish the competitive range for a future production contract any less a part of “the entire procurement” contemplated by the agency?A second caveat: the procurement contract contemplated in ARiA is a Small Business Innovation Research (SBIR) “direct to phase II” contract award. In a footnote, GAO discusses the “intricacies of the SBIR program” and the Small Business Administration’s view that the prize competition announcement could “only be properly read as one whole procurement,” lest the Army have violated statutory prohibitions on using invitations, pre-screening, or pre-selection to determine eligibility for phase II awards. One might argue that this discussion limits GAO’s decision to its facts, and other multiple-award down-select competitions should not be viewed as so intertwined into “one whole procurement.” But that is not what GAO says; GAO raises the point only in a footnote declining to say whether the competition announcement complied with applicable SBIR laws, not to justify its holding. Such an argument also overlooks the Army’s intent to issue a separate solicitation for the phase II contract, which GAO held was not sufficient to segregate the cash prizes from the remainder of the procurement process. Many OTs will not contemplate even a separate solicitation for final down-select to production (although some do). Moreover, at least in the case of many DoD prototype OTs, the ultimate procurement contract and initial prototype OT are similarly linked by statute, such that the authority for the procurement award depends inextricably on award of the prototype OT.<a href="#_ftn5" target="_self">[5]</a>All told, GAO’s decision in ARiA appears to support a revised rule: GAO will not review post-award protests challenging outcome of an OT competition (or other non-procurement instrument) unless that outcome limits the competitive range of offerors eligible for award of a subsequent procurement contract.<a href="#_ftn6" target="_self">[6]</a>This mirrors a similar forum-selection rule that appears to be developing in the federal courts, although there are only a small handful of cases to date and no binding precedent. The cases appear to be coalescing around a framework whereby the Court of Federal Claims – the forum specifically designed to hear federal bid protests (among other things) – has exclusive jurisdiction over OT bid protests only where the agency contemplates follow-on procurement contracts with limited competition. On the other hand, only federal district courts of general jurisdiction will review challenges to OTs with no direct connection to a future procurement contract. See <a href="https://govcon.mofo.com/topics/another-piece-to-the-puzzle-court-of-federal-claims-has-jurisdiction-over-bid-protest-where-the-disputed-other-transaction-could-lead-to-a-follow-on-production-contract?_gl=1*re7ds*_ga*MTkyMTA2Mzg1OC4xNzE3MDEzODc5*_ga_3HVRG7GH76*MTcxNzUxNjI3OS40LjEuMTcxNzUxNjMwNC4wLjAuMA.." target="_self">Another Piece to the Puzzle: Court of Federal Claims Has Jurisdiction over Bid Protest Where the Disputed Other Transaction Could Lead to a Follow-on Production Contract</a> and <a href="https://govcon.mofo.com/topics/where-can-you-protest-an-other-transaction-award-insights-from-kinemetrics" target="_self">Where Can You Protest an Other Transaction Award? Insights from Kinemetrics</a> for more discussion of the relevant decisions.Much more to come, no doubt, as GAO and the courts face a rising tide of OT bid protests. None of the decisions or opinions to date are precedentially binding on any individual GAO attorney or judge at the Court of Federal Claims, making any attempt to state a clearcut or definite rule a risky endeavor. One need look no further than GAO’s decision in ARiA for evidence of that.  <a href="#_ftnref1" target="_self">[1]</a> See 10 U.S.C. § 4022.<a href="#_ftnref2" target="_self">[2]</a> GAO will review – and has reviewed – protests alleging an agency is improperly using a non-procurement instrument (e.g., an OT) to procure goods or services. 4 C.F.R. § 21.5(m); see, e.g., Rocketplane Kistler, B-310741, Jan. 28, 2008, 2008 CPD ¶ 22. It also will review protests challenging DoD’s award of an OT beyond its statutory authority. See Oracle Am., Inc., B-416061, May 31, 2018, 2018 CPD ¶ 180. <a href="#_ftnref3" target="_self">[3]</a> Pursuant to a prize challenge under the authority of 10 U.S.C. § 4025.<a href="#_ftnref4" target="_self">[4]</a> See 10 U.S.C. § 4022(f). <a href="#_ftnref5" target="_self">[5]</a> See 10 U.S.C. § 4022(f)(2).<a href="#_ftnref6" target="_self">[6]</a> Query whether this general rule may apply in the specific case of a competitive range of one, i.e., to give GAO jurisdiction over any single-award prototype OT that establishes eligibility for award of a future procurement contract, as is expressly contemplated in most DoD prototype OTs and, in any case, is true as a matter of law. See 10 U.S.C. § 4022(f)(2).

Has the GAO Opened the Door to Certain Other Transaction (OT) Bid Protests?

More

The Tortured Regulations Department: SBA’s New Rule and Its Effect on Investments

Bid Protest Spotlight: Standing, Relationships, Responsibility

House’s Passage of the SAMOSA Act Signals Policy Shift Towards Government-Wide Enterprise Software Licensing

New DFARS Regulation on Small Business Affiliate Past Performance

Bid Protest Spotlight: Unclear Criteria, Data Rights, Conflicts

LinkedIN