The Court of Federal Claims (COFC) recently found that it lacked jurisdiction to hear a protest filed by SpaceX against the Air Force National Security Space Launch Program (NSSLP). You can read a summary of the details prepared by the Army Contracting Command's November 2019 newsletter, "Hot Off the Press": https://www.dau.edu/cop/ot/_layouts/15/WopiFrame.aspx?sourcedoc=/cop/ot/DAU%20Sponsored%20Documents/Final_HOTOFFTHEPRESSNov2019%20(003).pdf&action=default
The COFC determined that SpaceX's challenge to the AF's Launch Services Agreement Procurement (LSAP) evaluation and award decisions are not "in connection with a procurement or proposed procurement" as required by the Tucker Act. This decision was primarily based on the fact that the anticipated follow-on described in the solicitation will be a standalone, full and open FAR-based procurement. However, although the AF is not acquiring the prototypes being developed under the OT, the selected vendors will be permitted to use the developed prototypes in the follow-on FAR procurement. From SpaceX's perspective, the Launch Services Agreement (LSA) awards were merely one step in a multi-stage procurement process to procure space launch services. The case is now before the U.S. District Court.
What does this COFC decision mean for the OT community? Not much. A footnote to the determination states: "The Court did not reach the issue of whether other transactions generally fall beyond the Court's bid protest jurisdiction under the Tucker Act." This was one judge assessing one set of facts. The next OT protest to the COFC may have a similar fact pattern and be heard.
However, should the COFC take similar positions regarding other OT protests, the OT community can anticipate vendors looking to Congress to put bounds on how we can use OT authority. We need to be proactive with measures of transparency and fairness in our dealings with vendors to defend against such legislative strictures. Agreement Officers must keep in mind when drafting an OT acquisition approach that the Government has the same responsibility to be an honest broker regardless of whether pursuing a FAR-based or OT procurement approach.
CLC066, Other Transacations, replaces the former CLC035, Other Transaction Authority for Prototype Projects: Comprehensive. The new course not only describes Other Transactions (OTs) for Prototype and how to use them; it also discusses OTs for Research. CLC066 is written as a companion to the OT Guide, mirroring the topics therein.
To read more about CLC066, go to the DAU iCatalog here.
Welcome to DAU's new Other Transactions Community of Practice—OT CoP for short! We are pleased to be able to provide the entire OT Team – Agreements Officers, Program Managers, Legal Counsel, Financial Managers, Requirements Generators, Administrators, etc.—a one-stop shop where you can find the statutes, guidance, and best practices for awarding OTs. You can also ask questions and share the knowledge you've gained as you make awards using the OT authorities.
The OT CoP focuses on the three types of OTs—OTs for Research, OTs for Prototype, and OTs for Production, providing reference material, articles, and sample documents for OTs, while busting some of the myths associated with their use. The CoP also is a clearinghouse for information on other novel acquisition methods available to the research and development (R&D) community, including the Experimental Authority at 10 U.S.C. 2373 and Middle Tier. On the OT CoP you will find the schedule of upcoming OT classes, workshops, and simulations. You will also find a place to share your ideas about OTs.
This is your community. Please pose your questions and post your lessons learned. Use your experience and knowledge to help others as they get outside the comfort zone of the Federal Acquisition Regulation (FAR) into the unfamiliar world of truly full and open negotiation. There are no mandatory clauses and no safety net—just you and the performer negotiating mutually beneficial terms and conditions to ensure that DoD is getting access to the cutting edge, world class R&D we need to support the warfighter.
Take a tour around the CoP and bookmark it. OTs are evolving, and the CoP will, too, as we post new articles and insights. We are also looking forward to what you will share with us. We anticipate the OT CoP growing into the premier site for learning and sharing ideas about OTs. Thanks for helping us achieve our goal!