Counsel Commentary: The OTA Protest Jurisdiction Divide

Over the past decade, the Department of Defense (DOD) has significantly increased the use of other transaction agreements (OTAs), and this trend is likely to continue under the Trump Administration. 

Despite this increase in use, it is still unclear which venue has jurisdiction over OTA protests.  Two cases from earlier in the year, Raytheon Co v. United States and Telesto Group, LLC v. United States, revealed a split jurisdictional opinion, underscoring the urgent need for the U.S. Court of Appeals for the Federal Circuit or Congress to provide clarity on where contractors can file bid protests involving OTAs. 

In his monthly Contract Management Magazine column, “The OTA Protest Jurisdiction Divide,” Rogers Joseph O’Donnell shareholder Stephen L. Bacon analyzes Raytheon Co v. United States and Telesto Group, LLC v. United States and discusses the options available to government contractors and agencies when navigating OTA bid protests. 

“There is no dispute that OTAs are subject to judicial review,” Bacon writes. “The only question is where such challenges must be filed: COFC or federal district court. The split between Raytheon and Telesto creates precisely the type of forum uncertainty that Congress sought to eliminate when it terminated federal district court jurisdiction over bid protests in 2001.”

The piece appears in the magazine’s August issue (subscription required) and is the latest entry in Bacon’s monthly Counsel Commentary column. It is published by the National Contract Management Association and was used with permission.

Read Bacon’s latest Contract Management article here.