Where Can You Protest an Other Transaction Award? Insights from Kinemetrics

Morrison & Foerster – As federal agencies, and the Department of Defense in particular, increasingly allocate greater amounts of their annual budgets to nontraditional contracting arrangements generally known as other transactions (“OTs”) or other transaction agreements (“OTAs”), a common question continues to come up: “We just lost a significant OTA competition; can we file a bid protest?” The answer to this question is far from settled, and opinions vary within both industry and the government. But a few federal courts have taken on the task, and the early answer, in short, is yes. In fact, the better question is not if it can be done, but where.