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Even for Fraud Allegations, GAO Has No Jurisdicton Over Protest of Other Transaction Authority Procurements

Writer's picture: R.D. Lieberman,ConsultantR.D. Lieberman,Consultant

The Government Accountability Office (“GAO”) recently dismissed a protest involving an Other Transaction Authority (“OTA”) procurement by the National Aeronautics and Space Administration (“NASA”).  Lunar Resources, Inc. B-421936, Nov. 13, 2003.  In this protest, Lunar Resources, Inc. (“LRI”) protested that Blue Origin, LLC was not entitled to award of a partnership proposal because it made fraudulent representations in its proposal.


The National Aeronautics and Space Act of 1958, 51 U.S.C. § 20113(e), authorizes NASA “to enter into and perform such contracts, leases, cooperative agreements or other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate.”  (The Department of Defense also has OTA authority, found in 10 U.S.C. §2371).  This procurement sought proposals for lunar service infrastructure and in-space infrastructure.  However, the agreements awarded here were made pursuant to NASA’s OTA, and were not a competition subject to protest under the Federal Acquisition Regulation (“FAR”).


Under the Competition in Contracting Act of 1984 (“CICA”), the GAO may review alleged violations of procurement statutes and regulations by federal agencies in the award or proposed award of contracts for the procurement of goods and services, and solicitations leading to such award.  31 U.S.C. §§ 3551(1), 3552; 4 CFR §21.1(a). Where agencies have authority to enter into contracts or other transactions, contracts and agreements issued by these agencies under OTAs are not procurement contracts.  GAO generally will not review protests or awards in such cases.  The only exception to this general rule is that a timely pre-award protest alleging that the agency is improperly exercising its OTA to avoid using a procurement (FAR-based) contract, but should be acquired using a FAR-based contract.


The GAO dismissed LRI’s protest because it did not have jurisdiction to consider the allegation, specifically the allegation of fraudulent representations.


Takeaway.  Unless you meet the exception noted above, taking a protest of an OTA solicitation or award to the GAO will result in its dismissal. 

 

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.

 

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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