Other Transaction Authority | The Contracting Education Academy

November 7, 2018 By cs

DoD says ‘OTA,’ industry says ‘Oy’

Just because apocryphal books live outside the Bible doesn’t mean you should never read them. And just because certain buying authorities live outside the Federal Acquisition Regulation doesn’t mean you shouldn’t use them.

The FAR covers a lot, but not everything, including, say Other Transaction Authority (OTA). OTA spending by the Defense Department is growing by triple digit rates, although it’s still a relatively small number. But it worries contractors. It came up repeatedly at this week’s Professional Services Council Vision 2018 conference. Kevin Fahey, the assistant secretary of Defense for acquisition, reassured the mostly vendor audience that “OTA use is not a get-out-acquisition-free pass.”

OTA has a little sister spawned by Section 804 of the 2016 Defense authorization bill. It gives DoD temporary authority to buy rapid prototyping and rapid fielding technologies — rapid, in the latter case, means within five years. The authority expires next September.

So for certain acquisitions, DoD has a lot of leeway to not use the FAR. Not total leeway, though — the government can’t just buy anything using the perceived convenience of OTA. The instrument is intended for prototype technologies and capabilities from non-traditional companies. For sure, those definitions leave a lot of leeway.

Keep reading this article at: https://federalnewsnetwork.com/tom-temin-commentary/2018/10/dod-says-ota-industry-says-oy/

October 16, 2018 By cs

GAO sharpening its blade on OTA review

The Government Accountability Office’s (GAO) recent decision in Blade Strategies, LLC, B-416752, 2018 WL 4584111 (Comp. Gen. Sept. 24, 2018), clarifies the GAO’s jurisdiction and standard of review for protests of other transaction agreements (OTAs), and also serves as a good reminder that all protests challenging an aspect of an agency’s solicitation — including the agency’s choice of an OTA over a procurement contract — must be filed prior to the time for receipt of initial proposals.

Generally, the GAO’s bid protest jurisdiction does not extend to the review of awards made under an agency’s “other transaction” authority; however, the GAO will review a timely protest that an agency is improperly using an OTA rather than a procurement contract. See 4 C.F.R. § 21.5(m).

As we have discussed on this blog, the GAO’s standard of review for this question seemingly has evolved over time. Traditionally, the GAO would evaluate whether an agency was attempting to “acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government,” in which case a procurement contract would be required in accordance with the Federal Grants and Cooperative Agreements Act (FGCAA). See Rocketplane Kistler, B-310741, Jan. 28, 2008, 2008 CPD P 22.

This was necessary “to ensure that an agency [was] not attempting to avoid the requirements of procurement statutes and regulations” by exploiting its other transaction authority. Id.

However, in two recent decisions, MorphoTrust and Oracle, the GAO disregarded whether the OTA was designed to purchase goods or services for the Government’s direct benefit or use, and instead looked only to “whether the agency’s use of its discretionary authority was proper, i.e., knowing and authorized.” Oracle America, Inc., B-416061, May 31, 2018, 2018 CPD P 180; MorphoTrust USA, LLC, B-412711, May 16, 2016, 2016 CPD P 133 (holding that “although the FGCAA provides applicable guidance to all federal agencies when the choices are limited to (1) procurement contracts, (2) grants, or (3) cooperative agreements, it provides no guidance when determining when an agency may properly use its other transaction authority”).

The difference between these standards is stark: one prevents an agency from issuing an OTA where it should issue a procurement contract instead, while the other simply looks to whether Congress has bestowed an agency with sufficiently broad other transaction authority.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=742996

August 30, 2018 By cs

OTAs: Preserving the authority

Other Transaction Authorities are the latest buzzwords in federal contracting, and for good reason.

OTAs have become critical to rapid prototyping in the defense realm, in some cases cutting off years from the time warfighters wait for new systems and capabilities.

OTAs are a business tool that let the government buy products and services using means other than those governed by the Federal Acquisition Regulations. These authorities, initially conceived by NASA in the 1950s and later expanded to the Defense Department in 1994, have recently surged in use and popularity — and praise. However, they also elicit a fair amount of criticism and debate about their future.

Fairness during the award process, soundness of proposals and lack of public information throughout the course of the award are among issues detractors highlight on OTAs. If their supporters want to preserve this acquisition instrument, they must address these concerns.

They’re not small concerns.

Keep reading this article at: https://washingtontechnology.com/articles/2018/08/03/insights-hawk-carlisle-ota.aspx

August 10, 2018 By cs

Death knell for using LPTA for services and other acquisition highlights in the NDAA

Every year the Defense Authorization bill is filled with golden nuggets of little noticed provisions that make a big impact on the federal acquisition community.

This year they range from a strong focus on making it easier for agencies to buy commercial items to mixed messages around the use of other transaction agreements to the ever increasing concerns about too many bid protests.

This is, by far, not a comprehensive list, but several that most federal and contractor employees interested in acquisition should know about.

The House passed the NDAA on July 26. The Senate is expected to take up the bill next week. House and Senate conferees agreed to the bill on July 23, clearing the way to passage.

Keep reading this article at: https://federalnewsradio.com/reporters-notebook-jason-miller/2018/07/the-death-knell-for-using-lpta-for-services-and-other-acquisition-highlights-in-the-ndaa/

August 6, 2018 By cs

Acquisition professionals place little importance on innovation, survey finds

The federal government’s procurement professionals are bullish about improvements to federal acquisition, according to a recently released survey, but it definitely isn’t because they’re high on innovation.

Rather, the ninth biennial Acquisition Policy Survey, compiled by the Professional Services Council and Grant Thornton Public Sector, found recurring challenges such as budget instability, hiring difficulties and onerous regulatory burdens were offset by improvements to the human quotient of the acquisition workforce.

The government sought to hire up acquisition professionals in recent years, and that talent is now more seasoned, skilled and “a little more experienced,” according to PSC Executive Vice President and Counsel Alan Chvotkin.

“Some optimism comes from having a better understanding of their job,” Chvotkin told reporters Wednesday.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2018/07/acquisition-professionals-place-little-importance-innovation-survey-finds/149879/

Just because apocryphal books live outside the Bible doesn’t mean you should never read them. And just because certain buying authorities live outside the Federal Acquisition Regulation doesn’t mean you shouldn’t use them.

Other Transaction Authorities are the latest buzzwords in federal contracting, and for good reason.

Every year the Defense Authorization bill is filled with golden nuggets of little noticed provisions that make a big impact on the federal acquisition community.

The federal government’s procurement professionals are bullish about improvements to federal acquisition, according to a recently released survey, but it definitely isn’t because they’re high on innovation.

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