As I mentioned in a recent post, the Department of Defense (DoD) is using its “other transaction” authority with increased frequency to attract non-traditional defense contractors and to capitalize on the cutting-edge technological advancements found in the commercial marketplace. Other Transaction Agreements (OTAs) are not procurement contracts, grants, or cooperative agreements and, as such, many procurement laws and regulations do not apply, including the Competition in Contracting Act (CICA) and the Federal Acquisition Regulation (FAR). Continue Reading Bid Protests: Are Other Transaction Agreements (OTAs) Really Bulletproof?
Under the federal Competition in Contracting Act, an automatic stay of a federal procurement goes into effect if an unsuccessful bidder files a bid protest with the GAO either within ten days after a contract award is made or within five days of an agency debriefing to the bidder, whichever is later. During the stay, “the contracting officer may not authorize performance of the contract to begin while the protest is pending.” Nonetheless, the agency may override the automatic stay under certain conditions:
The head of the procuring activity may authorize the performance of the contract (notwithstanding a protest of which the Federal agency has notice under this section) –
(i) upon a written finding that –
(I) performance of the contract is in the best interests of the United States; or
(II) urgent and compelling circumstancesthat significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General concerning the protest; and (ii) after the Comptroller General is notified of that finding. 31 U.S.C. § 3553(d)(3)(C).
Proesters offen fear that an agency will seek to override the automatic stay because of national security or other exigent circumstances, but an override rarely occurs because of the need to obtain higher authority approval. (The Army Acuisition Corps actually published a manual in 2004 entitled the "The Competition in Contracting Act Automatic Stay Override Guide.") Recently, in a case decided by the United States Court of Federal Claims, Superior Helicopter LLC and Ranier Heli-Lift, Inc. v. United States, three unsuccessful bidders protested a solicitation issued by the Forest Service (the “Service”), a component of the United States Department of Agriculture, for exclusive-use contracts for helicopter services to support firefighting efforts. The three unsuccessful bidders for awards – Superior Helicopter LLC (“Superior”), Ranier Heli-Lift, Inc. (“Ranier”), and Erickson Air-Crane, Inc. (“Erickson”) – filed bid protests with the Government Accountability Office (“GAO”), triggering an automatic stay under the Competition in Contracting Act, 31 U.S.C. §§ 3551-56, of the contracts awarded in the procurement. After the Forest Service acted on July 9, 2007 under 31 U.S.C. § 3553(d)(3)(C) to override the stay based on findings of exigent circumstances and the best interests of the government, the three helicopter operators filed suit in the United States Court of Federal Claims on July 11, 2007, seeking a temporary restraining order, a declaratory judgment, and preliminary and permanent injunctive relief from the Forest Service’s decision to override the stay.
The Court found that the Forest Service’s assertion that exclusive-use contracts were needed to face the significant risks posed by the 2007 fire season was misleading. No one doubted that the risks of fire this season were significant, but exclusive-use contracts would not have added more resources to combat that risk. The Forest Service’s overarching justification as to why the override was in the “best interests” of the United States and based on “urgent and compelling circumstances” was that the exclusive-use contracts were better than the CWN contracts at guaranteeing helicopter availability. But, the Service provided no data showing that more resources would be made available than were otherwise at the Federal Service’s disposal under the pre-existing exclusive-use contracts and the CWN contracts upon which the Forest Service had previously relied in the immediately prior firefighting seasons.