Public Contract Law Journal

Jurisdiction over Federal Procurement Disputes: The Puzzle of Other Transaction Agreements

by Nikole R. Snyder

Nikole R. Snyder is a GMU School of Law, JD, 2019.

I. Introduction

Assume you are the CEO of a small biotech company. In the routine course of business, your company enters into contracts with other companies. However, you are reluctant to contract with the federal government due to what you perceive are burdensome laws and regulations governing federal procurement. But what if you could have a contract with the federal government that was not subject to most of these laws and regulations? Congress created authority for certain federal entities to use Other Transaction (OT) agreements for this purpose. OTs resemble commercial contracts, permitting the federal government and the contractor to define their relationship through flexible negotiation, without the usual constraints imposed by traditional procurement contracts.1 However, because OTs are exempt from most federal procurement laws and regulations, there is no guidance for what happens if a dispute arises under the OT agreement.

To resolve a contract dispute with another company, the plaintiff would simply choose the proper judicial venue and file a civil lawsuit. The federal government, however, cannot be sued in the same manner as a company. The doctrine of sovereign immunity shields the government from suit unless Congress has expressly abrogated that immunity.2 For example, the Contract Disputes Act (CDA), provides a waiver of sovereign immunity that enables contractors to sue the government for procurement contract disputes.3  However, the CDA (along with many other statutes) does not apply to OTs.4 Additionally, under the current OT statute, there is no evident means for judicial redress of OT disputes.Therefore, it appears that due to the lack of express congressional abrogation of sovereign immunity, the federal government cannot be sued for OT disputes. This is in sharp contrast to traditional procurement contracts where several statutes operate as waivers of immunity.6

By design, OTs are excused from nearly all statutory and regulatory provisions that apply to traditional federal contracting. This increases flexibility and makes working with the federal government more attractive to non- traditional contractors.7 An unintended consequence of this flexibility, how- ever, may be that OTs create an agreement under which the OT contractor cannot sue the federal government.8

To explore this issue, this article analyzes sovereign immunity in view of 10 U.S.C. § 2371b, commonly referred to as the OT statute.Additionally, this article outlines the types of dispute resolution mechanisms that may be available to parties who enter into OTs with the federal government, and recommends how to improve those mechanisms.

Part II describes the OT statute background, specifically focusing on its legislative history, legislative expansion over time, and applicable statutory exemptions. This part also introduces the concept of sovereign immunity, and will discuss other categories of federal procurements that have congressional waivers of immunity that authorize lawsuits against the federal government. Part III will bifurcate the discussion between pre-award and post-award disputes, which represent two major areas of litigation in federal procurement disputes. This part will analyze the specific statutory exemptions, prescribed judicial forums, and applicability of the Tucker Act10 and other federal jurisdictional statutes, concluding that, by inference, the federal government is not immune from suit arising from OTs.  Finally, Part IV outlines several ways that Congress could clarify the limits of the federal government’s immunity from lawsuits under OTs without compromising the inherent flexibility of these types of agreements.

II. Background - OT Authority & the Government's Immunity from Suit

In 1994, Congress authorized the Defense Advanced Research Projects Agency (DARPA) to use OTs for weapons or weapons system prototype projects.11 Because these transactions were not contracts, they were exempt from many of the federal contracting regulations that industry perceived as burdensome and that deterred some companies from doing business with the federal government. OTs soon gained recognition as a flexible contracting tool that could help attract innovative contracting partners for the government.12 Over the next few decades, Congress expanded OT authority, both within the Department of Defense (DoD) and for other federal agencies. The OT statute, as codified currently at 10 U.S.C. § 2371b, broadly authorized the DoD to enter into OTs for prototype projects. This section reviews the legislative history of OTs, the resultant expansion of OT authority, and inapplicable statutes to OTs. This section concludes by discussing OT disputes in the doctrine of sovereign immunity context.

A.  OT Agreements as a Solution to Burdensome Federal Contracting

Generally, when the U.S. government wants to buy or transfer something (be it property, services, research, etc.) it uses a procurement instrument that reflects the relationship between the government and the recipient—typically, a procurement contract, grant, or cooperative agreement.13 However, some companies hesitate to contract with the federal government due to regulations and administrative requirements that the company perceives as burdensome or costly.14

Interestingly, the government does not actually need any specific contracting statutes or regulations to enter into contracts.15 A Supreme Court decision in 1831 validated this idea: as long as there is an agency mission and congressional appropriation, the United States and its departments have inherent authority to contract.16 Despite this, a common complaint about the government’s traditional acquisition system is that it costs too much, and takes too long.17 The current federal procurement system is rooted in the time period between 1940 and 1970, when the government developed a “mass and maze” of procurement regulations.18 Since then, attempts to improve this system mostly resulted in more statutes, regulations, and agency supplements to govern federal procurements.19 James Nagle, a commentator well-versed in government contracts, compares federal procurements to “a mine-studded labyrinth bewildering and dangerous to government and contractors alike.”20 With this in mind, it is no wonder that companies unfamiliar with federal contracting may be reluctant to work with the government.21

DoD procurement contracts are governed by an array of statutes, which are implemented by the Federal Acquisition Regulation (FAR) and supplemental DOD procurement regulations. These laws and regulations have beneficial impacts, including that they allow for consistency and certainty in contracting, provide cost accounting standards and audit provisions that help ensure taxpayer money is being used properly, and allow for transparency and accountability.22

However, many regulatory requirements are extremely costly and burdensome, especially for small companies or those that do not traditionally work with the government.23 Some of the most burdensome and often cited issues are the requirement to set up a separate accounting system, the sharing of intellectual property, potential contractor liability (particularly under the False Claims Act), and overall rigidity.24 These requirements also can add to the time and cost to procure major systems for the government.

Another problem is that these regulatory requirements act as a barrier for the government to remain competitive in obtaining cutting-edge research and technology.25 Congress established OTs as a response to these problems. OTs are meant to make the government more competitive in research and development (R&D) projects by attracting non-traditional companies and small businesses to work with the government.26 By exempting OTs from virtually all procurement laws and regulations, Congress intended that federal procurements could be conducted more rapidly, cheaply, and would encourage commercial partners to engage in dual-use projects.27

While there is no statutory or regulatory definition of an “other transaction,” the term is usually defined in the negative: OTs are transactions “other than contracts, cooperative agreements, or grants.”28 As a result, OTs generally are exempt from the statutes and regulations pertaining to contracts, grants, and cooperative agreements. Whereas current procurement regulations limit the contracting officer’s discretion, OTs return discretion to the contracting officer.29 With few regulations limiting their judgment, the parties can adapt the OT agreement to individual circumstances. In this way, although OTs are not procurement contracts, they more closely resemble “true contracts” in that they are based on the parties’ mutual agreement.30

1.   Legislative History/ Expansion of Authority

Not all federal agencies have OT authority; Congress must give an express grant of authority for an agency to use them.31 Currently, only six federal departments, and five agencies within those departments, have been granted statutory authority to use OTs.32 The federal entities that have explicit authorization to use OTs are the National Aeronautics and Space Administration (NASA), DoD, DARPA, Federal Aviation Administration (FAA), Department of Transportation (DOT), Transportation Security Administration (TSA), Department of Homeland Security (DHS), Department of Health and Human Services (HHS), National Institutes of Health (NIH), and Department of Energy (DOE). 33

Although OTs are a relatively new practice area for many federal agencies, OT authority can be traced to NASA’s 1958 Space Act that included authorization for 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. . . .”34 DoD policymakers eventually became interested in using similar “innovative contractual agreements” to resolve DoD’s need for advanced technologies.35

Within DoD, DARPA led efforts to petition Congress for authorization to use more flexible procurement tools that could be used to attract new, cutting-edge partners from private industry.36 DARPA’s main concern was that the agency was missing out on some of the most promising new technologies because it was unable to partner with certain companies.37 For example, many promising tech start-up companies were small and could not (or were unwilling to) do business with the federal government due to burdensome federal regulations.38

The National Defense Authorization Act (NDAA) for Fiscal Years (FY) 1990 and 1991 created OT authority for DARPA  in the form of a two- year pilot program, specifically for research projects.39 OT authority slowly expanded over the next several decades, including creating prototype project OT authority for defense agencies, military departments, and “any other official designated by [the Secretary of Defense].”40 Additionally, Congress expanded the definition of prototype projects,41 added a cost-sharing requirement for traditional contractors,42 authorized non-competitive follow-on production for successful OTs,43 and added requirements for higher level approval for high dollar value OTs.44 In 2016, Congress made OT authority permanent for DoD and codified the law as 10 U.S.C. § 2371b.45

Most recently, the NDAA for FY 2018 provided additional significant amendments to the OT statute.46 For example, it increased the dollar amounts for OT authority, expanded the definition of small businesses, and potentially allows third parties to participate in the cost-sharing requirement, whereas previously only parties to the transaction could share costs.47 Additionally, it added a section dedicated to education and training that directs the Secretary of Defense to ensure access to training and to establish minimum requirements for OTs and other innovative forms of contracting.48 Indeed, OT authority continues to expand, and the legislative amendments appear to focus on encouraging the use of OTs through broader applications and increased training and education.

2.  Statutory Exemptions

OTs are not procurement contracts, and as such, most of the statutes and regulations that apply to procurement contracts do not apply to OTs.49 However, “determining which procurement statutes do not apply to [OTs] is a lengthy, involved process.”50

Two separately published documents list procurement contract-related statutes that do not apply to OTs. The first list was published in an article in 2000 by an ad hoc working group affiliated with the American Bar Association’s Section of Public Contract Law. The article, which is specific to DoD OTs, concludes that twenty of the thirty statutes or statutory provisions analyzed do not apply to OTs.51

In 2002, DoD published an OT Guide for Prototype Projects that provides a framework for practitioners to consider and apply when using OT authority “for prototype projects directly relevant to weapons or weapon systems proposed to be acquired or developed by the Department.”52 The 2002 OT Guide included an appendix listing statutes that typically apply to procurement contracts, but that are not necessarily applicable for OTs for prototype projects.53 The guidance points out that this list is not exhaustive.54 However, it is also important to note that the OT Guide provides just that — guidance. It is not binding law or regulation. Furthermore, the updated DoD OT Guide, published in 2017, excludes the list of inapplicable statutes.55

OTs are exempt from certain statutes if the statute is specifically applicable to a particular type of instrument (e.g., contract or grant).56 Because an OT is not a contract, grant, or cooperative agreement, the statutes, by definition, would not apply to an OT. However, as the DoD OT Guide points out, because OTs are flexible tools, it is important to look at each statute to ensure “it does or does not apply to a particular funding arrangement using an OT.”57 The updated 2017 Guide also cautions that “[u]se of OT authority does not eliminate the applicability of all laws and regulations.”58

B.  Federal Sovereign Immunity

The doctrine of sovereign immunity is the first barrier to any suit against the federal government.59 Federal sovereign immunity premises that the U.S. government is immune from suit without its express permission.60 This express permission must come in the form of a statutory waiver; a waiver that is strictly observed and narrowly construed in favor of the federal government.61

The idea of sovereign immunity is firmly grounded in case law.62 For instance, in Schillinger v. United States,63 the Court recognized the doctrine of sovereign immunity by finding that “the United States cannot be sued in their courts without their consent, and in granting such consent Congress has an absolute discretion. . . .”64 Sovereign immunity also is historically supported in English law, in the writings of prominent members of the founding generation, and in the Constitution.65 Even with its judicial and historical foundation, the doctrine of sovereign immunity is widely unpopular.66 Nevertheless, Supreme Court opinions have upheld sovereign immunity, demonstrating, as one commentator observed, that the “doctrine [of sovereign immunity] is unquestionably alive and well today.”67

In 1887, the Tucker Act served as the first significant congressional waiver of sovereign immunity.68 The Tucker Act created the Court of Claims (now called the United States Court of Federal Claims (COFC)), and for disputes involving government contractors, authorized the COFC “to hear claims against the United States founded upon federal statutes, regulations, and contracts.”69

Currently, for procurement contract disputes, several statutes act as waivers of sovereign immunity — specifically, the Tucker Act, the Little Tucker Act, the CDA, and the Competition in Contracting Act of 1984 (CICA). None of these statutes, however, mention OTs, nor do they specifically waive sovereign immunity for OTs.70 Therefore, for a party attempting to bring suit against the federal government under an OT, sovereign immunity is the first jurisdictional barrier to overcome. Because OTs are not procurement contracts, the preliminary inquiry to identify the proper forum is whether any of these statutes provide the necessary waiver of sovereign immunity.

III.  Analysis — Potential OT Suits & Jurisdiction

Given that a natural consequence of any agreement is the potential for disagreement, it is surprising that no congressional guidance on OT disputes between the federal government and a private party exists. In the field of government contracting, however, there is a sizeable body of procedure — both statutory and regulatory — governing contract disputes.71 Government contract disputes are quite common. For instance, in 2017 there were 2,596 pre-award protests filed at the Government Accountability Office (GAO).72 Additionally, there were 120 bid protests and 156 contract claims filed at the COFC in 2016.73

However, under an OT, it is unclear whether any of these forums are available to private parties for disputes against the federal government. Congress could have created jurisdiction for any (or all) of the forums for OTs, yet there are no jurisdictional provisions in the OT statute. Indeed, neither the OT statute nor its legislative history mention dispute resolution at all.74 There are no OT-specific jurisdictional provisions in the Tucker Act, CDA, or CICA.75 Accordingly, one could argue that OTs are necessarily exempt from these laws governing procurement contract disputes, and consequently, there is no waiver of sovereign immunity for OTs.

On the other hand, OTs were developed specifically in response to the burdensome and over-regulated government procurement process.76 With that in mind, perhaps it is unsurprising that there is a limited amount of procedure governing OTs, including dispute jurisdiction. Congress may purposely have provided no waiver of sovereign immunity for OT disputes.

However, the pervasive reach of the waiver of sovereign immunity for all other types of contract disputes cautions against jumping to this conclusion. As discussed above, without an express congressional waiver, the government retains its sovereign immunity.77 The argument that follows is that because there is no express statutory waiver of immunity for OTs, the government cannot be sued in an OT dispute.

Though this is a logical argument, it creates an apparently paradoxical result: Congress created a new way for the government to do business, specifically intended to attract non-traditional contractors, but that also appears to grant the government complete immunity from suit. Thus, the government could breach the terms of an OT without concern because the aggrieved contractor would have no avenue for judicial relief. If this is indeed the result that Congress intended, it would appear to undermine the equity of OTs, at least from the contractor’s perspective. The lack of any judicial avenue of relief to an aggrieved OT partner appears to put the risk of nonperformance squarely on the contractor. The government would bear a disproportionately low level of risk, particularly where the government breaches the agreement. Did Congress actually intend this paradoxical result?

This issue was brought up in passing during Congressional Research Service Analyst L. Elaine Halchin’s congressional testimony in 2008; she noted that

[f]reedom from federal procurement requirements is an overarching advantage of the use of OT authority, but, at the same time, problems associated with ‘other transactions’ may follow from this exemption. In the absence of certain statutes and regulations that apply to traditional procurements, agencies and companies that engage in OTs might face uncertainties, and increased risk, with regard to . . . dispute resolution . . .78

However, it does not appear that Ms. Halchin’s testimony persuaded Congress to take any corrective actions. The OT statute has not been amended to provide any judicial venue for dispute resolution, and no other jurisdictional statute has been amended specifically to include review of disagreements involving OTs.

Because there is no express legislative guidance, to clarify the potential avenues for judicial relief under OT disputes, this section first analyzes the potential litigation and forums available for traditional procurement contracts. Then, it examines whether these forums may also be available to potential litigants for OT disputes.

A.  Potential Litigation in Procurement Disputes: Pre-Award and Post-Award

Federal procurement disputes fall into two temporal categories: pre-award (bid protests)79 and post-award disputes. Companies proposing to a federal contract award can file a bid protest to “challenge to an alleged impropriety in a solicitation or other procurement error that prejudices the protester.”80 Post-award disputes (“claims”) appear to have a broader scope and include any claim founded upon an agreement with the United States.81 Whereas bid protests are initiated by an “interested party”82 to a federal procurement, post- award disputes can be brought either by the government or by the contractor.83 Specific statutes and regulations govern the filing of a protest against the government for a procurement contract. For example, the CICA governs the procurement protest system, and the CDA prescribes the procedures for contract disputes between a contractor and the government.84 The Tucker Act also provides jurisdiction to the COFC for both bid protests and contract claims.85 Additionally, the “Little” Tucker Act confers concurrent jurisdiction to the United States District Courts for contract claims that do not exceed $10,000.86

From a regulatory perspective, the regulations in 4 C.F.R. Part 21 govern bid protests and were promulgated to implement CICA.87 These bid protest regulations specify the GAO as the forum for protesting the award of federal contracts.88 The regulations also address filing a protest, timeliness requirements, remedies, decision times, and types of protest issues that will not be considered by the GAO.89

Additionally, the FAR provides a core set of “uniform policies and procedures for acquisition by all executive agencies.”90 FAR Part 33 covers “protests, disputes, and appeals.”91 This Part begins by outlining relevant definitions, for example “Interested party,” “Protest,” and “Protest venue.” FAR Subpart 33.1 provides guidelines and procedures for filing a protest in each of the protest venues including protests to the agency, protests to the GAO, and protests at the COFC.92 FAR Subpart 33.2 covers disputes and appeals.93

B.  Jurisdiction over OT Pre-Award and Post-Award Disputes

As previously discussed, neither the FAR nor the CDA apply to OTs.94 Further, there is no jurisdictional language in OT statute covering disputes, and the usual federal forums for procurement disputes have no language in their jurisdictional statutes that specifically grant jurisdiction to the courts to decide OT disputes. So, what is the proper forum in which to bring a bid protest or claim arising under an OT? The analysis in this section attempts to answer that question. To frame this discussion, the following table illustrates jurisdictional statutes for pre- and post-award OT disputes.

Table 1. Potential OT Dispute Forums

1.  Potential Jurisdiction over OT Bid Protests

An interested party (typically, a “disappointed offeror”) to a government contract can choose to file bid protests in three forums: the procuring agency, the GAO, or the COFC.98 Additionally, a contractor can sometimes receive protest-like relief from a board of contract appeals, such as the Armed Services Board of Contract Appeals (ASBCA).99 This section will discuss the potential forums for bid protests to a traditional procurement contract. Then, it will discuss whether any of these forums may be available for OT bid protests.

a.   Potential Agency-Level Jurisdiction over OT Bid Protests

In 1995, President Clinton issued Executive Order 12979, modeled after the Army Material Command Level Protest Program, directing all agencies to prescribe administrative procedures for the resolution of procurement protests as an alternative to outside forums.100 FAR Part 33 specifies the procuring agency as a protest venue and establishes procedures for agency-level protests.101 These procedures strive to expedite the protest process by allowing the protester to file an agency-level protest directly with the agency’s Contracting Officer (CO), or at some other level of independent consideration above the CO.102 However, there is little published data on the effectiveness of agency-level protests; perhaps because the agency would have at least some self-interest in deciding against the agency.103

However, because the FAR does not apply, unless the agency provides some procedures within the OT agreement related to agency-level protests, this forum is not available to a contractor that wants to dispute the terms of its OT with the procuring agency.

b.  Potential GAO Jurisdiction over OT Bid Protests

The GAO’s authority to decide bid protests derives from the CICA and is implemented by Bid Protest Regulations in 4 C.F.R. Part 21.104 However, non-procurement instruments such as OTs are not within GAO’s bid protest jurisdiction because a GAO protest must concern the award or proposed award of a procurement contract.105 The GAO’s interpretation of this requirement is that OTs are non-procurement instruments and are therefore not procurement contracts within its bid protest jurisdiction.106

In Exploration Partners,107 the GAO examined the statutory language granting NASA’s OT authority, and applying a “cardinal principle of statutory construction” that statutory language not be construed as mere surplusage, determined that because the statute used both the terms “procurement contract” and “other transactions,” the terms could not be the same.108 An OT is not a procurement contract, and the GAO’s bid protest jurisdiction does not include OTs.109

However, while GAO generally does not exercise jurisdiction over grants, cooperative agreements, and OTs, it will consider a claim that an agency improperly used a non-procurement instrument where a procurement contract was required.110 But, if the agency has express statutory authority to use OTs, the GAO will give discretion to the agency to decide whether the use of an OT is reasonable for a particular solicitation.111

In 2018, the GAO released its decision on Oracle America, Inc.112 This case drew quite a bit of attention in the acquisition policy world. The decision was criticized sharply by OT advocates, including one commentator who accused the GAO of “establishing newfound protest jurisdiction [that] will ensure that [Other Transactions Authority] will become more like the traditional contracting process through a death by a thousand cuts review process.”113 Interestingly, Kenneth Patton, the managing associate General Counsel of the GAO, responded directly with his own article, defending the GAO’s decision in Oracle America.114

The Oracle decision involved an OT with a total value of $8.9 million that Defense Innovation Unit (Experimental) (DIUx) awarded to REAN Cloud, LLC in May 2017.115 In February 2018, prior to successfully completing the amended OT, DIUx noncompetitively awarded a follow-on production contract to REAN.116 That follow-on contract had a ceiling of $950 million.117 Although Oracle America, Inc. (“Oracle”) did not submit a proposal to the original OT, it filed a GAO protest against the follow-on production contract.118 Oracle asserted that it would have submitted a proposal if it had known that DIUx planned to award a follow-on contract — particularly a follow-on contract worth nearly a billion dollars.119 Oracle’s main argument was that DIUx violated the statutory requirements for noncompetitively awarding OT follow-on production contracts.120

Relevant to this article, in the Oracle America decision, the GAO discussed its jurisdiction to hear a protest involving an OT.121 Relying mainly on a 2008 decision, Matter of: Rocketplane Kistler,122 and MorphoTrust USA, the GAO reaffirmed that it has limited “jurisdiction to review whether ‘the agency is improperly using [a] non-procurement instrument. . . .’”123 Although this is consistent with GAO’s past interpretation of its jurisdiction, the Oracle decision went further and demonstrates that the GAO will not hesitate to scrutinize whether an agency is improperly using its OT authority.124 The real concern is that, limited or not, the body is exercising jurisdiction over non- procurement instruments. This kind of jurisdiction creeping should be checked. As Bill Greenwalt points out in his critique of this decision, Congress has not granted GAO any role in overseeing OTs.125

Overall, under the statutory language that establishes GAO’s jurisdiction, and under GAO’s own interpretation of that jurisdiction, the GAO generally does not have authority to hear protests involving OTs. However, the recent Oracle America decision indicates that, until checked, the GAO may continue to gradually expand its jurisdiction over OTs.

c.  Potential COFO Jurisdiction over OT Bid Protests

Neither the Tucker Act (which grants jurisdiction to the COFC) nor the COFC itself has squarely addressed the COFC’s jurisdiction over OTs. Generally, the Tucker Act provides the COFC with jurisdiction over disputes of agreements involving the United States, including jurisdiction over express and implied contracts.126 However, the COFC’s bid protest jurisdiction is limited to procurement contracts, and therefore does not reach OTs.

Congress passed the Administrative Dispute Resolution Act (ADRA) in 1996 as an attempt to consolidate bid protest forums, prevent forum shopping, and to promote uniformity in government procurement law.127 Relevantly, ADRA amended the Tucker Act to provide the COFC with limited bid protest jurisdiction.128 For bid protests, the Tucker Act grants jurisdiction to the COFC to “render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.”129

Because the Tucker Act authorizes the federal government to be sued, it is a waiver of sovereign immunity.130 Waivers of sovereign immunity, including the jurisdictional requirements attached to them, must be strictly construed.131 Therefore, the COFC’s bid protest jurisdiction, construed strictly, appears limited to contracts and procurements.132 It could follow that because an OT is not a procurement contract, it falls outside the COFC’s bid protest jurisdiction.

The legislative history appears to support this conclusion. For example, when Congress provided the COFC with bid protest jurisdiction in 1996, OTs had been authorized for several decades; indeed, Congress was actively expanding OT authorization for various agencies.133 Since 1989, Congress has paid much attention to OTs, regularly making major legislative amendments to the OT statute every few years.134

A well-established canon of statutory interpretation is that “Congress is presumed to enact legislation with knowledge of the law and a newly-enacted statute is presumed to be harmonious with existing law and judicial concepts.”135 Because Congress presumably knew OTs are non-procurement instruments, it is unlikely Congress would have specified “procurement” in the Tucker Act if it intended the COFC’s bid protest jurisdiction to include OTs also.

Therefore, based on the statutory language of the COFC’s jurisdiction over bid protests — strictly construed because it is a waiver of sovereign immunity —  and the legislative history demonstrating Congress’s awareness that OTs are not procurement contracts, the COFC probably does not have jurisdiction to hear bid protests related to OTs.

d.  Potential U.S. District Court Jurisdiction over OT Bid Protests

Bid protest jurisdiction has not always been limited to the three forums discussed above.136 In 1970, in Scanwell Laboratories Inc. v. Shaffer,137 the court found that U.S. District Courts had jurisdiction to hear bid protests under the Administrative Procedure Act (APA).138 The Scanwell court held that the broad language of the APA, which provides judicial review to any person who has suffered a legal wrong because of agency action, provided a sufficient basis for a suit involving a bid protest.139 Therefore, under this decision, the district courts could exercise jurisdiction over most bid protests.140 This is commonly referred to as the district courts’ “Scanwell jurisdiction.”141

In 1996, when ADRA created bid protest jurisdiction for the COFC, it conferred concurrent jurisdiction for bid protests on the U.S. District Courts.142 However, ADRA included a “sunset” provision that allowed the district courts’ bid protest jurisdiction to expire on January 1, 2001, unless Congress passed additional legislation.143 The sunset provision stated that “[t]he jurisdiction of the district courts of the United States over the actions described in section 1491(b)(1) . . . shall terminate on January 1, 2001 unless extended by Congress.”144 That date passed without any further legislative action, and as a result, the district courts have not been a forum for bid protests since 2001.145

Nevertheless, some argue that the district courts retain some jurisdiction over bid protests. For example, one commentator argues that federal district courts may still maintain jurisdiction over bid protests under residual “Scanwell jurisdiction.”146 This commentator suggests that ADRA simply expanded district court jurisdiction, and so even after 2001, district courts maintain the APA jurisdiction that existed before the passage of ADRA.147 Therefore, district courts still retain residual “Scanwell jurisdiction” to hear most bid protests under the APA.148 However, the dominant view is that district courts do not retain bid protest jurisdiction.149

The idea of Scanwell jurisdiction has also been a judicial issue. There is a circuit split over the issue. Some courts have found that the district courts’ jurisdiction over bid protests was completely eliminated in 2001 after the expiration of ADRA’s sunset provision.150 Other courts, however, have found that district courts retain some bid protest jurisdiction.151

Overall, it is still unclear whether district courts have jurisdiction over bid protests at all.152 Because of the current circuit split, it is largely dependent on the circuit in which the protest is filed. If district courts retain residual Scanwell jurisdiction, their APA jurisdiction is broad and would likely extend to OTs.153 A decision to award an OT appears to fit the definition of a “final agency action,”154 and assuming the disappointed bidder could meet the other requirements to bring a suit, this agency action would be reviewable under the APA.155

e.  Summary of OT Bid Protest Jurisdiction

There are no requirements (or procedures) currently in place for an agency-level protest of an OT award. Therefore, although the procuring agency is an available forum for bid protests under procurement contracts, it is not necessarily available for bid protests under OTs. The GAO generally does not exercise jurisdiction over OTs because the GAO’s jurisdiction is limited to procurement contract bid protests. Additionally, while the COFC is typically a viable judicial forum for bid protests, it is limited to procurement-related protests, and therefore does not appear to be a viable forum for OT bid protests. Finally, while many commentators (and some courts) assert that the district courts do not have jurisdiction over bid protests at all, others argue that district courts retain residual Scanwell jurisdiction. If residual Scanwell jurisdiction exists, then district courts probably would have jurisdiction over OT bid protests, assuming the disappointed bidder could otherwise meet the jurisdictional requirements for suit under the APA. Therefore, in circuits that do not recognize residual Scanwell jurisdiction, it appears that there is no available forum to hear OT bid protests.

2.  Potential Jurisdiction over Post-Award OT Disputes

Post-award disputes are not defined as narrowly as bid protests. While bid protests only encompass disputes over contract award decisions, post-award disputes can include any kind of claim arising from an agreement with the United States. These claims are more closely akin to common law “breach of contract” claims — the contractor might be suing for non-payment, the government might sue for non-performance, and so forth.156

The CDA governs disputes for procurement contracts.157 Under the CDA, contractors must initially submit a formal contract claim to the contracting officer (an agency-level claim).158 After the contracting officer makes a decision to deny the claim, the contractor can then choose to appeal the decision to either the COFC or to an appeals board such as the ASBCA. However, there is no process under the CDA to resolve claims arising from an OT dispute.

a.   Potential Agency-Level Jurisdiction over Post-Award OT Disputes

Under the CDA, “each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.”159 This decision is final and binding unless the contractor files a timely appeal.160 But there is no requirement to initiate the OT claims process with the contracting officer. This does not necessarily prevent a contractor from attempting to settle the claim with the contracting officer first, but it is not required as it would be for a procurement contract.

Indeed, because OTs are flexible contracting tools, a mandatory dispute process — an “all disputes” clause — could be written into the agreement. For example, an “all disputes” clause, which outlined specific administrative resolution procedures in the event of any dispute between the parties, was included in a Space Act agreement between NASA and Transpace Carriers.161 When Transpace attempted to bypass these procedures and instead bring suit in court, the court found that the “all disputes” clause in the agreement unambiguously covered the claim, and Transpace had failed to exhaust all of the administrative remedies provided in the clause.162 Because the “administrative remedies were not unavailable or inadequate,” the court granted NASA’s motion to dismiss.163

Therefore, even though the agency is not a mandatory forum for OT disputes as it is for procurement contract disputes, it could be an available forum. Parties could mutually agree to alternate dispute resolution within the agreement. Also, courts would likely defer to the agreement provided that the dispute clause unambiguously covered the claim, and that the administrative remedies were available and adequate.

b.   Potential GAO Jurisdiction over Post-Award OT Disputes

The same analysis for the GAO OT bid protest jurisdiction applies to post- award dispute resolution. The GAO generally only has authority to decide pre-contract award disputes (bid protests).164 With regard to post-award disputes, the GAO has extremely limited jurisdiction.165 And even if the GAO does have jurisdiction over post-award disputes, the GAO does not exercise jurisdiction over OTs. Therefore, the GAO is not a proper forum for a party seeking relief under a claim arising from an OT dispute.

c.  Potential COFC Jurisdiction over Post-Award OT Disputes

Unlike the GAO, COFC jurisdiction is not limited to pre-award protests concerning procurement contracts. Rather the COFC’s jurisdiction extends to all express or implied contracts involving the United States.166 Therefore, virtually any agreement that involves the United States as a party could fall within the scope of the court’s Tucker Act jurisdiction provided there is an intent to contract including offer and acceptance, consideration, and a government official who has authority to bind the government.167

To meet the Tucker Act jurisdictional requirements, a party must establish by the preponderance of the evidence that: (a) “a valid contract existed between it and the government. . .; (b) the contract gave rise to duties or obligations; (c) the government breached those duties or obligations; and (d) the breaches resulted in damages.”168 Presumably, the COFC could find these four jurisdictional conditions met for an OT between an agency and contractor.

Potentially then, all government contract-like transactions where the government is a party, including traditional contracts and non-traditional agreements, could fall within the COFC’s Tucker Act jurisdiction provided that a party could meet the four jurisdictional requirements enumerated above. This conclusion is supported by the fact that the COFC has exercised jurisdiction over implied-in-fact contracts involving the United States.169

Further, this conclusion is supported by the fact that the COFC has exercised its jurisdiction over non-procurement instruments, such as grants, cooperative agreements, and Cooperative Research and Development Agreements (CRADAs).170 However, although grants, cooperative agreements, and CRADAs are within the COFC’s jurisdiction, these types of agreements are not procurement contracts. Consequently, the COFC has declined to evaluate grants and cooperative agreements for compliance with procurement regulations.171 The COFC’s apparent jurisdiction over express and implied contracts, and over grants, cooperative agreements, and CRADAs, suggests it would likely find OTs also fall under its Tucker Act jurisdiction. If the COFC exercised jurisdiction over an OT, however, it might limit its review of the OT by giving the agency discretion in how it applied OT policies.172

One recent commentator suggests that a relatively recent COFC decision, Spectre Corporation v. United States173 establishes that the COFC does in fact have jurisdiction over OT disputes.174 The Spectre opinion is a rul- ing on a pre-trial motion to dismiss.175 In the opinion, the COFC mentions that NASA is authorized to enter into OTs, and alludes to the fact that the agreements at issue are OTs.176 Throughout the opinion, the court refers to the two agreements at issue as both “agreements” and “contracts,” making it unclear whether the COFC recognizes a difference between the two.177 Importantly, this is a pre-trial opinion and order, it does not explicitly discuss jurisdiction, and COFC opinions are not precedential. As such, this specific opinion does not provide much clarity on whether an OT is enforceable under the Tucker Act.

Because the court has not squarely addressed its jurisdiction over OTs, cases addressing other non-procurement instruments provide useful analogies. There are two primary COFC cases that demonstrate the apparent confusion surrounding whether assistance agreements (like cooperative agreements and CRADAs) are enforceable Tucker Act contracts.178 The first case, Trauma Service Group v. United States,179 held that a cooperative agreement was not a contract and therefore was not enforceable under the Tucker Act.180 The Federal Circuit criticized the analysis in Trauma Service Group on two occasions, but did not overrule it.181 Then, a few months later, the COFC revisited the same issue in Thermalon Industries v. United States,182 but handed down a contrasting opinion and analysis.

The Thermalon Industries analysis, which relies on common law contract principles, provides a workable test to determine if post-award OTs are entitled to enforcement under the Tucker Act.183 The court in Thermalon Industries focused on grant contract agreements, but the analysis could logically apply to OTs as well.184 The court explained, “[t]here is no suggestion . . . that procurement contracts are the only type of contracts enforceable under the Tucker Act or that grant agreements that satisfy all of the ordinary requirements for a government contract should not be classified as contracts enforceable under the Tucker Act.”185

Whether an OT is subject to Tucker Act jurisdiction is probably dependent on the text of the agreement itself. OTs are contractual in nature, and would likely meet the Tucker Act’s jurisdictional requirement if the “particular agreement establishes the requisite elements of offer, acceptance, consideration, and contracting authority.”186 Agreements that are contractual in nature fall under the Thermalon jurisdictional analysis, and would likely be within the COFC’s Tucker Act jurisdiction as implied contracts. If, however, the OT was missing elements of a contract, like the cooperative agreement at issue in Trauma, the COFC would probably not exercise its Tucker Act jurisdiction.

d. Potential U.S. District Court Jurisdiction over Post-Award OT Disputes

United States District Courts have original jurisdiction over all civil actions “arising under the Constitution, federal laws, and treaties of the United States.”187 This would appear to confer jurisdiction over a federal contract claim; however, in suits against the government, waiver of sovereign immunity becomes a relevant part of the jurisdictional question.188 As previously mentioned, the Tucker Act serves as such a waiver.189

Under the Little Tucker Act,190 district courts have concurrent jurisdiction with the COFC over claims against the United States that do not exceed $10,000.191 Therefore, while the COFC can hear any contract claim against the U.S. government, the district courts can hear only those claims that do not exceed $10,000. The courts have interpreted this to mean that for any claims over $10,000, the COFC has exclusive jurisdiction.192

Another potentially relevant waiver of sovereign immunity is the APA. Reading the Tucker Act and the APA together, several courts have examined the question of whether a contract claim for non-monetary damages can be brought in the district courts. In 1986, in Sharp v. Weinberger,193 the D.C. Circuit Court of Appeals held that it could not.194 There is an exception in the APA that the APA’s waiver of immunity is not applicable “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”195 The court in Sharp held “that the Tucker Act and Little Tucker Act impliedly forbid such relief.”196 Based on this reasoning, in contract suits against the United States, remedies for non-monetary damages (injunctions, declaratory judgments, and specific performance of contracts) were unavailable.197

This interpretation of the Tucker Act has continued, at least in the D.C. Circuit, even after the Supreme Court decision in Bowen v. Massachusetts198 indicated that “the Tucker Act should not be read to ‘impliedly forbid’ under the APA the bringing in district court of contract actions for specific relief.”199 Most recently, the D.C. Circuit revisited this question in Yee v. Jewell,200 but on remand, the case ultimately was transferred from the district court to the COFC.201 Therefore, reading the APA and the Tucker Act together, the U.S. government retains sovereign immunity from contract claims seeking specific relief.

In summary, for contract claims against the United States, the district courts only have jurisdiction if the claim does not exceed $10,000. Applying this to OTs, the district courts likely will exercise jurisdiction over OT claims only in limited circumstances. Specifically, two elements must be met: (1) the OT agreement must be an implied contract (Thermalon analysis), and (2) the claim (dispute) cannot exceed $10,000. If both elements are satisfied, the district courts likely would exercise jurisdiction under the Little Tucker Act to hear the OT dispute.

IV.  Recommendations — Congressional Clarification through Legislative Amendments

Jurisdiction over OT disputes remains an unsolved puzzle. It is unclear whether any bid protest forum has jurisdiction over OT bid protests.202 Although there is a colorable argument that the COFC (and district courts in limited circumstances) likely would exercise jurisdiction over post-award OT claims, that argument is — at the very least — unclear.203 This creates uncertainty for parties seeking to enter into OT agreements with the government, and this uncertainty increases risk and cost.

Congress continues to modify the OT statute to allow for OTs to be used more regularly for innovative contracting.204 OT disputes, whether in the form of bid protests or post-award claims, are inevitable, especially as OT use becomes more frequent. Waiting for courts to decide the specific jurisdictional issues could be time-consuming and expensive for all parties. Additionally, waivers of sovereign immunity must come from the legislature; a court cannot create jurisdiction where none exists. Therefore, for OTs to remain an attractive option for non-traditional companies and small businesses wishing to do business with the federal government, Congress should unambiguously assign federal jurisdiction over OT disputes.

There is some support for the argument that Congress intentionally may have retained sovereign immunity for OT disputes. First, OTs have received a great deal of legislative attention over the past thirty years.205 Simply, this is not an area that has gone unnoticed by Congress, and the fact that it has not yet addressed OT disputes may imply that it does not wish to do so. The fact that there are several statutes and regulations governing dispute processes for traditional procurement contracts that specifically exclude OTs, provides additional support for this argument.206 Certain committee reports also provide some insight into congressional intent — specifically, that statutory authority for OTs is intentionally broad, and Congress is willing to tolerate the risk associated with the use of OTs.207 It is worth noting that Congress has remained silent on the issue of OT disputes. However, even if Congress is willing to tolerate this risk, companies may not be. Therefore, congressional clarification is necessary for OTs to remain an attractive option for non-traditional companies and small businesses to do business with the federal government.

There are some reasons why Congress may not want to waive sovereign immunity in this area. Most notably, it is clear Congress wants to ensure OTs remain flexible and free from the myriad statutes and regulations that govern traditional procurement contracts.208  However, simply adding a forum for dispute resolution to the OT statute would not frustrate this goal. Rather, it would provide more clarity and avoid the possibility of OTs being amassed with and governed by the dispute resolution processes for traditional procurement contracts.

Another reason to retain sovereign immunity could be to encourage alternate dispute resolution. Litigation — both for bid protests and claims — can be costly and time-consuming for all parties. If no forum is available for OT disputes, parties will be forced to keep these disputes out of court. However, providing a judicial forum in the statute would not necessarily prevent alternate dispute resolution. Because OTs are so flexible, alternate dispute resolution — specifically, in the form of an “all disputes” clause — can be negotiated into the agreement. So, even if a judicial forum was provided for OTs, parties could agree that all administrative remedies must be exhausted before the judicial forum would be available. Prior case law suggests courts would honor such agreements.209

Congress should prescribe a judicial forum with jurisdiction over OT disputes, thereby affirmatively waiving sovereign immunity in this area. For instance, Congress could amend the OT statute to establish COFC jurisdiction over both pre-award (bid protest) and post-award (claims) OT disputes. Alternatively, Congress could amend the Tucker Act to specify that the COFC has jurisdiction over pre- and post-award OT disputes. Appendices B and C of this article provide proposed amendments to the OT statute and the Tucker Act, respectively. These amendments would establish COFC jurisdiction over OT bid protests and post-award disputes (claims) and thereby clearly establish a forum for resolving the potentially costly and time-consuming impediments to contractors doing business with the federal government.210

V.   Conclusion

Although Congress has been silent regarding OT disputes, Congress probably did not intend the government to deprive contractors from judicial relief for OT disputes. With OTs, Congress created a new way for the government to do business that is intended specifically to attract non-traditional companies and small businesses. However, because OTs largely are exempt from statutory and regulatory burden, they also may be exempt from judicial review. The lack of any prescribed forum to hear OT disputes undermines the intent of OTs as an alternative to traditional procurement contracts because it creates increased cost and risk, particularly for the small businesses that OTs are intended to attract.

The doctrine of sovereign immunity is clear: without an express waiver, the government is immune from suit. Upon closer examination of the possible forums for OT dispute resolution, however, the COFC appears to be the most logical forum to hear OT disputes. This is because OTs are a type of implied contract — that is, even though they are not specifically called “contracts” OTs generally contain all elements of a contract. However, while post-award OT claims likely are within the COFC’s jurisdiction, its bid protest jurisdiction extends only to procurement contracts, and therefore does not reach OT bid protests.

Therefore, Congress should clarify that OTs are not entitled to sovereign immunity by providing the COFC as a judicial forum to hear OT disputes either by amending the OT statute or the Tucker Act. This would strike a balance between keeping OTs as a flexible, innovative contracting tool and diminishing the existing risk and uncertainty related to OT disputes. By doing so, Congress would go a long way towards solving the OT disputes puzzle.

 

Appendix A. Proposed Amendment to the Current OT Statute.211

10 § 2371B. AUTHORITY OF THE DEPARTMENT OF DEFENSE TO CARRY OUT CERTAIN PROTOTYPE PROJECTS

(a)    Authority.

(1)    Subject to paragraph (2), the Director of the Defense Advanced Research Projects Agency, the Secretary of a military department, or any other official designated by the Secretary of Defense may, under the authority of section 2371 of this title [10 USCS § 2371], carry out prototype projects that are directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the armed forces.

(2)    The authority of this section —

(A)   may be exercised for a transaction (for a prototype project) that is expected to cost the Department of Defense in excess of $100,00,000 but not in excess of $500,000,000 (including all options) only upon a written determination by the senior procurement executive for the agency as designated for the purpose of section 1702(c) of title 41 [41 USCS § 1702(c)], or, for the Defense Advanced Research Projects Agency or the Missile Defense Agency, the director of the agency that —

(i)     the requirements of subsection (d) will be met; and

(ii)    the use of the authority of this section is essential to promoting the success of the prototype project; and

(B)    may be exercised for a transaction (for a prototype project) that is expected to cost the Department of Defense in excess of

$500,000,000 (including all options) only if —

(i)     the Under Secretary of Defense for Acquisition, Technology, and Logistics determines in writing that —

(I)     the requirements of subsection (d) will be met; and

(II)   the use of the authority of this section is essential to meet critical national security objectives; and

(ii)    the congressional defense committees are notified in writing at least 30 days before such authority is exercised.

(C)    The authority of a senior procurement executive or director of the Defense Advanced Research Projects Agency or Missile Defense Agency under paragraph (2)(A), and the authority of the Under Secretary of Defense for Acquisition, Technology, and Logistics under paragraph (2)(B), may not be delegated.

(b)  Exercise of authority.

(1)    Subsections (e)(1)(B) and (e)(2) of such section 2371 [10 USCS § 2371] shall not apply to projects carried out under subsection (a).

(2)    To the maximum extent practicable, competitive procedures shall be used when entering into agreements to carry out projects under sub- section (a).

(c)    Comptroller General access to information.

(1)    Each agreement entered into by an official referred to in subsection (a) to carry out a project under that subsection that provides for payments in a total amount in excess of $ 5,000,000 shall include a clause that provides for the Comptroller General, in the discretion of the Comptroller General, to examine the records of any party to the agreement or any entity that participates in the performance of the agreement.

(2)    The requirement in paragraph (1) shall not apply with respect to a party or entity, or a subordinate element of a party or entity that has not entered into any other agreement that provides for audit access by a Government entity in the year prior to the date of the agreement.

(A)   The right provided to the Comptroller General in a clause of an agreement under paragraph (1) is limited as provided in sub- paragraph (B) in the case of a party to the agreement, an entity that participates in the performance of the agreement, or a subordinate element of that party or entity if the only agreements or other transactions that the party, entity, or subordinate element entered into with Government entities in the year prior to the date of that agreement are cooperative agreements or transactions that were entered into under this section or section 2371 of this title [10 USCS § 2371].

(B)    The only records of a party, other entity, or subordinate element referred to in subparagraph (A) that the Comptroller General may examine in the exercise of the right referred to in that sub- paragraph are records of the same type as the records that the Government has had the right to examine under the audit access clauses of the previous agreements or transactions referred to in such subparagraph that were entered into by that particular party, entity, or subordinate element.

(4)    The head of the contracting activity that is carrying out the agree- ment may waive the applicability of the requirement in paragraph (1) to the agreement if the head of the contracting activity determines that it would not be in the public interest to apply the requirement to the agreement. The waiver shall be effective with respect to the agreement only if the head of the contracting activity transmits a notification of the waiver to Congress and the Comptroller General before entering into the agreement. The notification shall include the rationale for the determination.

(5)    The Comptroller General may not examine records pursuant to a clause included in an agreement under paragraph (1) more than three years after the final payment is made by the United States under the agreement.

(d)    Appropriate use of authority.

(1)    The Secretary of Defense shall ensure that no official of an agency enters into a transaction (other than a contract, grant, or cooperative agreement) for a transaction (for a prototype project) under the authority of this section unless one of the following conditions is met:

(A)   There is at least one nontraditional defense contractor participating to a significant extent in the prototype project.

(B)    All significant participants in the transaction other than the Federal Government are small businesses including small businesses participating in a program described under section 9 of the Small Business Act (15 U.S.C. 638) or nontraditional defense contractors.

(C)    At least one third of the total cost of the prototype project is to be paid out of funds provided by sources other than the Federal Government.

(D)   The senior procurement executive for the agency determines in writing that exceptional circumstances justify the use of a transaction that provides for innovative business arrangements or structures that would not be feasible or appropriate under a contract, or would provide an opportunity to expand the defense supply base in a manner that would not be practical or feasible under a contract.

(2)    Except as provided in subparagraph (B), the amounts counted for the purposes of this subsection as being provided, or to be provided, by a party to a transaction with respect to a prototype project that is entered into under this section other than the Federal Government do not include costs that were incurred before the date on which the transaction becomes effective.

(B)   Costs that were incurred for a transaction (for a prototype project) by a party after the beginning of negotiations resulting in a transaction (other than a contract, grant, or cooperative agreement) with respect to the project before the date on which the transaction becomes effective may be counted for purposes of this subsection as being provided, or to be provided, by the party to the transaction if and to the extent that the official responsible for entering into the transaction determines in writing that —

(i)     the party incurred the costs in anticipation of entering into the transaction; and

(i)     It was appropriate for the party to incur the costs before the transaction became effective in order to ensure the successful implementation of the transaction.

(e)    Definitions. In this section:

(1)    The term “nontraditional defense contractor” has the meaning given the term under section 2302(9) of this title [10 USCS § 2302(9)].

(2)    The term “small business” means a small business concern as defined under section 3 of the Small Business Act (15 U.S.C. 632).

(f)    Follow-on production contracts or transactions.

(1)    A transaction entered into under this section for a transaction (for a prototype project) may provide for the award of a follow-on production contract or transaction to the participants in the transaction. A transaction includes all individual prototype subprojects awarded under the transaction to a consortium of the United States industry and academic institutions.

(2)    A follow-on production contract or transaction provided for in a transaction under paragraph (1) may be awarded to the participants in the transaction without the use of competitive procedures, not- withstanding the requirements of section 2304 of this title [10 USCS

§ 2304], if —

(A)   competitive procedures were used for the selection of parties for participation in the transaction; and

(B)    the participants in the transaction successfully completed the prototype project provided for in the transaction.

(3)    Contracts and transactions entered into pursuant to this subsection may be awarded using the authority in subsection (a), under the authority of chapter 137 of this title [10 USCS §§ 2301 et seq.], or under such procedures, terms, and conditions as the Secretary of Defense may establish by regulation.

(g)     Education and training. The Secretary of Defense shall —

(1)    ensure that management, technical, and contracting personnel of the Department of Defense involved in the award or administration of transactions under this section or other innovative forms of contracting are afforded opportunities for adequate education and training; and

(2)    establish minimum levels and requirements for continuous and experiential learning for such personnel, including levels and requirements for acquisition certification programs.

(h)    Authority to provide prototypes and follow-on production items as Government-furnished equipment. An agreement entered into pursuant to the authority of subsection (a) or a follow-on contract or transaction entered into pursuant to the authority of subsection (f) may provide for prototypes or follow-on production items to be provided to another con- tractor as Government-furnished equipment.

(i)    Applicability of procurement ethics requirements. An agreement entered into under the authority of this section shall be treated as a Federal agency procurement for the purposes of chapter 21 of title 41 [41 USCS §§ 2101 et seq.].

(j)    Jurisdiction over claims concerning prototype projects. The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded upon any prototype project carried out by the Director of the Defense Advanced Research Projects Agency, the Secretary of a military department, or any other official designated by the Secretary of Defense under the authority of section 2371 of this title [10 USCS § 2371].

 

Appendix B. Proposed Amendment to the Tucker Act.212

28 § 1491. CLAIMS AGAINST UNITED STATES GENERALLY; ACTIONS INVOLVING TENNESSEE VALLEY AUTHORITY

(a)    (1) The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract, or upon any research or prototype project, with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract or a research or prototype project with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.

(2) To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just. The Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978, including a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other nonmonetary disputes on which a decision of the contracting officer has been issued under section 6 of that Act.

(b)    (1) Both the The United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract, or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement or a research or prototype project. Both the The United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.

(2)  To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.

(3)  In exercising jurisdiction under this subsection, the courts shall give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.

(4)  In any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.

(5)   If an interested party who is a member of the private sector commences an action described in paragraph (1) with respect to a public private competition conducted under Office of Management and Budget Circular A–76 regarding the performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A–76, then an interested party described in section 3551(2)(B) of title 31 shall be entitled to intervene in that action.

(a)    Nothing herein shall be construed to give the United States Court of Federal Claims jurisdiction of any civil action within the exclusive jurisdiction of the Court of International Trade, or of any action against, or founded on conduct of, the Tennessee Valley Authority, or to amend or modify the provisions of the Tennessee Valley Authority Act of 1933 with respect to actions by or against the Authority.

Entity:
Topic:
  1. See Nancy O. Dix et al., Fear and Loathing of Federal Contracting: Are Commercial Companies Really Afraid to Do Business with the Federal Government? Should They Be?, 33 Pub. Cont. L.J. 5, 26–27 (2003).
  2. Lane v. Pena, 518 U.S. 187, 191–92 (1996). See generally Gregory C. Sisk, The Inevitability of Sovereign Immunity, 55 Vill. L. Rev. 899 (2010).
  3. Contract Disputes Act of 1978, 41 U.S.C. §§ 7101–7109 (2012).
  4. See Department of Defense Acquisition, Technology, and Logistics (DoD AT&L), “Other Transactions” OT Guide For Prototype Projects 41-42 (2002).
  5. 10 U.S.C. § 2371 (2012).
  6. For example, the CDA, the Tucker Act, and the Competition in Contracting Act (CICA) all serve as waivers by providing forums for dispute resolution. See Contract Disputes Act of 1978, Pub. L. No. 95-563, § 7105(e)(1)(A), 92 Stat. 2383 (codified as amended at 41 U.S.C. §§ 7101–09 (2012)); Tucker Act, ch. 359, 24 Stat. 505 (1887); Competition in Contracting Act of 1984, 41 U.S.C. § 253.
  7. 10 U.S.C. § 2302(9) (2012) (defining a non-traditional defense contractor as “an entity that is not currently performing and has not performed, for at least [a] one-year period . . . any contract or subcontract for the Department of Defense. . . .” Basically, they are companies that do not typically do work with the federal government).
  8. L. Elaine Halchin, Cong. Research Serv., RL34760, Other Transaction (OT) Authority 2 (2011) (explaining that “[b]y using an OT instead of a contract, an agency and its partners are able to develop a flexible arrangement tailored to the project and the needs of the participants . . .”).
  9. The analyses and propositions within this article will focus primarily on this OT statute. Importantly, DoD OT authority is divided into science and technology authority, called “basic, applied, and advanced research projects” (covered under 10 U.S.C. § 2371) and prototype authority (covered under 10 U.S.C. § 2371b). These two authorities overlap and complement one another. For example, 10 U.S.C. § 2371b states it is “under the authority of” § 2371. This article does not analyze other statutes that provide similar authority (for example, 10 U.S.C. § 2371 or 10 U.S.C. § 2358), nor does it analyze the statutes that provide OT authority to other federal agencies. However, the analysis in this article potentially could apply to these other statutes.
  10. 28 U.S.C. § 1491 (2012).
  11. National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 845, 110 Stat. 186 (1996).
  12. H.R. Rep. No. 114-102, at 202 (2015) (HASC Report) (noting that “[other transactions authority] has been an effective tool for research and development contracts, particularly for innovative organizations like the Defense Advanced Research Projects Agency”).
  13. Federal laws govern when an executive agency shall use a contract (31 U.S.C. § 6303 (2012)), grant (id. § 6304), or cooperative agreement (id. § 6305).
  14. See Dix, supra note 1, at 9.
  15. Richard L. Dunn, Other Transactions: Origins and Evolution—Part 1, Strategic Institute (Aug. 8, 2018), http://www.strategicinstitute.org/other-transactions/ot-origins-evolution-pt1 [https://perma.cc/J6LR-5JL5].
  16. Id.; Farrar v. United States, 30 U.S. 373, 378–79 (1831).
  17. See Richard L. Dunn, An Alternative to Business Acquisition As Usual, National Defense Magazine (Dec. 1, 2017), http://www.nationaldefensemagazine.org/articles/2017/11/30/an-alternative-to-acquisition-business-as-usual [https://perma.cc/2F3R-MEPX].
  18. James F. Nagle, A History of Government Contracting 516–17 (2d ed. 1999).
  19. Richard L. Dunn, Other Transactions Contracts: Poorly Understood, Little Used, Nat’l Def. Mag. (May 15, 2017), http://www.nationaldefensemagazine.org/articles/2017/5/15/other-transactions-contracts-poorly-understood-little-used [https://perma.cc/G9TX-QBD5]; Nagle, supra note 18, at 517.
  20. James F. Nagle, Federal Procurement Regulations: Policy, Practice and Procedures 532 (1987).
  21. See Dix, supra note 1, at 9.
  22. Se generally, e.g., Halchin, supra note 8, at 7–13.; Diane M. Sidebottom, Intellectual Property in Federal Government Contracts: the Past, the Present, and One Possible Future, 33 Pub. Cont. L.J. 63, 87 (2003).
  23. See Richard N. Kuyath, The Untapped Potential of the Department of Defense’s Other Transaction Authority, 24 Pub. Cont. L.J. 521, 526 (1995).
  24. See Halchin, supra note 8, at 4–5 (citing U.S. Gov’t Accountability Off., GAO-01-980T, Information on the Federal Framework and DOD’s Other Transaction Authority 1 (2001)).
  25. Id. at 3.
  26. Dunn, supra note 19.
  27. Id.
  28. 10 U.S.C. §2371(a).
  29. See Nagle, supra note 18, at 8 (arguing that the implementation of standardized forms and clauses for contracts “now pervade the procurement process and literally strip the contracting officer of discretion. Contracting officers today are told what to do and how to do it, down to the most minute detail”).
  30. See generally Nathaniel E. Castellano, “Other Transactions” Are Government Contracts, and Why It Matters, 48 Pub. Cont. L.J. (forthcoming Spring 2019) (manuscript at 13–18) (on file with author), for a comprehensive discussion on why OTs are, in fact, contracts with the federal government.
  31. See U.S. Gov’t Accountability Off., GAO-16-209, Federal Acquisitions: Use of ‘Other Transaction’ Agreements Limited and Mostly for Research and Development Activities 6 (2016).
  32. Ryan Tobin et al., Analysis of Other Transaction Agreements to Acquire Innovative Renewable Energy Solutions for the Department of the Navy, Naval Postgraduate School, Dec. 2016, at 5.
  33. Id.; Halchin, supra note 8, at 5–6.
  34. National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, § 203, 72 Stat. 426, 430 (1958).
  35. Kuyath, supra note 23, at 527–28.
  36. Id. at 527.
  37. Id. at 526.
  38. Id.
  39. National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189, § 251, 103 Stat. 1352 (1989).
  40. National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 804, 110 Stat. 2422, 2605 (1996).
  41. National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 822, 115 Stat. 1012, 1182 (2001); National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 823, 119 Stat. 3136, 3387 (2006).
  42. National Defense Authorization Act for Fiscal Year 2001, Pub. L. No. 106-398, §§ 803, 804, 114 Stat. 1654, 1654A–205 (2000).
  43. National Defense Authorization Act for Fiscal Year 2002 § 822, 115 Stat. at 1182.
  44. National Defense Authorization Act for Fiscal Year 2006 § 823, 119 Stat. at 3387.
  45. National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 815, 129 Stat. 726, 893 (2015).
  46. National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, §§ 861–68, 131 Stat. 1283, 1291 (2017).
  47. National Defense Authorization Act for Fiscal Year 2018 § 864, 131 Stat. at 1494 (replaces “provided by parties to the transaction” with “provided by sources other than the government”).
  48. National Defense Authorization Act for Fiscal Year 2018 § 863, 131 Stat. at 1494.
  49. See Dep’t of Def., Other Transactions Guide for Prototype Projects 3 (2017).
  50. Other Transaction Authority: Flexibility at the Expense of Accountability? Hearing Before the Subcomm. on Emerging Threats, Cybersecurity, and Science and Technology of the H. Comm. on Homeland Security, 110th Cong. 12 (2008) (statement of Elaine Halchin, Analyst, Congressional Research Service).
  51. American Bar Association, Section of Public Contract Law, Ad Hoc Working Group on Other Transactions, Department of Defense “Other Transactions”: An Analysis of Applicable Laws 26–31 (2000).
  52. See DOD AT&L, supra note 4, at 2.
  53. Id. at 41–42.
  54. See id. at 41.
  55. See Dep’t of Def., supra note 49, at 18.
  56. DoD AT&L, supra note 4, at 41–42.
  57. Id. at 41.
  58. Dep’t of Def., supra note 49, at 3.
  59. Jordan Hess, All’s Well That Ends Well: Scanwell Jurisdiction in the Twenty- First Century, 46 Pub. Cont. L.J. 409, 412–13 (2017).
  60. See generally Sisk, supra note 2.
  61. Lane v. Pena, 518 U.S. 187, 191–92 (1996); see also Hess, supra note 59, at 412–13.
  62. Sisk, supra note 2, at 899.
  63. Schillinger v. United States, 155 U.S. 163 (1894).
  64. Id. at 166.
  65. See Gregory Sisk, Litigation with the Federal Government 76 (4th ed. 2006); see also Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, 35 Geo. Wash. Int’l L. Rev. 521, 542-70 (2003) (arguing that because the Constitution commits appropriations power to Congress, money judgments against the government cannot be paid without a congressional appropriation, and Congress’s control over federal courts’ jurisdiction includes the ability to refuse to authorize suits against the government).
  66. Sarah L. Brinton, Three-Dimensional Sovereign Immunity, 54 Santa Clara L. Rev. 237, 239 (2014) (“[N]early every commentator who considers the subject vigorously asserts that the doctrine of sovereign immunity must go.”).
  67. John Paul Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 1126 (1993).
  68. See Sisk, supra note 65, at 226; see also Smith v. Orr, 855 F.2d 1544, 1552 (Fed. Cir. 1988).
  69. Sisk, supra note 65, at 227.
  70. See generally 28 U.S.C. § 1491; 28 U.S.C. § 1346; 41 U.S.C. § 71; 41 U.S.C. § 253.
  71. See generally Contract Disputes Act of 1978, Pub. L. No. 95-563, 92 Stat. 2383 (codified as amended at 41 U.S.C. §§ 7101–7109 (2012)); 31 U.S.C. § 3554 (2012); FAR Part 33; Bid Protest Regulations, 4 C.F.R. § 21 (2012).
  72. U.S. Gov’t Accountability Off., GAO-B-158766, GAO Bid Protest Annual Report to Congress for Fiscal Year 2017 (2017).
  73. U.S. Court of Federal Claims, Statistical Report for the Fiscal Year October 1, 2015–September 30, 2016 (2016).
  74. See supra Part II(A)(1).
  75. See generally 28 U.S.C. § 1491; 41 U.S.C. § 71; 41 U.S.C. § 253.
  76. See Gregory J. Fike, Measuring “Other Transaction” Authority Performance Versus Traditional Contracting Performance: A Missing Link to Further Acquisition Reform, Army Law. 33, 33–34 (July 2009) (“[OT] authority for the development of prototype programs was one of the reform initiatives specifically targeted to alleviate the burden of contractor compliance with DoD-unique requirements.”).
  77. See supra Part II(B).
  78. Statement of L. Elaine Halchin, supra note 50, at 15.
  79. Daniel Chudd & James Tucker, An Introduction to Bid Protests (Post-Award Protest Primer #1), Morrison Foerster (June 27, 2017), http://govcon.mofo.com/protests-litigation/post-award-protest-primer-series-part-1/ [https://perma.cc/NJ5C-84MP]. Bid protests can be further split into pre-award and post-award bid protests. That is, an interested party can file a bid protest either before or after the government awards the contract or agreement. However, this article does not make a distinction between the two.
  80. Id.
  81. See Ralph C. Nash, Jr. et al., The Government Contracts Reference Book: A Comprehensive Guide to the Language of Procurement (2013) (“[A] dispute arises between a contractor and the government during or after the performance of a contract, whereas a protest involves an offeror or prospective contractor and contests the award of the contract or the conduct of the solicitation process itself.”).
  82. See 48 C.F.R. pt. 33.101 (“[An] [i]nterested party for the purpose of filing a protest means an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.”).
  83. John Cibinic, Jr. et al., Administration of Government Contracts 1232–33 (4th ed. 2006).
  84. 31 U.S.C. §§ 3551-56; 41 U.S.C § 7101–7109.
  85. 28 U.S.C. § 1491(a) (jurisdiction over contract claims); Id. § 1491(b)(1) (bid protest jurisdiction).
  86. Id. § 1346(a)(2).
  87. 4 C.F.R. § 21.
  88. 4 C.F.R. § 21.1.
  89. Id.
  90. FAR 1.101.
  91. FAR pt. 33.
  92. FAR 33.103; FAR 33.104.
  93. FAR 33.202.
  94. See Dep’t of Def., supra note 49, at 3, 25.
  95. Note that bid protests can be brought pre- or post-award, but ultimately concern the government’s evaluation/solicitation rather than actual contract performance. See FAR pt. 33.1.
  96. See discussion infra Part III(B)(1)(b).
  97. See infra note 135.
  98. Amy Laderberg O’Sullivan et al., Government Contract Bid Protests: A Practical and Procedural Guide 2 (2018); Michael J. Schaengold et al., Choice of Forum for Federal Government Contract Bid Protests, 18 Fed. Cir. B.J. 243, 243 (2009).
  99. Schaengold et al., supra note 98, at 243. A discussion of the appeals boards’ jurisdiction over OTs is outside the scope of this article. These boards only hear appeals, as required by the CDA. Therefore, an appeals board would not have jurisdiction over an initial protest of an OT award.
  100. O’Sullivan et al., supra note 98, at 19–20.
  101. See FAR 33.103.
  102. FAR 33.103(d)(3); FAR 33.103(d)(4).
  103. O’Sullivan et al., supra note 98, at 25.
  104. See 31 U.S.C. § 3552(a); 4 C.F.R. pt. 21.
  105. 31 U.S.C. § 3551(1); see 4 C.F.R. § 21.1(a).
  106. See, e.g., Matter of Exploration Partners, LLC, B-298804, 2006 CDP ¶ 201, 4 (Dec. 19, 2006) (specifically distinguishing NASA’s “other transaction” authority from contracting authority and declining to exercise jurisdiction over OTs).
  107. Id.
  108. Id. at 4; Larry M. Eig, Cong. Research Serv., 7-5700, Statutory Interpretation: General Principles and Recent Trends 13–14 (2011).
  109. See Exploration Partners, 2006 CPD ¶ 201, at 9.
  110. Matter of MorphoTrust USA, LLC, B-412711, 2016 CPD ¶ 133, at 8 (Comp. Gen. May 16, 2016).
  111. Id. at 9.
  112. Oracle America, Inc., B-416061, 2018 CPD ¶ 180, at 1 (Comp. Gen. May 31, 2018).
  113. Bill Greenwalt, GAO Decision Threatens U.S. Military Dominance; Reject It, Breaking Defense (June 27, 2018), https://breakingdefense.com/2018/06/gao-decision- threatens-us-military-dominance-reject-it [https://perma.cc/839X-36SK].
  114. See Kenneth Patton, GAO Says Oracle Protest Did Not Make Policy; Criticizes Greenwalt Op-ed , Breaking Defense (July 9, 2018), https://breakingdefense.com/2018/07/gao-says-oracle-protest-did-not-make-policy-criticizes-greenwalt-op-ed [https://perma.cc/FL3W-538G].
  115. Oracle America, B-41606, 2018 CPD ¶ 180, at 6.
  116. Id. at 7–8.
  117. Id. at 8–9.
  118. Id. at 9.
  119. Id. at 12.
  120. Id. at 10.
  121. Id.
  122. Rocketplane Kistler, B-310741, 2008 CPD ¶ 22, at 3 (Comp. Gen. Jan. 28, 2008).
  123. Oracle America, B-41606, 2018 CPD ¶ 180, at 10–11.
  124. See id. at 11.
  125. Greenwalt, supra note 113 (noting that “[d]uring debates on expanding OTAs, Congress did not consider nor grant GAO any role in overseeing OTAs, which is why this GAO action is so monumental”).
  126. 28 U.S.C. § 1491(a)(1) (The COFC “shall have jurisdiction to render judgment upon any claim against the United Stated founded . . . upon any express or implied contract with the United States. . . .”).
  127. Peter Verchinski, Are District Courts Still a Viable Forum for Bid Protests?, 32 Pub. Cont. L.J. 393, 398 (2003) (citing Emery Worldwide).
  128. Administrative Dispute Resolution Act, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874–76 (1996) (codified at 28 U.S.C. § 1491(b)(1) (2012)).
  129. 28 U.S.C. § 1491(b)(1) (emphasis added).
  130. See Smith v. Orr, 855 F.2d 1544, 1552–53 (Fed. Cir. 1988).
  131. Lane v. Pena, 518 U.S. 187, 191–92 (1996); Smith, 855 F.2d at 1552–53; MacLean v. United States, 454 F.3d 1334, 1336 (Fed. Cir. 2006).
  132. Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1245 (Fed. Cir. 2010) (stating that “1491(b)(1) in its entirety is exclusively concerned with procurement solicitations and contracts” and that “the Court of Federal Claims was correct in holding that relief under 1491(b)(1) is unavailable outside the procurement context”).
  133. See supra Part II(A)(1).
  134. See supra Part II(A)(1).
  135. Aectra Ref. & Mktg., Inc. v. United States, 565 F.3d 1364, 1370 (Fed. Cir. 2009) (citing Cannon v. Univ. of Chi., 441 U.S. 677, 696–98 (1979)). But see CMS Contract Mgmt. Servs. v. Mass. Hous. Fin. Agency, 745 F.3d 1379 (Fed. Cir. 2014) (court review of agency discussion to use cooperative agreement instead of a FAR contract); Hymas v. United States, 810 F.3d 1312 (Fed. Cir. 2016) (court review of agency decision to use cooperative agreement); “Other Transactions Guide,” Off. of the Under Secretary of Def. for Acquisition and Sustainment (OUSD(A&S)) (Nov. 2018), https://aaf.dau.mil/ot-guide (indicating protests at COFC are possible but rare occurrence).
  136. O’Sullivan et al., supra note 98, at 2.
  137. Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970).
  138. Id. at 875.
  139. Id.; see Verchinski, supra note 127, at 397.
  140. O’Sullivan et al., supra note 98, at 2, n.3 (pointing out that there was some disagreement among district courts about whether jurisdiction was limited only to post-award protests).
  141. Id. at 1.
  142. Id. at 2.
  143. Id.
  144. Administrative Dispute Resolution Act, Pub. L. No. 104-320, § 12(d), 110 Stat. 3875 (1996).
  145. O’Sullivan et al., supra note 98, at 2.
  146. Verchinski, supra note 127, at 400.
  147. Id.
  148. Id.
  149. See Schaengold et al., supra note 98, at 243–44.
  150. Hess, supra note 59, at 411–12 nn.25–26.
  151. Id. at 409, 412 n.27.
  152. Id. (comparing City of Albuquerque v. U.S. Dep’t of the Interior, 379 F.3d 901, 911 (10th Cir. 2004) (holding district courts have jurisdiction to hear bid protests, even post-ADRA), with Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1080 (Fed. Cir. 2001) (holding the COFC is the exclusive judicial forum for bid protests)).
  153. See id. at 409, 414 (referring to the APA’s “generous jurisdictional grant”).
  154. See 5 U.S.C. § 704 (2012) (“Agency action made reviewable by statute and final agency action . . . are subject to judicial review.”); Id. § 551(13) (“‘Agency action’ includes the whole or part of an agency rule, order, license, sanction, relief, or the equivalent denial thereof, or failure to act.”).
  155. See id. §§ 701–706.
  156. See Cibinic, Jr. et al., supra note 83, at 1232–33 (claims must be “relating to the contract”).
  157. 41 U.S.C. § 7102.
  158. § 7103(a)(1).
  159. Id.
  160. Id. § 7103(g).
  161. Transpace Carriers, Inc. v. United States, 22 Cl. Ct. 80, 81–82 (1990).
  162. Id. at 85.
  163. Id.
  164. 31 U.S.C. § 3351.
  165. See, e.g., 4 C.F.R. § 21.10(a) (giving GAO jurisdiction for protests concerning express options to contract).
  166. 28 U.S.C. § 1491(a)(1).
  167. See, e.g., Spectrum Scis. v. United States, 84 Fed. Cl. 716, 735 n.26 (2008) (noting that a Cooperative Research and Development Agreement is a contract for Tucker Act purposes and that “any agreement can be a contract within the meaning of the Tucker Act, provided that it meets the requirements for a contract with the [g]overnment, specifically: mutual intent to contract including offer and acceptance, consideration, and a [g]overnment representative who had actual authority to bind the [g]overnment” (quoting Trauma Serv. Group v. United States, 104 F.3d 1321, 1326 (Fed. Cir 1997)).
  168. Id. at 735.
  169. See, e.g., Laudes Corp. v. United States, 86 Fed. Cl. 152, 161 (Fed. Cl. 2009) (finding that under the Tucker Act, the Court had jurisdiction to hear a contractor’s claims that the U.S. government breached an implied-in-fact contract).
  170. See, e.g., Spectrum Scis., 84 Fed. Cl. at 735 (reviewing an Air Force CRADA and holding that the CRADA was a contract reviewable by the court); see also Ozdemir v. United States, 89 Fed. Cl. 631, 639 (2009) (finding COFC jurisdiction extended to a solicitation to grants of financial assistance award (e.g., a grant), and thus was not limited to procurement matters).
  171. See, e.g., Rick’s Mushroom Service, Inc. v. United States, 76 Fed. Cl. 250 (2007) (declining review of a cooperative agreement under the Contract Disputes Act because the agreement was not a “procurement contract”).
  172. See Metric Systems Corp. v. United States, 42 Fed. Cl. 306, 311 (1998) (“In examining an agency’s procurement action, [the COFC gives the agency] wide discretion in the application of procurement regulations.”).
  173. Spectre Corp. v. United States, 132 Fed. Cl. 626 (2017).
  174. See Kristen Ittig, Kristen Riemenschneider & Nathaniel Castellano, 4 Cases That Could Affect Gov’t Contracts for Tech, Law 360 (Aug. 15, 2017), https://www.law360.com/articles/951565/4-cases-that-could-affect-gov-t-contracts-for-tech.
  175. Spectre Corp., 132 Fed. Cl. at 626.
  176. Id. at 627.
  177. Id. at 626, 627 (the opinion begins by stating that the “[p]laintiff . . . seeks compensatory damages for alleged breaches of two contracts.” but then later notes that “NASA entered into two such agreements with Spectre”) (emphasis added).
  178. Jeffrey C. Walker, Enforcing Grants and Cooperative Agreements As Contracts Under the Tucker Act, 26 Pub. Cont. L.J. 683, 703–04 (1997).
  179. Trauma Serv. Grp., Ltd. v. United States, 33 Fed. Cl. 426 (1995), aff'd, 104 F.3d 1321 (Fed. Cir. 1997).
  180. See id. at 429–30.
  181. Walker, supra note 178, at 694.
  182. Thermalon Indus., Ltd. v. United States, 34 Fed. Cl. 411, 413 (1995).
  183. Walker, supra note 178, at. 685 (discussing the Thermalon Industries analysis as it applies to assistant agreements).
  184. Id. at 703.
  185. Thermalon Indus., 34 Fed. Cl. at 417.
  186. Walker, supra note 178, at 703.
  187. See 28 U.S.C. § 1331 (2012).
  188. Yee v. Jewell, 228 F. Supp. 3d 48, 53 (D.D.C. 2017).
  189. Sisk, supra note 65, at 228.
  190. 28 U.S.C. § 1346(a)(2).
  191. Id.
  192. See, e.g., Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982).
  193. Sharp v. Weinberger, 798 F.2d 1521, 1523 (D.C. Cir. 1986).
  194. See id. (“The sole remedy for an alleged breach of contract by the federal government is a claim for money damages, either in the United States Claims Court under the Tucker Act, 28 U.S.C. § 1491(a)(1), or, if damages of no more than $10,000 are sought, in district court under the Little Tucker Act, 28 U.S.C. § 1346(a)(2) (1982).”).
  195. 5 U.S.C. § 702.
  196. See Sharp, 798 F.2d at 1523.
  197. See Albrecht v. Comm. on Emp. Benefits, 357 F.3d 62, 67–68 (D.C. Cir. 2004) (stating “the Tucker Act ‘impliedly forbids . . . not only district court awards of money damages, which the Claims Court may grant, but also injunctive relief, which the Claims Court may not.’”); see also Sharp, 798 F.2d at 1523.
  198. Bowen v. Mass., 487 U.S. 879 (1988).
  199. See id. at 892 n.18; Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 613 (D.C. Cir. 1992) (noting certain differences in Bowen, and declining to overrule the “very specific holdings that the APA does not waive sovereign immunity for contract claims seeking specific relief”); see also Yee, 228 F. Supp. at 55.
  200. Yee, 228 F. Supp. at 55.
  201. Associated Mortg. Bankers Inc. v. Carson, 281 F. Supp. 3d 5, 9 n.2 (D.D.C. 2017).
  202. See discussion supra Part III(B)(2)(c).
  203. See discussion supra Part II(A)(2).
  204. National Defense Authorization Act for Fiscal Year 2018 §§ 861–68, 131 Stat. at 1291.
  205. See discussion supra Part II(A)(1).
  206. See discussion supra Part I(A)(2); Appendix B.
  207. S. Rep. No. 115-125, at 190 (2017).
  208. Id.
  209. Transpace Carriers, Inc. v. United States, 22 Cl. Ct. 80, 84 (1990).
  210. See supra text accompanying note 9. This article suggests amending the OT statute or the Tucker Act because these appear to be the most logical statutes to amend. For example, because the OT statute is the organic statute for OT agreements, it provides a clear starting point for parties seeking dispute guidance. Additionally, because the COFC may already have post-award dispute jurisdiction over OTs, amending the Tucker Act provides necessary jurisdictional clarity. While these statutes are illustrative, other statutes such as the CDA or CICA could be similarly amended.
  211. The underlined text in section (j) indicates the proposed language to be added to the OT statute. The remaining text is updated to include the amendments from the 2018 NDAA.
  212. Underlined text indicates the proposed language to be added to the Tucker Act. Any text with a strikethrough indicates proposed language to be removed from the Tucker Act.