Government Contracting by Other Transaction: Intellectual Property, Authority, Disputes, and Protests.

The past several years have seen a burgeoning interest in Other Transactions Authority (OTA) as the Department of Defense (DoD) and other agencies seek to do more business with innovative commercial firms and sidestep inefficiencies and constraints associated with traditional procurement contracting under the Federal Acquisition Regulation (FAR). In many respects, Other Transactions provide incredible flexibility, allowing the parties to negotiate terms and conditions that are unheard of in traditional procurement contracting and may serve to attract commercial firms that would not otherwise do business with the government. Yet, Other Transactions are still fundamentally contract with the federal government, and principles of sovereign immunity, separation of powers, and the federal common law of contracts ensure that doing business with the federal government, even by “Other Transaction,” is never quite the same as doing business in the commercial market. 

It is critical for lawyers dealing with Other Transactions to understand (1) the implications of stripping away traditional procurement rules, and (2) the foundational laws that apply to all government contracts, including Other Transactions. After providing context for the current interest in OTA, this program will address four discrete areas of interest—IP, authority, disputes, and protests. In each area, the program will discuss the potential advantages and disadvantages of removing the traditional procurement contracting rules, while also identifying the foundational rules of government contracting that will apply.

Learning Objectives:

1. Discuss the context for the current interest in Other Transactions, particularly DoD’s OTA for prototype projects, 10 U.S.C. § 2371b, as well as the potential advantages of using Other Transactions instead of traditional procurement contracting
2. Review the procurement laws that do not apply to Other Transactions and the laws that do apply to Other Transactions
3. Assess the IP implications of using Other Transactions, specifically an overview of the rules that apply to allocate IP rights under the Defense Federal Acquisition Regulation Supplement (DFARS) and a discussion of the additional flexibility provided by Other Transactions
4. Consider the current status of law regarding which individual government officials have the actual authority to form procurement contracts compared to which officials have actual authority to form Other Transactions
5. Analyze the legal framework applicable to resolving breach of contract disputes arising from Other Transactions
6. Examine the legal framework applicable to bid protest litigation arising from Other Transactions