Other Transaction Authority Agreements: DoD Aims for Faster, Flexible, and Innovative Procurement

Driven by the need for rapid technological advancement and to better engage innovative firms in an era of great power competition, the federal government is increasingly utilizing Other Transaction Agreements (OTAs). This article examines the history, operational framework, and significant recent legal and policy developments shaping these flexible, non-FAR-based acquisition tools. Have questions about significant regulatory changes, including the FAR rewrite? Feel free to get in touch for additional information. Contact the managing partner at marcos@govspringlegal.com or at (202) 609-7501, and follow GovSpring Legal on LinkedIn.

The Soviet Union launched Sputnik on October 4, 1957, beating the United States to launch the first man-made object into orbit. This launch provided the U.S. government with a new sense of urgency that it had not had since WW2, when the U.S. Department of War was able to rapidly prototype and produce weapons systems for the war effort.  At that time, the government was able to utilize acquisition strategies such as letter contracts to bring large weapon systems to production in just a few years:

The development of the high-speed jet engine B-47 bomber was initiated by a letter contract in February 1945. Even with the postwar mobilization and uncertainty of the future of the program, prototypes (XB-47) were built and flown in 1947–1948 and the first production plane was delivered in 1950, or five years from program initiation. Further engineering issues would delay initial operational capability (IOC) until 1952, but nonetheless equating to a total of 6.5 years from first contract to design, prototyping of several versions of aircraft, and to operational use.[1]

Once the space race began, the DoD and NASA began pouring money into Silicon Valley tech companies such as Texas Instruments and Fairchild Semiconductor (who developed transistors for the guidance system of the Minuteman ballistic missile). These companies benefited handsomely from federal funding. For example, in 1962, NASA announced it would utilize Fairchild’s integrated circuits in guidance computers for the Apollo mission.[2]  As a result of the space race and the urgency of the arms race with the Soviet Union, the federal government was central to the early adoption and demand for Silicon Valley’s prized invention: the semiconductor.[3]

In contrast to the early days of heavy government-funded R&D, prototyping, and expedited contract efforts, the federal government has struggled to reengage tech companies. Part of the disconnect stems from the lack of need for federal funding. In contrast to the early days, tech companies today regularly develop major technological breakthroughs at independent expense solely through the commercial marketplace: artificial intelligence, commercial software, and even some weapons systems.[4] Tech companies are also understandably reluctant to manage a large compliance effort, such as the level of support required to manage onerous cost-accounting standards. Additionally, while the governance of intellectual property is less restrictive for commercial technologies, contractors are still resistant to become involved in federal efforts for fear of losing their intellectual property.[5] 

The federal government has begun to reengage tech companies by increasing their use of non-FAR based procurement methods called Other Transaction Agreements (“OTAs” or “OTs”).  Recent developments regarding OTAs call for a brief overview of their origin, purpose, and the current state of play.  The recent announcement by DoD that they will utilize OTAs for software acquisition highlights their intended purpose: a vehicle for fast, bureaucracy-free acquisition. The larger context today is not unlike that in which OTs were developed—two great powers (now, the U.S. and China) competing for technological dominance—previously in space and now in software-driven weapons platforms.  Developments in the protest landscape at the Court of Federal Claims have complicated a portion of OT transactions, making them subject to limited protests; but their use will likely increase, as evidenced by executive branch policy and geopolitical urgency. 

The history of OTs dates to the space race between the U.S. and the Soviet Union. The first statute was the Space Act of 1958[6], which established NASA but also provided it with the following authority: “…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…”[7]  Since their statutory creation, they have been undergoing conceptual development as a fully-developed alternative acquisition vehicle; they have also been authorized at several additional agencies, including the DoD, the Department of Energy (DoE)[8], the Department of Health and Human Services (HHS)[9], the Department of Homeland Security (DHS)[10], the Department of Transportation (DOT)[11], the Federal Aviation Administration (FAA)[12], and the Transportation Security Administration (TSA)[13].

OTAs at DOD are for Either Research, Prototyping, and Production

The DoD uses OTs the most, and is authorized to utilize them for research, prototyping, and follow-on production. Each type of OT is subject to different statutory requirements, and DoD has provided a helpful guide for understanding the use and limitations of the acquisition vehicle.[14]

• Research OTs

Research OTs were first authorized for the Defense Advanced Research Projects Agency (“DARPA”) in 1989, and the authority now appears at 10 U.S.C. § 4021. Research and development projects discussed in § 4021 reference the authority to undertake such projects outlined at 10 U.S.C. § 4001, namely, research for basic, applied, and advanced research.  The Office of the Under Secretary of Defense for Research and Engineering (OUSD(R&D)) issues policy and guidance related to Research OTs.[15]  These OTs are for “validating research results and advancements, rather than for the delivery or acquisition of the resultant technologies.”[16]  Under requirements at 10 U.S.C. § 4021, the OT must focus on basic, applied, or advanced research, are subject to a maximum DoD cost share of 50%[17]; they also must not duplicate research being done by other DoD programs[18].  Other notable features of Research OTs are that the intellectual property (IP) rights may be subject to negotiation, as they are not subject to Bayh-Dole, which strictly governs how IP ownership works in grants and contracts. Competition is also strongly encouraged, but not required.  When competing Research OTs, DoD will issue announcements utilizing Broad Agency Announcements (BAAs) or Commercial Solutions Openings (CSOs). 

• Prototype OTs

Prototype OTs are authorized under 10 U.S.C. § 4022; however, the authority is derived from § 4021, where the statute discusses Research OTs.  The authority to carry out such projects is limited to projects that are:

… directly relevant to enhancing the mission effectiveness of personnel of the Department of Defense or improving 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.[19]

For any project over $100 million, there must be a written determination by the relevant DoD subunit[20] that the use of an OT meets at least one of the following conditions, outlined at 10 USC § 4022(d): (1) a nontraditional defense contractor or nonprofit research institution is participating “to a significant extent” in the project; (2) all significant participants are small businesses or nontraditional defense contractors[21]; (3) there is at least a 1/3 cost share from non-federal sources, and; (4) the senior procurement executive issues a written determination that exceptional circumstances justify the use of an OT in a manner not achievable under a contract.  Under (3) and (4), the presence of a small business or nontraditional defense contractor would not be a requirement. If cost share is met, or if a written determination is made, a large, traditional defense contractor could participate in a Prototype OT. 

• Production OTs

The Statute also addresses scenarios where DoD contracts to bring a prototype to production, which can occur through follow-on production contracts or OTs. DoD may use noncompetitive procedures for follow-on production contracts if both:

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

(B) The participants in the transaction successfully completed the prototype project provided for in the transaction.[22]

(C) DoD must also determine that the prototype was successfully completed when part of a consortium (a collection of contractors grouped by industry).[23]

As we will see in our discussion of Independent Rough Terrain Center, LLC below, the failure of either of these statutory requirements may justify a bid protest at the Court of Federal Claims or GAO.  The requirements are also jointly necessary, meaning they all must be satisfied for a follow-on to be justified. Lastly, they may not be used to bring research OTs to production, nor can they be used to bring FAR-based prototype contracts to production.[24]

• Solicitation and Competition Requirements for OTAs

OTs are not required to be solicited by formal solicitation but can be in the form of “white papers, oral presentations, and panel pitches . . . [or] more formal approaches, such as Broad Agency Announcements (BAA), Annual Plan Call for White Papers, or a CSO.”[25]  The DoD Guide also notes more unorthodox approaches to solicit opportunities, such as “tech demonstrations, design sprints, hackathons, innovation workshops, rodeos, ‘Shark Tank’-like presentations, prize contests and other similar events. . .”[26] Likewise, competitive requirements are also not as strict, since neither the FAR, DFARS, nor the Competition in Contracting Act apply to OTAs.  However, as we discuss in the section below regarding bid protests, failure to compete a prototype OTA will affect how the agency may conduct a follow-on production acquisition. 

• What Laws Apply to OTs?

While the Federal Acquisition Regulation does not apply to OTAs, and therefore the commonly applied clauses do not apply, there are several laws that still govern them.  DoD addresses this in its OTA Guide:

OT authorities are authorized by law with clear statutory guidelines. Generally, the statutes and regulations applicable to acquisition and assistance do not apply to OTs. Since OTs are defined in the negative—they are NOT procurement contracts, grants, or cooperative agreements—any statute, regulation, or policy that applies solely to those types of contractual arrangements will not apply to OTs. However, statutes and regulations applicable to acquisition and assistance are only a subset of all federal statutes or regulations. Laws and regulations that are unrelated to the acquisition or assistance process will still apply to OTs. These can include, but are not limited to, appropriations, security, export control, socio-economic, and criminal laws.[27]

Here is an abridged list of laws that apply to OTAs:

• The Procurement Integrity Act (41 U.S.C. Chapter 21)
• Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment (Section 889 of the National Defense Authorization Act for FY 2019 and FY 2020)
• Cybersecurity Requirements governing Controlled Unclassified Information (National Institute of Standards and Technology (NIST) SP 800-171 & DoDI 5200.48)
• National Industrial Security Policy (NISP) Requirements governing classified information (32 CFR Part 117).   
• Counterfeit Electronic Parts Restrictions (Section 818 of the National Defense Authorization Act for FY 2012 and subsequent updates)
• Anti-Kickback Act of 1986 (41 U.S.C. Chapter 87)[28]
• Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352)
• False Claims Act (31 U.S.C. §§ 3729 – 3733)
• Anti-Deficiency Act (31 U.S.C. §§ 1341, 1342, & 1517)
• Export Controls (Arms Export Control Act [22 U.S.C. 2751 et seq.] & the Export Administration Act of 1979 [50 U.S.C. 4601 et seq.])

CURRENT DEVELOPMENTS IN CASE LAW, LEGISLATION, and EXECUTIVE ACTION

The Court of Federal Claims has recently articulated its role in reviewing OTAs, providing judicial review under the Tucker Act. Such review is limited at the Government Accountability Office (GAO), whose review authority is governed by the Competition in Contracting Act (“CICA”), which does not apply to OTAs.  In some circumstances, GAO reviews protests involving OTAs.  But GAO explains the restricted function of this review authority as follows:

GAO may, in limited circumstances, may hear a protest that tangentially impacts an agency’s award or proposed award of other than a procurement contract. In this regard, with respect to OTAs, our Office will review whether an agency has failed to comply with its statutory OTA authority, and therefore is improperly using an OTA to acquire goods or services in lieu of acquiring the goods or services using a procurement contract.[29]

GAO has therefore reviewed several OTAs under the limited purpose of ensuring that they comply with authorities required for OTs outlined above. For example, in a 2018 protest involving Oracle, GAO determined that the Army failed to provide for the award of a follow-on production OT as required by rules governing follow-on production contracts described in the last section. Under this theory, a FAR-based contract or other procurement contract would be the appropriate method of acquisition.

            More recently, the Court of Federal Claims has articulated its position on bid protest standing at that forum, in several cases that demonstrate the limits of bid protests at the court. 

Independent Rough Terrain Center, LLC v. United States, 172 Fed. Cl. 250 (2024)

On December 16, 2022, the United States Army Materiel Command (“AMC”) issued a request for proposal for modernization of its Rough Terrain Container Handler (“RTCH”) vehicles, which help lift and move shipping containers. The solicitation stated that the selection process would be done in accordance with 10 U.S.C. § 4022(f), and further required offerors to be consistently registered in the Systems for Award Management (“SAM”). The AMC limited selection in the follow-on contract to two contractors who successfully submitted prototypes in the original OTA: Independent Rough Terrain Center, LLC (“IRTC”) and Taylor Defense Productions, LLC (“Taylor”). The AMC awarded the production follow-on contract to Taylor on September 20, 2023, and IRTC filed an agency-level protest nine days later, and an updated filing in October subsequent to viewing Taylor’s prototype. Despite the AMC agreeing to take corrective action, IRTC filed a bid protest at COFC on January 31, 2024, alleging the AMC’s scope in its corrective action was insufficient and Taylor should be disqualified for award as they provided a deficient prototype, in violation of the requirement at 10 U.S.C. § 4022(f)(2)(B) to that follow-on awards only be made to participants who have successfully completed the prototype project. Taylor and the Government filed a Motion to Dismiss due to IRTC’s lack of standing and COFC’s lack of jurisdiction to hear a bid protest over an OTA follow-on contract.

On the jurisdictional question, COFC rejected the Government and Taylor’s Motion to Dismiss. Though Judge Davis’s analysis of 10 U.S.C. § 4022 conceded that OTA’s are not considered contracts governed under the FAR, this distinction did not mean OTA’s were exempt from COFC’s jurisdiction. The opinion states that the Federal Circuit has previously ruled that COFC’s jurisdiction over federal procurements is “broad.” With this “broad” conception of COFC jurisdiction, Judge Davis highlighted that it was irrelevant that the AMC’s contract for the RTCH modernization project was a follow-on from an OTA prototype. Rather, because the proposal sought to acquire goods or services for the Government, the AMC’s follow-on contract fell under COFC jurisdiction. Judge Davis came to this conclusion by focusing on contract’s purpose, not its underlying authority.

However, COFC ultimately dismissed IRTC’s protest because it was revealed that IRTC’s SAM registration had lapsed during the initial protest process, which IRTC did not dispute. Despite IRTC’s arguments that the inclusion of FAR 52.204-7 System for Award Management in AMC’s solicitation did not impose the requirement of consistent registration in SAM to be eligible for award, COFC stated that the statutory language of this clause did not permit any exceptions to be made to this strict rule.

Raytheon Co. v. United States, 2025 U.S. Claims LEXIS 217 (Fed. Cl. 2025)

As part of the National Defense Authorization Act for Fiscal Year 2017, Congress tasked the Department of Defense’s (“DoD”) Missile Defense Agency (“MDA”) to develop missile defense capabilities, including detecting missiles during their glide phase. Given this obligation, in 2021, the MDA issued an announcement for white papers on basic and applied research for a glide phase interceptor, with a possible follow-on contract. By November 2021, the MDA awarded an OTA to three contractors for the first phase of the OTA, which included Raytheon Co. (“Raytheon”) and Northrop Grumman Systems Corp. (“Northrop Grumman”). The number of awardees was later reduce to two in June 2022, eliminating the third contractor.

In response to the MDA’s original announcement, both Raytheon and Northrop Grumman proposed two technological solutions. By mid-2023, the MDA moved to the second phase of development, which focused on building and testing the hardware and software for each contractor’s proposed solution. During this phase, the MDA concurrently signed a cooperative agreement with Japan’s Ministry of Defense (“Japan”) to help develop the rocket motors and propulsion components of the glide phase interceptor. Upon joining the project, Japan expressed interest in utilizing Northrop Grumman’s solution rather than Raytheon’s, whose data on their solutions’ payload defeat capability data was subpar. This insufficient data led the MDA, per their acquisition plan for the second phase, to discontinue Raytheon’s participation in the second phase in September 2024 as their proposal was not preferred in comparison to Northrop Grumman’s.

Raytheon later filed a bid protest at COFC on November 6, 2024, arguing that the MDA improperly evaluated both their and Northrop Grumman’s proposals based on unstated selection criteria, violated Congress’ directive to achieve initial operation capability by December 31, 2029, and that the MDA decremented Raytheon’s proposal based on perceived risk without holding Northrop Grumman’s proposal to the same standard. Alternatively, Raytheon also argued that MDA officials breach an implied-in-fact contract to fairly consider the defense contractor’s proposal. Through analyzing the history of OTA’s, COFC held that there was nothing in the statutory scheme or legislative history implied that Congress intended to exempt follow-on production contracts under an OTA from judicial scrutiny.

COFC’s approach to its authority to hear bid protests arising out of OTs has varied in recent years. For example, in a protest involving SpaceX, COFC held that an Air Force solicitation was not a procurement and therefore fell outside of the court’s bid protest jurisdiction.[30] To reach this determination, the court applied three factors to evaluate whether an agency’s decision was “in connection with” or “related to” a procurement under the Tucker Act: (1) the “separate and distinct nature” of the solicitation versus the potential procurement; (2) the different acquisition strategies employed; and (3) the prototype agreements did not involve the agency in procuring goods or services.

Raytheon contrasts with Independent Rough Terrain, where the court held that pre-production OTA’s could fall under the Court’s Tucker Act jurisdiction, since the Army was using the follow-on contract to procure military vehicles and other services. Based on these two cases, each representing a different position on this matter, COFC stated that if the follow-on production contract intended to provide “a direct benefit” to the government through products or services, it would fall under the court’s jurisdiction. From this new framework, COFC found that the MDA’s phase-two OTA reaches this threshold, allowing the court to hear Raytheon’s bid protest. Specifically, the glide phase interceptor program clearly was intended to provide the government with a benefit, even if the MDA did not formally commit to purchase an end product from Northrop Grumman. In addition, COFC held that Raytheon was an interested party to establish standing for bringing a bid protest, and that there is no requirement for a contractor to exhaust administrative remedies prior to filing a bid protest.

LEGISLATIVE ACTIONS

On December 19, 2024, Senator Roger Wicker (“Senator Wicker”) (R-Miss.) released a plan titled Restoring Freedom’s Forged: American Innovation Unleashed (“FORGED Act”), representing his plan to fundamentally alter the way the DoD procures weapons and services. The FORGED Act centers around five key principles: (1) cutting red tape; (2) unleashing innovation; (3) creating competitive pressure; (4) enabling decisive action; and (5) modernizing budgeting. Senator Wicker also put forth comprehensive legislation in-line with the FORGED Act, Fostering Reform and Government Efficiency in Defense, to put the plan’s recommendations into practice. For Senator Wicker, the ideal outcome for the FORGED Act is to make a “generational investment” by smartly utilizing taxpayer dollars to buy top-notch weaponry, adopt new technology faster, and boost competition in the defense sector.

Under the FORGED Act’s framework, Senator Wicker emphasizes the availability and use of OTA’s as a nontraditional contract vehicle that would meet the ideal outcome and provide the DoD with greater flexibility compared to traditional, FAR-based procurements. The plan views OTA’s as a critical component in evolving the DoD to become a better customer to encourage the involvement of non-traditional defense contractors in this sector. Although, the support of OTA’s under the FORGED Act is not unfettered, given that their usage is based around the idea OTA’s are “efficient, expeditious, and commercially acceptable.” If this is not the case in each procurement, OTA’s may not be the proper contract vehicle, though this determination is on a case-by-case basis.

EXECUTIVE ACTIONS

• Hegseth’s Software OTA Memorandum

On March 6, 2025, Secretary of the Department of Defense Pete Hegseth issued a memorandum called “Directing Modern Software Acquisition to Maximize Lethality.”  Under Secretary Hegseth, the DoD’s new policy is to reform its acquisition policy in response to software as a new product that will define the future of global warfare.  Therefore, DoD seeks to leverage existing acquisition authorities, including OTs under 10 U.S.C. § 4022, to “keep pace” with commercial technology advancements, leverage the commercial ecosystem for defense systems, rapidly deliver scaled digital capabilities, and evolve systems faster than adversaries.  Use of Commercial Solutions Openings (“CSOs”) and OTAs will now be the default solicitation method for acquiring software at DoD. 

• Executive Order 14265

The Trump Administration’s policy on Modernizing Defense Acquisition is to accelerate defense procurement and revitalize the industrial base—focuses on speed, flexibility, and execution, which includes rewarding “risk-taking and innovation.”  Accordingly, within 60-days of the EO’s issuance (June 8), DoD is required to submit a plan to reform defensive acquisitions moving forward, which includes an explicit preference for commercial solutions and OTA’s that would streamline defense procurements.  Overall, the EO tasks DoD with prioritizing CSOs and OTAs in all future contract actions and require their application for all future DoD procurements where appropriate and applicable.  In addition, the Secretary of DoD will be required to promote and utilize expedited and streamlined acquisitions in line with the ten-for-one rule (e.g., for every new rule/regulation, you must eliminate ten rules that are “restrictive”).  Plus, all heads of DoD divisions (e.g., Army, Navy, Air Force) must reform all major defense acquisition programs and, if they are 15% behind schedule or over cost, they will be referred to OMB for “future budget determinations.”  It is an open question if any cancelled contracts will immediately be reprocured as OTAs, but that is implied by emphasizing their use.

PREDICTING FUTURE TRENDS

It is uncontested that the Trump Administration’s views OTA’s as an underutilized acquisition method that, when used in all applicable situations, will save taxpayer dollars and help modernize the DoD’s acquisition strategies in the long-term. OTA’s also serve another purpose—they allow the Administration to circumvent numerous regulations and considerations that exist in traditional procurement methods. In an earlier article, we wrote about how a future “FAR 2.0” will likely serve as the cornerstone of the Trump Administration’s steps to fundamentally change federal procurement in the name of simplification and efficiency. While the rewrite is underway, OTA’s could aid the Trump Administration’s efforts to avoid regulations that slow down defense procurements and stifle development. For example, FAR Parts 19 and 22, which cover small business procurements and the application of labor laws to federal procurements, impose numerous policy-based requirements on all procurements. If the DoD were to utilize OTA’s over FAR-based procurement vehicles, the agency can avoid these regulations and increase the speed of acquiring goods and services. Eliminating burdensome regulatory requirements and customizing OTAs to enhance flexibility will incentivize participation by nontraditional contractors that have long shunned government business as overly burdensome.

For all its positives, OTA’s flexibility for defense procurements does come at a cost—decreased oversight. Last August, Senator Catherine Cortez Masto (“Senator Masto”) (D-NV) proposed legislation requiring the DoD to set up a pilot program to trace all contracts awarded via OTA’s. Senator Masto’s proposal centers around ensuring small businesses can participate in OTA’s and get the necessary funding to succeed in this procurement area by tracking the number of OTA’s awarded to small businesses and nontraditional defense contractors. This proposal relies heavily on a report from the Government Accountability Office (“GAO”) in 2022 titled Other Transaction Agreements: DoD Can Improve Planning for Consortia Awards. At the heart of GAO’s report is the DoD’s failure to collect specific data on how OTA award dollars are disbursed, which limits DoD’s ability to effectively use OTA’s for future awards. Senator Masto’s proposal builds from this conclusion, with the hope that small businesses can participate in any revitalization of the defense sector.

Based on the Trump Administration’s policy stances towards federal procurement, it is unlikely that the Trump Administration would adopt legislation like Senator Masto’s proposal. The takeaway from this proposal is not its likely demise but rather pointing to potential obstacles in the prospective use of OTA’s as a critical component to improving defense procurements. Coupled with COFC’s new approach towards review of OTA’s, increasing the likelihood a judge may review an OTA bid protest or other legal issue on its merits, the Administration will need to navigate these obstacles to guarantee OTA’s can be freely used to meet President Trump’s goals.

This article was co-authored with Aaron Silva. Aaron is currently a third-year law student at The George Washington University Law School, with a focus in Government Procurement and International & Comparative Law.

[1] William Greenwalt & Dan Patt, Competing in Time: Ensuring Capability Advantage and Mission Success through Adaptable Resource Allocation, Hudson Institute (Feb. 2021), https://www.hudson.org.

[2] Phil Goldstein, How Government Helped Spur the Microchip Industry, FedTech Magazine, Sept. 10, 2018, https://fedtechmagazine.com/article/2018/09/how-government-helped-spur-microchip-industry.

[3] See Anna Slomovic, Anteing Up: The Government’s Role in the Microelectronics Industry, RAND Corporation, P-7516-RGS (Dec. 16, 1988), available at https://apps.dtic.mil/sti/tr/pdf/ADA228267.pdf.

[4] Anduril, a smaller developer of innovative weapons systems, has touted the use of its Lattice software for commercial uses. See https://www.anduril.com/article/anduril-s-lattice-a-trusted-dual-use-commercial-and-military-platform-for-public-safety-security/

[5] Prior to the Bayh-Dole Act of 1980, entities who received federal funds for research and development could not elect to retain ownership over their IP.  This placed pressure on firms to develop technology at independent expense and hindered the commercialization of government-funded research projects. 

[6] National Aeronautics and Space Act of 1958, Pub. L. No. 85-568 , § 203(b)(5), 72 Stat. 430

[7] National Aeronautics and Space Act of 1958 § 203(b)(5)

[8] 42 U.S.C. § 7256(a), see also  Department of Energy “Guide to Other Transactions,” available at https://www.energy.gov/sites/default/files/2023-08/OT%20Guide%20Aug%202023_0.pdf

[9] Pandemic and All Hazards Preparedness Act, Pub. L. 109-417, § 301, 120 Stat. 2833.

[10] The Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2224

[11] Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 623

[12] Department of Transportation Act, Pub. L. 89-670, 80 Stat. 931; see also 49 U.S.C. § 5312. 

[13] Aviation and Transportation Security Act, Pub. L. 107-71, § 101, 115 Stat. 597 (citing authority under 49 U.S. Code § 106(l))

[14] Off. of the Under Secretary of Defense for Acquisition and Sustainment, Other Transactions (OT) Guide, Defense Acquisition Univ. (July 2023), https://aaf.dau.mil/ot-guide/, referred to herein as “OT guide” or simply “guide.

[15] Id.

[16] Id. at PDF p.  6.

[17] 10 USC § 4021(e)(2)

[18] 10 USC § 4021(e)(1)

[19] 10 USC § 4022(a)

[20] Under 10 USC § 4022(a)(2)(A), this determination must be made by “the head of the contracting activity, or, for the Defense Advanced Research Projects Agency, the Defense Innovation Unit, or the Missile Defense Agency, the director of the agency . . .”

[21] Under 10 USC § 3014, non-traditional defense contractor “means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section.”

[22] 10 U.S.C. § 4022(f)(2)

[23] 10 U.S.C. § 4022(f)(3); “Consortia members may be technical performers, financial contributors, potential end users of products and technologies developed by the consortia, or other unspecified interested parties in the project or projects being funded.” DoD OT Guide at p. 32.  The statute also specifies that it is not a requirement that all act invitees that are part of a consortium be complete prior to the award of a production follow-on award. 10 U.S.C. § 4022(f)(3).

[24] OT Guide at 16.

[25] OTA Guide, at 17-18.

[26] Id. at 18.

[27] OTA Guide, at 44.

[28] It is unclear if this applies, as discussed in Richard L. Dunn, Other Transaction Agreements: What Applies?, 32 NASH & CIBINIC REP. NL P 22, at 3 (May 2018)

[29] MD Helicopters, Inc., 2019 U.S. Comp. Gen. LEXIS 94, *4

[30] Space Expl. Techs. Corp. v. United States, 144 Fed. Cl. 433,435 (2019)