Court ruling in Groundswell case adds confusion over OTA protests

When can you protest an other transaction authority procurement?

That was one of the central questions asked in Groundswell's protest of a $1 billion Army business system consolidation contract that went to Accenture Federal Services.

Judge Richard Hertling's ruling in the case, which went against Groundswell in May and was unsealed Monday, offers little clarity because different judges at the U.S. Court of Federal Claims have given differing decisions about when OTA protests can happen.

OTA procurements typically have three primary steps – a concept phase, followed by a prototype phase, and finally the award of a production contract.

In the Groundswell case, the company protested decisions made during steps four and five of the prototype phase. But because Groundswell waited until step seven to file the protest, the Army and Accenture argued that it was too late to challenge the earlier steps.

Judge Richard Hertling sided with the Army and Accenture, saying he did not have jurisdiction to rule on protests involving the prototype phase because OTAs are not procurements at that stage. They only become a procurement when the agency decides to move ahead with a production contract.

OTAs have a “jurisdictional blackout" during the prototype phase as far as the U.S. Court of Federal Claims is concerned.

But in making his 34-page ruling, Hertling acknowledged the issue is not settled.

“Several judges of this court have found jurisdiction to exist, but the Federal Circuit has not squarely resolved the issue,” he wrote. Federal Circuit refers to the U.S. Court of Appeals for the Federal Circuit, which hears challenges to Court of Federal Claims decisions.

Even if he had jurisdiction, Hertling said Groundswell lacked convincing evidence to support its challenge.

But a broader question remains – when and where do you protest if you are pursuing an OTA and are rejected during the prototype phase?

Hertling has one potential answer: a U.S. District Court and a protest under the Administrative Procedure Act.

But that answer does not offer much clarity to potential protesters and Hertling acknowledges that.

“Admittedly, there is at present no definitive answer to the jurisdictional puzzle presented by protests of OT(A)s,” he writes. “Perhaps the court has complicated the jurisdictional issue beyond what is necessary or appropriate.”

Hertling said the legislative branch may need to get involved:

“Congress has not made this initial inquiry easy, because it has defined OT projects by what they are not rather than what they are: transactions (other than contracts, cooperative agreements, and grants.)”

Congress can “untangle the web by providing more guidance, but in its absence, agencies, prospective contractors, counsel, and judges of this court will need to await guidance from the Federal Circuit,” Hertling writes.

One concern being voiced on LinkedIn is that the government's use of OTAs is expected to rise, which compounds the confusion and uncertainty.

“Contractors deserve more clarity on where these protests should be filed,” attorney Stephen Bacon posted. “It’s time for the Federal Circuit (or Congress) to weigh in.”