A recent decision by the U.S. District Court for the District of Arizona highlights the complexity of jurisdictional issues faced by unsuccessful offerors that challenge government awards of “other transaction” (OT) agreements. Over the past few years, OT agreements have grown significantly in popularity due to their immunity from the regulatory provisions that typically govern government procurement contracts, including those that address intellectual property rights, cost accounting, and other key terms. By some reports, Department of Defense (DoD) spending on OT agreements has grown from $2.3 billion in Fiscal Year (FY) 2017 to, by some accounts, more than $7 billion in FY 2019. It is no wonder that companies not selected for an OT agreement have at times attempted to challenge their exclusion in various judicial fora.
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