Last month, in Raytheon Co. v. United States,[1] the U.S. Court of Federal Claims (COFC) confirmed its jurisdiction to hear bid protests challenging the award of certain other transaction (OT) agreements. The decision names COFC the “de facto forum” for such protests, at least those that involve OTs awarded by the Department of Defense (DoD) for research and prototype projects under 10 U.S.C. §§ 4021 and 4022.
Under Raytheon, an OT falls within COFC’s bid protest jurisdiction under the Tucker Act[2] if it is “an acquisition instrument other than a traditional procurement vehicle intended to provide the government with a direct benefit in the form of products or services.” This “requires an evaluation of the federal agency’s immediate endgame,” and provides jurisdiction where an agency has, with an OT award, “charted a more direct and interlinked path from research, to development, to production, to government purchase.” By contrast, where an agency is using an OT to “facilitat[e] the creation or expansion of a commercial market for the general public from which a federal agency or instrumentality might someday purchase,” the award falls outside COFC’s bid protest jurisdiction, such that any protest must be filed in a federal district court of general jurisdiction under the Administrative Procedures Act (APA).
Raytheon is a logical continuation and attempted bookend of a developing body of case law we have discussed before. Although decisions about if and where to file a protest are best made after careful consultation with counsel, the court’s decision offers some welcome clarity in an area of increasing importance. For more on OTs, check out our DoD OT Desk Reference.
[1] No. 24-1824C, 2025 WL 583350 (Fed. Cl. Feb. 24, 2025), available here.
[2] 28 U.S.C. § 1491(b).
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