WILL GAO’S OTA RULING CHILL USE OF INNOVATIVE ACQUISITION?
The trade press was alive late last week with word that the Government Accountability Office (GAO) sustained a protest brought by Oracle involving a multi-million dollar cloud award made by DOD using Other Transaction Authority (OTA). While the size of the initial contract award – over $900 million – was certain to draw scrutiny, the question now becomes whether this case will be the high water mark for OTA’s or other innovative acquisition methods. The question is worth asking not only because GAO sustained the protest, but because of the language they used in doing so. GAO made it clear that DOD should use competitive procedures that comply with existing rules, or prepare a Competition in Contracting Act (CICA) determination to move forward with a non-competitive acquisition. While we’re not criticizing the legal basis of GAO’s determination, it has to be obvious that the reason DOD went the OTA route in the first place is precisely because existing rules did not allow the agency to get what it needed in a timely manner. Congress recognized the cumbersomeness of the process when it expanded OTA authority for DOD two years ago. Directing the agency to go back to the “slow lane” is not exactly a blow for speed and efficiency, especially at a time when DOD is eager to get innovative technologies in the door as quickly as possible. Neither does it provide any cover for the next government buyer who wants to try an innovative acquisition approach. GAO, ironically a legislative branch agency, may have just undone what Congress tried to do, at the expense of innovative acquisition for an agency whose mission is to provide national security.