'Other Transactions' Are Government Contracts, And Why It Matters

Public Contract Law Journal, Vol. 48, No. 3, Spring 2019

30 Pages Posted: 13 Aug 2019 Last revised: 14 Sep 2019

See all articles by Nathaniel Castellano

Nathaniel Castellano

Arnold & Porter; George Washington University - Law School

Date Written: August 9, 2019

Abstract

Some believe that agencies endowed with Other Transactions Authority (“OTA”) are free from the traditional rules of procurement contracting when forming Other Transactions. With the freedom of OTA, the theory goes, agencies can contract with the most innovative commercial firms, which might otherwise decline the boilerplate terms and compliance burdens associated with procurement contracting. This article is a reminder that the authority to create an Other Transaction is, at bottom, the authority to create a government contract. It first explains why Other Transactions qualify as contracts, and then begins exploring the implications of the contractual nature of Other Transactions. Any private party entering into an Other Transaction should be aware of the significance of contracting with the United States. OTA might clear away many burdensome procurement statutes and regulations, but principles of sovereign immunity and separation of powers, along with the pervasive precedents of the United States Court of Appeals for the Federal Circuit, will continue to ensure that doing business with the federal government, even by “Other Transaction,” is never quite the same as doing business in the commercial market.

Keywords: Government Contracts; Other Transactions; OTA; Federal Circuit

JEL Classification: H57, K12, K23, K21

Suggested Citation

Castellano, Nathaniel, 'Other Transactions' Are Government Contracts, And Why It Matters (August 9, 2019). Public Contract Law Journal, Vol. 48, No. 3, Spring 2019 , Available at SSRN: https://ssrn.com/abstract=3435062

Nathaniel Castellano (Contact Author)

Arnold & Porter ( email )

601 Massachusetts Ave, NW
Washington, DC 20001
United States

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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