MD Helicopters, Inc.

B-417379 Apr 04, 2019 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights MD Helicopters, Inc., a small business, of Mesa, Arizona, protests the decision of the Department of the Army, U.S. Army Futures Command, not to enter into a phase one other transaction agreement (OTA) pursuant to 10 U.S.C. §2371b with MD Helicopters under solicitation No. W911W6-19-R-0001, for the development of a future attack reconnaissance aircraft competitive prototype. MD Helicopters argues that the Army unreasonably evaluated its proposal, and otherwise failed to reasonably promote small business participation in accordance with 10 U.S.C. § 2371b(d)(1). We dismiss the protest because we do not review the award of non-procurement instruments issued under an agency's OTA authority. We dismiss the protest because we do not review the award of non-procurement instruments issued under an agency's OTA authority. View Decision Decision Matter of:  MD Helicopters, Inc. File:  B-417379 Date:  April 4, 2019 Brett W. Johnson, Esq., Colin Ahler, Esq., and Derek Flint, Esq., Snell & Wilmer LLP, for the protester. Jennifer S. Zucker, Esq., Melissa P. Prusock, Esq., and Daniel D. Straus, Esq., Greenberg Traurig, LLP, for Sikorsky Aircraft Corp.; Scott M. McCaleb, Esq., Sarah B. Hansen, Esq., and Jon W. Burd, Esq., Wiley Rein LLP, for The Boeing Co., the intervenors. Debra J. Talley, Esq., Department of the Army, for the agency. Evan D. Wesser, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest of the agency’s evaluation of proposals for the award of other transaction agreements pursuant to the authority of 10 U.S.C. § 2371b is dismissed because our Office generally does not review protests of awards, or solicitations for awards, of other transaction agreements. DECISION MD Helicopters, Inc., a small business, of Mesa, Arizona, protests the decision of the Department of the Army, U.S. Army Futures Command, not to enter into a phase one other transaction agreement (OTA) pursuant to 10 U.S.C. §2371b with MD Helicopters under solicitation No. W911W6-19-R-0001, for the development of a future attack reconnaissance aircraft competitive prototype.[1]  MD Helicopters argues that the Army unreasonably evaluated its proposal, and otherwise failed to reasonably promote small business participation in accordance with 10 U.S.C. § 2371b(d)(1). We dismiss the protest because we do not review the award of non-procurement instruments issued under an agency’s OTA authority. Under the Competition in Contracting Act of 1984 (CICA), and our Bid Protest Regulations, we review protests concerning alleged violations of procurement statutes or regulations by federal agencies in the award or proposed award of contracts for the procurement of goods and services, and solicitations leading to such award.  See 31 U.S.C. §§ 3551(1), 3552; 4 C.F.R. § 21.1(a).  In circumstances where an agency has statutory authorization to enter into “contracts . . . [or] other transactions,” we have concluded that agreements issued by the agency under its “other transaction” authority “are not procurement contracts,” and therefore we generally do not review protests of the award or solicitations for the award of these agreements under our bid protest jurisdiction.  Blade Strategies, LLC, B-416752, Sept. 24, 2018, 2018 CPD ¶ 327 at 2; Rocketplane Kistler, B-310741, Jan. 28, 2008, 2008 CPD ¶ 22 at 3.  With respect to a procurement involving an OTA, our review is limited to a timely pre-award protest that an agency is improperly using its other transaction authority to procure goods or services.  4 C.F.R. § 21.5(m); Blade Strategies, LLC, supra.  MD Helicopters’ protest, however, concerns the agency’s evaluation of proposals and award decision, which are not within our bid protest jurisdiction. MD Helicopters opposes dismissal of its protest arguing that 4 C.F.R. § 21.5(m) provides that “GAO generally does not review protests of awards, or solicitations for awards, of agreements other than procurement contracts” (emphasis added), and, therefore, we should exercise our “considerable discretion” to hear its protest challenging the evaluation of its OTA proposal.  Protester Opp. to Request for Dismissal at 3-4.  This argument is without merit.  As addressed above, our Office’s bid protest jurisdiction was established by Congress in CICA.  Our Office does not enjoy broad discretion to modify or expand our jurisdiction beyond the grant provided by Congress.  As discussed above, CICA limits our jurisdiction to reviewing protests concerning alleged violations of procurement statutes or regulations by federal agencies in the award or proposed award of contracts for the procurement of goods and services, and solicitations leading to such award.  See 31 U.S.C. §§ 3551(1), 3552; 4 C.F.R.