In the Bloomberg Law article “How Four Big Federal Contracts Rulings Will Echo Into 2021,” Faegre Drinker government and regulatory affairs partner Jack Horan addressed the impact of four big federal contract rulings moving into 2021.
Much of the federal contracting legal world in 2020 remained focused on the Defense Department’s $10 billion JEDI cloud procurement, but federal contracts litigation went beyond JEDI. Horan discussed one of the other most significant rulings of the year: prototype protests.
Contractors will be discouraged from challenging other transaction authorities (OTAs) — even though the California court heard the SpaceX suit — because of the highly deferential arbitrary and capricious Administrative Procedure Act standard to the government’s actions, said Horan.
Because the Federal Acquisition Regulation doesn’t apply to OTAs, “the government has more discretion in establishing the basis and criteria for award of OTAs, and challengers to the government’s actions have fewer requirements imposed on the government than protesters in traditional procurement,” he added.
Horan further commented that district courts would also have fewer requirements to guide them in judicial review.