CFC Rejects Government’s “Narrow and Oversimplistic View” of Tucker Act Jurisdiction, Declares Itself “De Facto Forum” for OTA Protests

On February 24, 2025, in Raytheon Company v. United States, Judge Bonilla of the Court of Federal Claims (CFC) submitted the latest—and perhaps most definitive—entry in a growing body of jurisprudence confirming the CFC’s Tucker Act bid protest jurisdiction encompasses challenges to awards made under the Department of Defense’s Other Transaction Agreement (OTA) authority. Upon establishing a framework for considering its ability to review OTA awards, the CFC declared itself “the de facto forum for bid protests involving ‘other transactions’ and ‘other transaction agreements.’” 

Raytheon involved a request by DOD’s Missile Defense Agency (MDA) for the development of a Glide Phase Interceptor (GPI), a new concept for detecting and intercepting hypersonic and intercontinental ballistic missiles. In 2021, as part of Phase I of the GPI effort, MDA awarded OTAs to both Raytheon and Northrop Grumman for limited research and prototype development with the possibility of “a follow-on production contract or OT.” Both Raytheon and Northop proceeded to Phase II, “Technology Development,” but in September 2024, MDA discontinued Raytheon’s participation in the GPI program citing a “lack of confidence” in Raytheon’s proposed solution. 

In November 2024, Raytheon filed a bid protest at the CFC, alleging MDA had improperly evaluated its cost and technical proposal and ignored statutory requirements for the GPI program. The government moved to dismiss Raytheon’s protest, arguing that OTA awards of the type at issue did not qualify as a “solicitation . . . for bids or proposals for a proposed contract,” “a proposed award or the award of a contract,” nor were they “in connection with a procurement or proposed procurement.” The CFC rejected the government’s argument outright, describing it as a “narrow and oversimplistic view of OT awards for the sake of judicial expediency in drawing jurisdictional boundaries.” 

In so doing, the CFC explained that “[n]othing in the statutory scheme or legislative history behind the grant of OT authority suggests that Congress intended to exempt awards under these contract vehicles from judicial scrutiny,” and helpfully walked through the history of OTA protests that have bounced between the CFC and U.S. District Courts (a history we have previously described as a game of jurisdictional ping pong). 

In an effort to “streamline litigation of these jurisdictional issues in future cases, until such time as Congress or the United States Court of Appeals for the Federal Circuit is presented with the appropriate opportunity to resolve the issue,” the CFC crafted the following “working definition” for determining its jurisdiction over OTA awards: acquisitions via OTA “intended to provide the government with a direct benefit in the form of products or services” were within the CFC’s Tucker Act protest purview, whereas OTAs by which the government was merely “facilitating the creation or expansion of a commercial market for the general public from which a federal agency or instrumentality might someday purchase,” were not. Against that framework, the CFC concluded that Raytheon’s protest fell squarely within its Tucker Act jurisdiction, because the GPI program was “intended to provide the government with a direct benefit in the form of products or services.”

The test established in Raytheon appears straightforward and easy to apply, and the CFC’s self-identification as the “de facto” forum for OTA protests is a welcome development, especially in light of DOD’s increasing use of OTA awards. But whether the decision slows jurisdictional challenges brought by the government in response to OTA protests remains to be seen.