GAO Declines To Limit DoD's "Experimental Purchasing" Authority

In its recent decision in Air Tractor, Inc., the Government Accountability Office (GAO) held that the Department of Defense (DoD) may, at its own discretion, begin a project with agreements under its prototyping Other Transaction (OT) authority, and award later phases of the same project on a sole source basis under its experimental purchasing authority. In the decision, GAO discussed distinctions between these avenues, and gave a broad reading to the DoD's authority to award contracts for experimental work.¹

Introduction

The past few years have seen a swell of interest in DoD's ability to sidestep the Federal Acquisition Regulation (FAR) and use more flexible OT authority to enter into contracts.² Thus far, the majority of this interest has centered on DoD's OT authority to enter into prototype projects, now codified at 10 U.S.C. § 2371b. One of the most powerful features of DoD's prototype OT authority is that DoD may award a sole source follow-on production