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

Readers of this Journal are likely aware of the burgeoning interest in Other Transactions and Other Transactions Authority (OTA). Some believe that agencies endowed with 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