Other Transaction Authority May Change Military Construction

Government Contracts attorneys Jeremy Burkhart, Gregory Koger and Mike Wakefield co-authored a Law360 article about a novel use of other transaction agreements (OTAs) for military construction (MILCON) or repair projects. The 2026 National Defense Authorization Act contains a new provision, 10 U.S.C. Section 2808a, that authorizes the U.S. Department of Defense (DOD) to enter into OTAs for planning, design, engineering and prototyping for facility repair and construction projects, thus introducing a tool that sits alongside traditional Federal Acquisition Regulation-based MILCON authority under Section 2802. As the authors note, the expanded use of MILCON OTAs could attract a wider range of competitors, from nontraditional contractors to construction technology firms. In their article, they break down Section 2808a, including congressional defense committee reporting requirements, and describe how it differs from the DOD's prototype OTA authority under Section 4022. They go on to detail recent uses of the new MILCON OTA authority, including facility modernization at the U.S. Army's Joint Base Lewis-McChord and a virtual industry day from the U.S. Army Corps of Engineers, and list takeaways for contractors competing for and negotiating agreements.

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