360Training.com, Inc. v. United States
104 Fed. Cl. 575
| Fed. Cl. | 2012Background
- 360Training, a plaintiff, filed a post-award bid protest on March 27, 2012 challenging OSHA's RFA for online Outreach Training Program providers and a nonfinancial cooperative agreement structure.
- OSHA sought qualified vendors to deliver 10- and 30-hour Outreach courses and to enter into five-year cooperative agreements; Plaintiff had been an approved provider prior to the RFA.
- Plaintiff alleged OSHA acted arbitrarily and unlawfully in evaluating its application and in selecting other providers over Plaintiff.
- OSHA argued the Tucker Act lacks jurisdiction because the RFA resembled a nonprocurement solicitation under FGCAA cooperative agreements.
- The court initially questioned jurisdiction, then concluded that the Tucker Act § 1491(b)(1) covers protests 'in connection with' the entire procurement process, including preprocurement decisions.
- The court held that while not all cooperative agreements are procurements, OSHA’s use of cooperative agreements to obtain training services fell within a procurement process and thus within the court's bid protest jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has bid protest jurisdiction under the Tucker Act | 360Training argues the case concerns a procurement process and falls within §1491(b)(1). | The Government contends the RFA is nonprocurement under FGCAA and thus outside Tucker Act jurisdiction. | Jurisdiction exists; protest is in connection with a procurement. |
| Whether OSHA's Solicitation was a procurement action under the Tucker Act | OSHA used cooperative agreements to obtain third-party training services, effectively procuring them. | The RFA, as FGCAA-based, is not a procurement contract. | Solicitation was a procurement action under the Tucker Act. |
| Whether the Tucker Act's definition of 'procurement' is narrow or broad | Procurement includes the entire process of determining needs to contract completion, not limited to appropriated funds. | Procurement should be narrowly tied to acquisition using appropriated funds and procurement contracts. | Procurement is broad; it encompasses all stages of acquiring property or services. |
| Whether FGCAA cooperative agreements preclude Tucker Act procurement jurisdiction | Cooperative agreements can function as procurement to obtain services related to OSHA's mandate. | FGCAA's cooperative agreements are not procurement contracts and should not trigger Tucker Act jurisdiction. | FGCAA does not narrow Tucker Act procurement scope; the arrangement can still be a procurement under §1491(b)(1). |
| Whether the preprocurement and solicitation elements support a procurement protest | RFA contained selection criteria, notice of conference, and awarding/denying awards; supports procurement process. | FGCAA encourages competition and cooperative agreements can accompany procurement; the presence of competition does not certify nonprocurement. | Preprocurement elements support a procurement protest under Tucker Act. |
Key Cases Cited
- Resource Conservation Group, LLC v. United States, 597 F.3d 1238 (Fed.Cir. 2010) (broad Tucker Act procurement scope; all stages from need determination to closeout)
- Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed.Cir. 2008) (‘in connection with’ is sweeping; preprocurement decisions are reviewable)
- Fisher-Cal Industries, Inc. v. United States, 839 F.Supp.2d 218 (D.D.C. 2012) (insourcing decisions can be procurement-related)
- Rothe Dev., Inc. v. U.S. Dep’t of Defense, 666 F.3d 339 (5th Cir. 2011) (insourcing decisions and Tucker Act jurisdiction analysis)
- Vero Tech. Support, Inc. v. U.S. Dep’t of Defense, 437 Fed.Appx. 766 (11th Cir. 2011) (insourcing decisions lack procurement jurisdiction)
- Santa Barbara Applied Research, Inc. v. United States, 98 Fed.Cl. 536 (Fed.Cl. 2011) (Tucker Act jurisdiction over insourcing decisions)
- Rick’s Mushroom Service, Inc. v. United States, 521 F.3d 1338 (Fed.Cir. 2008) (cost-sharing agreements and cooperative agreements analyzed)
- R & D Dynamics Corp. v. United States, 80 Fed.Cl. 715 (Fed.Cl. 2007) (SBIR grants; distinction from procurement contracts)