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Solicitation for Cooperative Agreements Was a Procurement Action

The Court of Federal Claims had jurisdiction over a post-award protest of a "request for applications" for online training courses because the solicitation was a procurement action under the Tucker Act. The Occupational Safety and Health Administration issued the RFA to authorize qualified vendors to provide online outreach training program courses. Successful applicants would be awarded a nonfinancial "cooperative agreement." The protester challenged the rejection of its application. The government moved to dismiss, arguing the CFC's Tucker Act jurisdiction is limited to claims "in connection with a procurement or a proposed procurement" (28 USC 1491). According to the government, the definition of "procurement" under the Tucker Act is limited by the definition of "procurement contract" in the Federal Grant and Cooperative Agreement Act of 1977 (31 USC 6301-6308), and because OSHA's cooperative agreement met the criteria for using a cooperative agreement under the FGCAA, it could not be considered a procurement under the Tucker Act. The protester countered by arguing the term "procurement" encompassed the cooperative agreement at issue.

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The court agreed and found it had bid protest jurisdiction over the protester's complaint. In reaching this conclusion, the court recognized that not all cooperative agreements are procurements under the Tucker Act. For example, where an agency, pursuant to a statutory directive, is distributing funds or providing assistance to service providers to ensure a service's availability, it is not conducting a procurement. However, where an agency has a statutory mandate to provide a service, and the agency decides to use a cooperative agreement to obtain that service, that agency has engaged in a procurement process under the Tucker Act. Under the OSHA Act of 1970, OSHA is required to "establish[] and supervis[e]" programs for the education and training of workers (29 USC 670(c)). In issuing the RFA, OSHA was seeking to obtain the services of third parties to implement its statutory mandate to establish and supervise training and education programs. The agency was not seeking to provide funding or assistance to third parties to ensure the availability of training. Therefore, the solicitation was a procurement action under the Tucker Act because it was "in connection with" the "process of acquiring property or services," making jurisdiction under 28 USC 1491(b)(1) proper. (360Training.com, Inc. v. U.S., et al., FedCl, 56 CCF 79,818)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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