American Safety Council, Inc. v. United States

In the United States Court of Federal Claims
No. 14-1175C
(Filed: July 24, 2015)
FILED UNDER SEAL
REISSUED FOR PUBLICATION AUGUST 10, 20151
************************************
*
AMERICAN SAFETY COUNCIL, INC. *
*
Plaintiff, * Cross Motions for Judgment on the
* Administrative Record; Motion to File
v. * Sur-reply; Motion to Supplement the
* Record; Bid Protest; Unduly Restrictive;
THE UNITED STATES, * Legitimate Need; Injunctive Relief
* CICA; OCI
Defendant, *
*
and *
*
CLICKSAFETY.COM, INC., *
*
Intervenor-Defendant *
. *
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OPINION AN ORDER
DAMICH, Senior Judge.
In this pre-award protest, Plaintiff, American Safety Council, Inc. (“ASC”) challenges the
terms of a request for proposals from the U.S. Department of Labor (“DOL”), Occupational
Safety and Health Administration (“OSHA”). The Solicitation sought proposals for its Online
Outreach Training Program. The Protest challenges the Solicitation’s terms as being unduly
restrictive, inconsistent with customary commercial practice, ambiguous, and failing to address a
conflict of interest.2 As a result, ASC contends that the Court must enjoin OSHA from
disrupting the status quo and causing irreparable harm to ASC and to others involved in
OSHA's Online Training Program. Because the procurement is so fundamentally flawed,
1
The original Opinion was filed under seal. The parties have conferred as to necessary
redactions and those redactions have been made in this public opinion. Redacted sections appear
with brackets as follows: “[. . .]”.
2
ASC has withdrawn its taking claim (the unilateral taking of ASC’s Intellectual
Property rights) for lack of ripeness. See ASC Reply at 28 n.28.
1
ASC argues the only proper remedy is the wholesale cancellation of the Solicitation. ASC is a
potential awardee.
Currently pending before the Court are the parties’ Cross Motions for Judgment on the
Administrative Record, ASC’s Motion to Supplement the Administrative Record, and Motion to
File a Sur-reply Brief by ASC.
For the reasons set forth below, the Government’s Cross Motion for Judgment on the
Administrative Record is granted in part and denied in part, and ASC’s Motion for Judgment
on the Administrative Record is granted in part and denied in part. The Court further denies
Defendant-Intervenor’s Motion for Judgment on the Administrative Record. ASC’s Motions to
Supplement the Administrative Record and to File a Sur-reply are denied.
I. Procedural History
On December 5, 2014, ASC filed its Complaint in this Court. Along with its Complaint,
ASC filed a Motion for a Temporary Restraining Order and Motion for Preliminary Injunction
seeking to preserve the status quo by enjoining OSHA from proceeding with the Solicitation.3
After a hearing, the Court denied ASC’s Motion for a Temporary Restraining Order and
Preliminary Injunction determining that the balance of the four factor test for injunctive relief as
well as the representation by Government counsel that it would not make any award until the
Court rules on the protest weighed in favor of the Government. The Court allowed the
Government to receive bids and begin evaluations and the Government agreed that it would not
make any award until the conclusion of this litigation. See Order Dated December 11, 2014,
ECF #16.
ClickSafety.com, Inc., filed an unopposed Motion to Intervene, as a Defendant-
Intervenor, which was subsequently granted. See Order dated January 14, 2015, ECF #36.
PureWorks, Inc., d/b/a UL Workplace Health and Safety (“UL WHS”) also filed a Motion to
Intervene, which was denied. See Opinion and Order dated February 18, 2015, ECF #49.
The Administrative Record (“AR”) was filed by the Government on January 6, 2015.
On February 2, 2015, ASC filed a Motion to Compel Completion of the Administrative Record
and after several Motions by ASC and subsequent Court orders4 the Court permitted the record
to be supplemented. ASC was permitted to supplement the record with the affidavit of Jeffery R.
Pairan, Chief Executive Officer of ASC (“Pairan Affidavit”) which ASC had already filed as an
3
ASC also filed, pursuant to Rule 40.2 of the Rules of the Court of Federal Claims
(“RCFC'), a Notice of Related Case, American Safety Council v. United States, l2-355C (Fed. Cl.
2012). In that action, the Court ordered: "if Plaintiff files a bid protest involving the new
solicitation the Clerk is directed to assign the protest to the undersigned." The case was
subsequently assigned to the undersigned.
4
See Order dated February 24, 2015, ECF #52; Order dated February 27, 2015, ECF
#56; Order dated March 13, 2015, ECF No. 66.
2
attachment to its Motion for Judgment on the Administrative Record. The Court permitted the
Government to supplement the record with the Administrative Officer’s affidavit explaining the
genesis of the documents that were not self-authenticating (“Payne Dec.”). The Court further
permitted the Government to supplement the record with the names, number of offerors and each
offeror’s proposal. These documents were filed by the Government in an Amended
Administrative Record (“Am. AR”) on March 9, 2015. Defendant-intervenor was permitted to
supplement the record with an affidavit to address conflict of interest allegations raised by ASC,
filed with its Cross Motion and Response to Plaintiff’s Motion for Judgment on the
Administrative Record on March 6, 2015.
ASC filed its Motion for Judgment on the Administrative Record (“Pl.’s Mot. JAR”), on
February 6, 2015, to which ClickSafety.com (“Def.-Int. Cross Mot. JAR”)5 and the Government
(“Def. Cross Mot. JAR”) timely responded. All parties timely filed their respective replies.
II. ASC’s Motion to File a Sur-reply and Motion to Supplement the Administrative
Record
A. Motion to File a Sur-reply
On May 13, 2015, ASC filed a Motion for Leave to File a Sur-reply to the Government’s
Reply in Support of Cross-Motion for Judgment on the Administrative Record. The Government
responded in opposition (“Def. Resp.”) to which ASC did not reply. In it Motion, ASC contends
that the Government raises three factual or legal issues for the first time, therefore, a sur-reply
should be allowed.
It has been held that sur-replies are generally disfavored. See Wright ex rel. Trust Co. v.
Abbott Labs., 62 F. Supp. 2d 1186, 1187 n.1 (D. Kans. 1999) (“Surreplies are disfavored, and
normally will be permitted only upon prior invitation by the court.”), aff’d, 259 F.3d 1226 (10th
Cir. 2001). As a strategic move, a non-movant will attempt to file a sur-reply as an effort to get
the last word. Lacher v. West, 147 F. Supp. 2d 538, 539 (N.D. Tex. 2001) (“Surreplies, and any
other filing that serves the purpose or has the effect of a surreply, are highly disfavored, as they
usually are a strategic effort by the nonmovant to have the last word on a matter.”). That is the
case here. The three issues that ASC contends are being raised for the first time, have either
been raised by the Government in its initial brief or responded to an issue raised in ASC’s reply
brief. Thus, ASC has not identified any basis for its sur-reply, other than, as the Government
points out, “to get the last word.” Def. Resp. at 2. Therefore, ASC’s Motion to File a Sur-reply
is denied.
B. Motion to Supplement the Administrative Record
On May 20, 2015, and in connection with its Response and Reply to Defendant’s
Opposition and Cross-Motion for Judgment on the Administrative Record, ASC filed a Motion
to Supplement the Administrative Record (“Pl.’s Mot. Supp.”) with the supplemental affidavit of
5
ClickSafety.com’s brief only addresses the Conflict of Interest arguments by ASC that
the Court discusses in Section VI D.
3
Jeffery R. Pairan (“Supp. Pairan Affidavit”). ASC argues that the “affidavit provides crucial
context and clarification regarding the private, proprietary courseware and supporting programs
to which the Solicitation’s onerous intellectual property (“IP”) provisions would apply.” Pl.’s
Mot. Supp. at 1. The Government disagrees advancing that the affidavit is not needed for
meaningful review.
In general, “the focal point for judicial review should be the administrative record already
in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S.
138, 142 (1973). A court may supplement the administrative record, however, if it finds that
supplementation is necessary to ensure that “effective judicial review” is not frustrated. Axiom
Resource Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009). Such
supplementation should occur “if the existing record is insufficient to permit meaningful review
consistent with the [Administrative Procedure Act].” Id. “The purpose of limiting review to the
record actually before the agency is to guard against courts using new evidence to convert the
arbitrary and capricious standard into effectively de novo review.” Id. at 1380 (quotations
omitted).
The Court agrees with the Government that the supplemental affidavit should not be
admitted into the administrative record because it is are not necessary for meaningful review.
The Court discusses the arguments made by ASC later in its opinion as ASC has already raised
these issues in its opening and responsive briefs. See discussion infra Section VI part A1.
Therefore, the Court denies ASC’s Motion to Supplement the Record.
The case is now ripe for disposition.
III. Background
By statute, OSHA must "provide for the establishment and supervision of programs for
the education and training of employers and employees in recognition, avoidance, and prevention
of unsafe or unhealthful working conditions. . . ." 29 U.S.C. § 670(c)(1). OSHA can provide
this training “directly or by grants or contracts.” 29 U.S.C. § 670(a)(1). Aside from the
mandate to “establish [ ] and supervis[e],” the statute does not provide any guidance as to how to
implement training programs for workers.
As a result, in 1971, OSHA established the Outreach Training Program. ARTab 34 at
334. This program authorizes trainers, through its OSHA Training Institute Education Centers, to
teach classes regarding basic occupational safety and health workplace hazards. Id. The outreach
courses are given by independent OSHA-authorized trainers, not by OSHA. Even though OSHA
does not directly provide outreach courses to workers, the content of any course provided must
include OSHA’s training requirements and OSHA must approve the course materials. AR Tab
16 at 103; AR Tab 34 at 334. Thus, OSHA has defined specific requirements that must be taught
in any course, including worker rights, employer responsibilities, filing complaints, and
recognizing, avoiding and preventing workplace hazards. See id., AR Tab 16 at 103. An
individual who completes an authorized course receives an OSHA course-completion card. AR
Tab 16 at 103. The completion card serves as proof of completion of OSHA’s officially
authorized courses, a requirement that is necessary in some jurisdictions. Id.; AR Tab 34 at 334.
4
At the onset and until 2001, the authorized providers and trainers were required to
conduct in-person training. AR Tab 1 at 1. Then, in 2001, OSHA started the Online Training
Program, which provided for online, rather than classroom delivery of certain courses. Id.
Specifically, OSHA authorized online training courses for its 10-hour and 30-hour construction
and general industry programs. AR Tab 1 at 2; AR Tab 34 at 336.
In order to become an authorized online training provider, OSHA implemented an
application process. Id. Through this process, OSHA authorized nine online training providers.
Id. Over the past five years, the number of students taking OSHA-authorized in-person and
online courses have reached an average of 750,000 students annually, with over 180,000 students
in fiscal year 2014 receiving online training. AR Tab 1 at 1.
On October 31, 2009, a moratorium was instituted by OSHA on receiving or approving
any additional applications for online training providers because of “concerns regarding quality
control issues, program redundancy, and the ability to review and respond to the applications in a
timely manner with current resources,” id, and reselling agreements, id. In response to these
problems, OSHA’s Director of Training and Education, Dr. Henry Payne, recommended that
OSHA replace the incumbents by using a new competitive process. AR Tab 1 at 2. According
to OSHA, the new plan was expected to develop “robust technical specifications and control
measures” for the competitive process. Id. The formalized plan resulted in a Request for
Applications (“RFA”) and on March 29, 2011, OSHA issued an RFA by notice in the Federal
Register for online OSHA Outreach Training Courts providers to enter into cooperative
agreements. AR Tab 2 at 5; see also 76 Fed. Reg. 17451 (Mar. 29, 2011). Subsequently, OSHA
awarded cooperative agreements under the RFA on January 12, 2012. The awards were
protested by ASC and 360Training.com and heard by this Court. See Am. Safety Council, Inc. v.
United States, Nos. 12-210C (Fed. Cl. 2012), 12-355C (Fed. Cl. 2012), and 360Training.com,
Inc. v. United States, No. 12-197C (Fed. Cl. 2012).
In its first opinion, this Court found that the RFA was a “procurement” under 28 U.S.C. §
1491(b)(1), and, therefore, had jurisdiction to hear the protests. 360Training.com, Inc. v. United
States, 104 Fed. Cl. 575, 588 (2012). In its second opinion on the merits, this Court held that
OSHA improperly failed to document its evaluation and improperly disqualified
360Training.com from the competition. 360Training.com, Inc. v. United States, 106 Fed. Cl.
177, 192 (2012). As a result, OSHA took corrective action and canceled the RFA and the
awards. AR Tab 3 at 15.
Following this Court’s ruling, on January 30, 2013, Dr. Payne, drafted a memorandum
entitled “OSHA Outreach Training Program Outsourcing the Delivery of Online Training”
which provided an outline of the issues and recommended solution in developing the revised
solicitation. AR Tab 3 at 14-16; Declaration of Henry A. Payne ¶ 2 (“Payne Dec.”). In his
memorandum, Dr. Payne identified problem areas in the online outreach training program
including: the difficulty to process the applications of providers in a timely manner, the difficulty
to effectively manage the approved training providers, the difficulty in monitoring the training
content on an on-going basis, and the proliferation of resellers and misleading advertising,
causing confusion to the general public. AR Tab 3 at 14.
5
The memorandum also enumerated OSHA’s vendor expectations including: the
development of course content, the implementation of course revisions, hosting courses,
conducting registration and accepting payment, providing trainers for student support, the
issuance of OSHA course completion certificates and cards, training evaluations, to charge
tuition and to pay OSHA a licensing fee for each student registered. AR Tab 3 at 15. It also
included what Dr. Payne termed as “key benefits.” Such benefits included that OSHA: would
be able to reduce the number of online providers eliminating the need for additional Agency
resources for management and oversight, would own the product and have absolute control over
it, and would establish the maximum tuition rates. AR Tab 3 at 15-16. In addition by offering
online Outreach Training Programs only through the Agency, this Dr. Payne opined would
eliminate confusion, misleading advertising, and fraudulent activity among private sector
training organizations. Id.
Dr. Payne presented some of these same benefits to various individuals. For instance, he
presented the benefits directly to the Assistant Secretary of Labor for Occupational Safety and
Health, Dr. David Michaels and Deputy Assistant Secretary, Mr. Jordan Barab. In his
presentation, Dr. Payne reiterated the need to curb confusion among the public, to allow OSHA
to have a perpetual, non-exclusive, royalty–free license to use, copy, and distribute all training
materials developed under the contract in order to have absolute control over the training
content, to manage the number of vendors by limiting the number of awards based on OSHA’s
limited resources and the need to monitor the providers with the ultimate goal that the
technology providers would support the online training offered as an “OSHA branded” program.
AR Tab 5, Payne Dec. ¶ 3. He further provided a variation of his outline and solution
memorandum to the House Committee on Education and the Workforce. AR Tab 5, 10; Payne
Dec. ¶¶ 3-4.
After these presentations, on August 29, 2014, Dr. Payne transmitted the final draft of the
Solicitation to Deputy Assistant Secretary Dougherty. AR Tab 11 at 34.
IV. The Solicitation
On October 1, 2014, OSHA issued the present Solicitation via a Notice in the Federal
Register, through press releases, letters to the incumbent vendors, and letters to all applicants to
the previous RFA. AR Tab 14-16, 18, 19. The Solicitation informed potential offerors that:
Although contracts resulting from this Solicitation will not be funded
with appropriated funds, and the Federal Acquisition Regulation (FAR)
will not apply, the solicitation document utilizes a FAR–type format for
convenience, and incorporates provisions and clauses adapted from those
found in the FAR.
AR Tab 16 at 97.
To be considered, all potential and current OSHA-authorized online providers were
required to submit a proposal under this Solicitation, AR Tab 16 at 100, 101. Further, OSHA
indicated that it would award one or more contracts (up to two per construction, general
6
industry, maritime, and youth programs) for a base year with four, one-year options. AR Tab
16 at 97, 101.
The Solicitation stated that in consideration of performance, only vendors that were
awarded a contract would be OSHA-authorized online providers, and, as such, would be the
only online providers that can issue OSHA course completion cards. Id. In addition, the
Solicitation stated that the awards would be “authorization-type” contracts and not involve any
payment by the Government, AR Tab 16 at 101, and prohibited offerors from charging more
than $99 for any 10-hour course or $199 for any 30-hour course, AR Tab 16 at 101, 104. It
further prohibited reselling. Id. The awardees would be responsible for developing and
teaching the courses based on OSHA’s requirements and industry procedures already on
OSHA’s website, AR Tab 16 at 103, and contained a data rights clause that would permit
OSHA to obtain a license for training materials developed under the contract, AR Tab 16 at
122.
In particular, the data rights clauses stated the following:
H.1 RIGHTS TO DATA
The Contractor agrees to the extent that it receives or is given access to
data necessary for the performance of this contract which contains
restrictive markings, the Contractor shall treat the data in accordance with
such markings unless otherwise specifically authorized in writing by the
Administrative Officer.
DOL will not own, but will have a perpetual, non-exclusive, royalty-free
license to use, copy, distribute, and prepare derivative works from, all
training materials developed for use under this contract.
AR Tab 16 at 122.
I.2 CLAUSES INCORPORATED BY REFERENCE
The texts of the following clauses are incorporated by reference:
CLAUSE TITLE AND DATE
52.227-14 Rights in Data – General. (DEC 2007)
52.227-15 Representation of Limited Rights Data and Restricted
Computer Software. (DEC 2007)
52.227-17 Rights in Data—Special Works. (DEC 2007)
52.227-18 Rights in Data – Existing Works. (DEC 2007)
AR Tab 16 at 125.
7
Potential offerors were also required to provide technical and business proposals,
including providing cost information and identifying past performance references. AR Tab 16
at 131-32. The Solicitation stated that OSHA’s determination of best value would be made by
using the Technical and Past Performance factors, with Technical being slightly more important
than Past Performance. AR Tab 16 at 129-43. In the event of a tie, OSHA would conduct a
realism analysis. Id.
Questions were then submitted by potential offerors, AR Tabs 22, 27, 31, 33, and OSHA
responded, AR Tabs 26, 30, 32, 35, 36. The last OSHA response was dated December 4, 2014.
AR Tab 36.
On December 12, 2014, OSHA received [. . .] proposals. Am. AR Tabs 37-56. Of the [. .
.] proposals received, [. . .] offerors [. . .] submitted proposals for construction, general industry,
or both programs. Am. AR Tab 37 at 352.
V. Standard of Review
This Court's bid protest jurisdiction is provided by the Tucker Act. 28 U.S.C. § 1491(b)
(2012). The Tucker Act provides that, in a bid protest action, the Court reviews an agency's
procurement actions under the standards set forth in the Administrative Procedures Act ("APA"),
5 U.S.C. § 706 (2012). 28 U.S.C. § 1491(b)(4); see Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). Under the APA, the Court
determines, based on a review of the record, whether the agency's decision is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §
706(2)(A). "[A] bid award may be set aside if either: (1) the procurement official's decision
lacked a rational basis; or, (2) the procurement procedure involved a violation of regulation or
procedure." Impresa Construzioni, 238 F.3d at 1332.
Where the parties have filed cross-motions for judgment on the administrative record, as
here, RCFC 52.1 provides a procedure for parties to seek the equivalent of an expedited trial on a
"paper record, allowing fact-finding by the trial court." Bannum, Inc. v. United States, 404 F.3d
1346, 1356 (Fed. Cir. 2005). Unlike summary judgment standards, genuine issues of material
fact do not preclude a judgment on the administrative record. See id. at 1355-56. Questions of
fact are resolved by reference to the administrative record. Id. at 1356.
For injunctive relief, the Court must determine: the plaintiff’s success on the merits,
irreparable harm if the court withholds such relief, the balance of hardships to the respective
parties, and the public interest in granting injunctive relief. Centech Group, Inc. v. United States,
554 F.3d 1029, 1037 (Fed. Cir. 2009).
VI. Discussion
ASC protests the Solicitation’s terms on four grounds. First, ASC argues that the terms
of the Solicitation are unduly restrictive. Second, ASC contends that the Solicitation is
8
inconsistent with customary practice; and third that it is ambiguous.6 Fourth, and finally, ASC
argues that the Solicitation fails to address a conflict of interest. ASC asserts that each of the
challenged terms violate federal procurement law for the reason that OSHA lacked any
legitimate need for the Solicitation’s terms. The question for the Court, therefore, is to
determine whether OSHA had a rational basis for each of the contested terms. If the Court
finds that the procurement official’s decision lacked a rational basis, OSHA’s actions are
deemed to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); 28 U.S.C. § 1491.
A. Competition in Contracting Act (“CICA”) and the Solicitation’s Terms
ASC argues that the Solicitation contains numerous restrictive terms that serve as barriers
to competition in violation of CICA and that the restrictions serve no legitimate need.
Specifically, ASC argues that there is no justification or agency need for the Solicitation’s
Intellectual Property (“IP”) clauses, for limiting the number of awardees, for prohibiting
resellers, for the cost analysis evaluation scheme, or for price cap restrictions.
CICA demands that agencies “create specifications that solicit proposals ‘in a manner
designed to achieve full and open competition.’” CW Gov’t Travel, Inc. v. United States, 99 Cl.
Ct. 666 (2011) citing 41 U.S.C. § 3306(a)(1)(A)–(C) (2011)). In furtherance of this policy of full
and open competition, agencies are allowed to include restrictive requirements in a solicitation
only to the extent they are necessary to satisfy the agency’s legitimate needs. See 41 U.S.C. §
3306(a)(2)(B). The question becomes whether the restrictions are required to meet the
Government’s minimum needs. Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282,
1286 (Fed. Cir. 2010) (“[C]ompetitors do not dictate an agency’s minimum needs, the agency
does.) And determining an agency’s minimum needs is a matter within the broad discretion of
agency officials . . . and is not for [the] court to second guess.” (internal citations and quotations
omitted.)). If the solicitation requirements violate this prohibition the terms are deemed unduly
restrictive. In turn, if a Court finds a solicitation’s terms are unduly restrictive and serve no
legitimate agency need, the Court will find the agency’s decision to include those terms in the
solicitation to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law. Redland Genstar, Inc. v. United States, 39 Fed. Cl. 220, 231 (1997).
Nowhere in the Government’s briefs does the Government contend that CICA does not
apply to this Solicitation; instead, it argues that an agency has broad discretion to determine its
minimum needs and competitors may not dictate those needs. Thus, the Government argues that
none of the challenged terms restrict the competition; instead each of the terms meets OSHA’s
minimum needs and, therefore, the Court should defer to OSHA’s judgment regarding its need.
As a threshold issue, the Government argues that because the agency received [. . .]
proposals the Court need not address the specific issues raised by ASC because this fact alone
6
ASC has withdrawn almost all of its contentions that the Solicitation is ambiguous. See
ASC Reply at 28 n.28. The Court, therefore will only address the remaining ambiguous claim,
the Agency’s cost and pricing evaluation scheme. Id.
9
proves that the terms of the Solicitation are not unduly restrictive. See i.e. CompTech-CDO,
LLC, B-409949.2, 2015 CPD ¶ 62 at 5 (Comp. Gen. 2015) (“In fact, the record here shows that
five firms responded which hold a Top Secret facility clearance, undercutting CompTech’s
argument that the requirement is unduly restrictive.). Although this fact does indeed undercut
the argument that the terms are unduly restrictive, it does not prove that the terms are not unduly
restrictive. It may very well be that even more proposals would have been submitted if the
restrictions in the solicitation were included only to the extent that they were necessary to satisfy
the agency’s legitimate needs. Indeed, the very inclusion in the Act of the qualification on the
extent of the restrictions in a solicitation indicates that the goal of CICA is not just any level of
competition but the best level possible under the circumstances.
Regarding the issues specifically raised by ASC, the Court determines that only the
intellectual property rights terms are unduly restrictive and serve no legitimate agency need as
reflected in the Solicitation. As such, the Court finds OSHA’s decision to include those terms in
the Solicitation to be in violation of CICA and thus arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. The Court finds that the remaining contested terms are
not unduly restrictive and, therefore, the remaining terms do not violate CICA.
1. The Technical Data Rights Clauses are Unduly Restrictive
OSHA has included technical data rights clauses in the Solicitation. See generally
Solicitation Clause H, I. These clauses, ASC argues, are unduly restrictive and do not serve
OSHA’s minimum needs. In particular, ASC contends that OSHA is not an online provider,
therefore, it has no legitimate need for proprietary IP in the form of course content. Pl.’s Mot.
JAR at 13. In addition, ASC argues that the administrative record does not provide a rational
basis for those terms.
In contrast, the Government asserts that ASC’s mere disagreement with these clauses is
not sufficient to demonstrate that they do not reflect the agency’s needs. Def. Cross Mot. JAR at
15. See also Gallup, Inc., B-410126, 2014 CPD ¶ 280 at 5 (Comp. Gen. 2014) (“The fact that a
requirement may be burdensome or even impossible for a particular firm to meet does not make
it objectionable if the requirement properly reflects the agency’s needs.”).
The Court agrees with ASC that the clauses are unduly restrictive because the
requirements do not properly reflect the agency’s needs.
a. Clause H.1 of the Solicitation
The Solicitation included the following data rights clause:
H.1 RIGHTS TO DATA
The Contractor agrees to the extent that it receives or is given access to
data necessary for the performance of this contract which contains
restrictive markings, the Contractor shall treat the data in accordance with
10
such markings unless otherwise specifically authorized in writing by the
Administrative Officer.
DOL will not own, but will have a perpetual, non-exclusive, royalty-free
license to use, copy, distribute, and prepare derivative works from, all
training materials developed for use under this contract.
AR Tab 16 at 122.
This clause was then interpreted by OSHA during the question and answer period. AR
Tab 36. “Training materials” were defined as “course content,” not the software. AR Tab 36 at
346. OSHA further defined “all training materials developed for use under this contract” to
mean “any and all works that form any part of the content, curriculum, or other supporting
documents first developed under or in support of this Contract, and any such works or portions
thereof that are utilized in the performance of this Contract.” Id.; AR Tab 26 at 283. Thus, it is
the Government’s contention that the clause and explanation amended the Solicitation limiting
OSHA to that of only acquiring a license to data that could be copyrighted, not an unlimited
rights license as ASC contends. Def. Cross Mot. JAR at 15-16.
That the clause concerning restrictive markings is connected to a legitimate agency need
is clear on its face. The purpose of the licensing clause, however, is not connected to the goal of
the Solicitation. Indeed, the over-breadth of this clause was recognized by the agency and
limited during the question and answer process to exclude software. The clause, as limited,
would be connected on its face to a legitimate agency need given the goal of the Solicitation—
arguably—if, for example, the license were limited to internal use only. But except for this
example of a need that is inherent, the Court is at a loss to find in the administrative record any
indication of how the acquisition of a broad license in the course content is connected with the
authorization of entities to offer approved online courses. Indeed, the licensing clause gives the
impression that the agency seeks to acquire intellectual property rights. If so, the acquisition of
copyright rights might very well change the nature of the Solicitation.
The Court notes that during the question and answer process, the recommendation of
FAR 27.406-1(c) that the Government avoid unlimited7 data transfer requirements was brought
up in the context of discussion on the breadth of the IP clauses. In response, OSHA first pointed
out that the FAR did not apply to this Solicitation—presumably because the goal was
authorization rather than acquisition—but then OSHA stated that the Rights to Data clause “was
included to allow the agency to use contractor content in the development of other training
materials to support its mission.” AR Tab 36 at 346. This statement indicates to the Court a clear
intent to acquire intellectual property rights for a use independent of the purpose of the
7
In its brief the government makes much of the fact that OSHA is not asking for
unlimited rights because the right to perform publicly and the right to display publicly were not
included. Def. Cross JAR at 15. However, the thrust of 27.406-1(c) is that the government
ought to tailor the data rights it needs to its purposes. Otherwise, an insignificant limitation
(such as the ones pointed out in the brief) would be enough to comply with the provision. A
similar ploy is using a license rather than ownership when the practical effect is the same.
11
Solicitation. Indeed, the agency disclaims any desire to use the IP rights in the online context,
which is the object of the Solicitation. OSHA expressly states that the FAR does not apply to
this Solicitation because it is a solicitation “for professional services” (despite the fact that it uses
FAR provisions throughout). OSHA cannot have it both ways. It is either a solicitation limited
to professional services—in which case the FAR need not apply—or it is also the acquisition of
intellectual property rights—in which case the FAR applies.
The perfectly legitimate goals of approving and monitoring the providers’ courses are
already addressed by less restrictive methods in the Solicitation. For instance, the Solicitation
requires providers, before they even offer a course to the general public, to submit courses for
approval through an OSHA review process. See AR Tab 16 at 115. The Solicitation provides
that OSHA has the authority to review and monitor providers’ courses through the Quality
Assurance Surveillance Plan that will be implemented during the contract performance allowing
OSHA to regularly review the course offerings. AR Tab 16 at 106. The Solicitation allows for
the Inspection of Services, which gives OSHA broad authority to inspect and test all services,
including the providers’ course. AR Tab 16 at 125. These provisions provide OSHA with the
oversight it has stated that it needs. If OSHA wants to include a tailored IP clause, OSHA must
limit that clause to its specific needs. As written, paragraph two of IP clause H is over-
burdensome compared to its purpose to provide and authorize online courses. Furthermore, it
bears the hallmarks of an acquisition to which the FAR would apply. Thus, the Court finds
paragraph two of IP clause H unduly restrictive.
b. Clause I of the Solicitation
Clause I of the Solicitation incorporates by reference four FAR technical data clauses.8
These FAR provisions are incorporated wholesale without any attempt to tailor their provisions
to the purpose of the Solicitation. This is done despite the fact that the provisions were written
for acquisitions and despite the fact that they contain alternate provisions, as is the case with
52.227-14! Furthermore, the Government itself, in its brief, acknowledges that 52.227-15(b) is
irrelevant to the Solicitation. Def. Cross JAR at 17.
The Government valiantly tries to rescue this part of the Solicitation by focusing on
52.227-14(c)(2), the thrust of which is that a contractor should not incorporate data produced by
another without securing the government’s rights in this data. This can, of course, be connected
to unfettered internal use of providers’ materials, which the Court has opined as a legitimate
restriction. But, more important, the very exercise by government counsel in examining various
provisions of the multiple-section FAR provision to find one that is connected to the purpose of
the Solicitation proves that this provision can—and should—be so tailored.
8
The regulations are as follows: (1) 48 C.F.R. § 52.227-14 – Rights in Data – General;
(2) 48 C.F.R. § 52.227-15 – Representation of Limited Rights Data and Restricted Computer
Software; (3) 48 C.F.R. § 52.227-17 – Rights in Data – Special Works; and (4) 48 C.F.R. §
52.227-18 – Rights in Data – Existing Works. AR Tab 16 at 125 (incorporating these clauses by
reference).
12
Thus, the Court determines that the wholesale incorporation of large swaths of the FAR
that concern the acquisition of data rights without any discernable attempt to tailor them to the
purpose of the Solicitation is unduly restrictive and is arbitrary, capricious, an abuse of
discretion, or otherwise in violation of law.
2. The Clauses That Are Not Unduly Restrictive
a. The Required Cost Information is Not Unduly Restrictive
ASC argues that the Solicitation’s cost information basis serves no legitimate agency
need and is unduly restrictive; therefore its inclusion lacks a rational basis. The Court disagrees.
The Solicitation states:
M.4 BUSINESS EVALUATION
Cost is not a weighted factor and will not be scored; it will only be a
factor in the selection if two or more proposals are otherwise equivalent
in Technical Merit and Past Performance. . . . The cost of the proposal
will be evaluated on the basis of cost realism which is defined as the
Offer[or]’s ability to project costs which are reasonable and indicate the
Offeror understands the nature and extent of the work to be performed.
AR Tab 16 at 141.
Inserting a price realism analysis to measure an offeror’s understanding to a Solicitation
is not new. Ceres Envtl. Servs., Inc. v. United States, 97 Fed. Cl. 277, 303 (2011) (“[A]n agency
may, at its discretion, provide for the use of a price realism analysis to measure an offeror's
understanding of the solicitation requirements, or to avoid the risk of poor performance from a
contractor who is forced to provide goods or services at little or no profit.). Here, the Solicitation
is clear: it will only use cost information as a tie breaker between two technically equivalent
offers. Thus, it is not irrational that, if necessary, OSHA may appropriately test an offeror’s
understanding of the Solicitation’s requirements using a realism analysis.9 The Court, therefore,
defers to OSHA in its determination of its needs and finds that the use of a realism analysis is not
unduly restrictive.
b. Limiting the Number of Awardees is Not Unduly Restrictive
9
The real thrust of ASC’s argument is that the cost request is a “burdensome
requirement” and, therefore, the cost information should not be included in the Solicitation. Pl.’s
Resp. and Reply to Def. Cross Mot. JAR at 10. However, just because the requirement may be
burdensome, such a requirement does not make it unduly restrictive.
13
ASC contends that OSHA’s decision to limit the number of contract awards serves no
legitimate agency need and is unduly restrictive; therefore its inclusion lacks a rational basis. The
Court disagrees.
As it has been held, it is within the sound discretion of an agency to determine its
minimum needs and determine the number of contract awards, consistent with a solicitation’s
requirements. See Savantage, 595 F.3d at 1286 (“[C]ompetitors do not dictate an agency’s
minimum needs, the agency does.”); cf. also Sys. Res. & Applications Corp., B-298107 et al.,
2006 CPD ¶ 103 at 10 (Comp. Gen. 2006) (“[W]here multiple awards are contemplated by a
solicitation, the agency is entitled to exercise sound business judgment consistent with the terms
of the solicitation in determining how many awards should be made.”); Cybermedia Techs., Inc.,
B-405511.3, 2011 CPD ¶ 180 at 3 (Comp. Gen. 2011) (dismissing protest for failure to state a
valid protest basis where protester asserted agency should make nine rather than eight awards).
Here, the record supports OSHA’s decision to limit the awards due to limited resources to
oversee the program. AR Tab 3 at 15 (“The reduced number of online providers (4) will
eliminate the need for additional Agency resources for management and oversight.”); AR Tab 5
at 19 (“Addresses key concern of managing a large number of vendors by limiting the number of
awards based on OSHA’s limited resources and the need to monitor providers.”); AR Tab 1 at 1,
2; AR Tab 34 at 334 (In 2009, OSHA implemented the current moratorium on approving new
providers based on a lack of “current resources” and noting that it did not have the “dedicated
resources” to continuously review and approve new programs.); AR Tab 3 at 14 (Dr. Payne’s
outline for the Solicitation explained that OSHA found it difficult to “effectively manage the
growing number of approved training providers” and “monitor the training content on an
ongoing basis.”). Thus, OSHA provided a rational basis for limiting the number of awards.
Even if there was a rational basis for limiting the number of awards, ASC argues that by
limiting the number of awards, OSHA will not be able to meet the increasing demand for online
training in order to meet that need. Therefore, OSHA must award more contracts than the
Solicitation provides. Pl’s Mot. JAR at 20. However, the Solicitation takes this into
consideration by requiring each offeror to demonstrate its technical capability. AR Tab 16 at 138
(“Provide a list of system capabilities, including the number of servers and available
bandwidth.”). Consequently, OSHA does not need many contractors, it only needs between one
and eight awardees with sufficient bandwidth and servers to meet student demand. ASC fails to
show that OSHA’s choice to limit the awards is unreasonable or contrary to law. The Court,
therefore, defers to OSHA in its determination of its needs and finds that the limiting of awards
is not unduly restrictive.
c. Prohibiting Reselling is Not Unduly Restrictive
The Solicitation prohibits the use of resellers. AR Tab 16 at 104. This, ASC argues,
serves no legitimate agency need and is unduly restrictive; therefore its inclusion lacks a rational
basis. ASC further argues that the decision to restrict the use of reseller lacks supporting
evidence. Pl.’s Mot. JAR at 21. According to the Government this prohibition is necessary to
avoid consumer confusion, misleading advertising, and fraud. Def. Cross Mot. JAR at 23.
14
The record contains the memo written by Dr. Payne in contemplation of the current
solicitation. See AR Tab 3 at 14; see also Payne Dec. In his memo Dr. Payne specifically noted
that “problem areas included the proliferation of resellers and misleading advertising, causing
confusion for the general public.” In order to remedy these concerns, OSHA sought to offer
online classes “only through the Agency” to “eliminate confusion about the training provider for
the general public” and “eliminate misleading advertising and fraudulent activity among private
sector training organizations.” AR Tab 3 at 16; see also AR Tab 34 at 335 (“The resale to third
parties is prohibited to ensure transparency to the consumer. This has been a major issue for
OSHA during recent years.”). In addition, Dr. Payne presented these concerns to the Assistant
Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, and Deputy
Assistant Secretary, Mr. Jordan Barab, as well as with the House Committee on Education and
the Workforce. AR Tabs 5, 10; Payne Dec. ¶¶ 3-4.
These statements, argues ASC, are not enough—there is a lack of pre-decisional
documents in the record to show that consumers are confused and there are no contemporaneous
communications to prove this conclusion. Pl.’s Mot. JAR at 21. However, the Federal Circuit
does not require such documentation. Instead, the Federal Circuit has stated that a court may
accept an agency’s concerns without supporting evidence for the concerns. Weeks Marine v.
United States, 575 F.3d 1352, 1370 (Fed. Cir. 2009) (repeating the conclusion from CHE
Consulting that an agency’s “concerns provided a rational basis for [agency’s] procurement,
even though the documents provided no supporting evidence for the concerns expressed”); CHE
Consulting, Inc. v. United States, 552 F.3d 1351, 1355 (Fed. Cir. 2008) (stating an agency “has
no obligation to point to past experiences substantiating its concerns in order to survive rational
basis review” and “CICA imposes no obligation to supply a historical record of failures in order
to substantiate a risk”). Following Circuit precedence, the Court finds that OSHA has expressed
a significant concern regarding consumer confusion, misleading advertising, and fraud and its
decision to prohibit reselling survives rational basis review.10
d. The Price Ceilings are Not Unduly Restrictive
The use of price caps, argues ASC, does not serve a legitimate agency need and is unduly
restrictive; therefore its inclusion lacks a rational basis. Pl.’s Mot. JAR at 25. The Court
disagrees.
An agency may appropriately impose price ceilings or mechanisms on a contractor that
maximize the risk to the contractor and minimize the risk to the Federal Government or its
beneficiaries. Sims v. United States, 112 Fed. Cl. 808, 817 (2013) (stating that “[i]t is within the
discretion of an agency to offer for competition a solicitation that imposes maximum risks upon
the vendor and minimum burdens on the agency”) (citations and internal quotations omitted); cf.
also 48 C.F.R. § 32.704 (recognizing that an agency may impose a ceiling on rates using a
limitation of cost or limitation of funds clause).
10
The Solicitation also incorporates a clause that prohibits kickbacks, 48 C.F.R. §
52.203-7 – Anti-Kickback Procedures – which could prohibit a reseller relationship. See AR Tab
16 at 125 (incorporating clause).
15
In planning the Solicitation, OSHA stated: “OSHA can establish maximum tuition rates
and ensure that the training is provided at a reasonable cost to the general public.” AR Tab 3 at
15; see also AR Tab 5 at 19; AR Tab 10 at 31; Am. AR Tab 34 at 335. The end result was that
the Solicitation limited the tuition price awardees may charge students taking OSHA authorized
online courses – $99.00 for 10-hour courses and $199.00 for 30-hour courses.11 AR Tab 16 at
101.
ASC argues, there is already adequate price competition in the marketplace and will
continue as long as online course providers are available in any number. Id. However, the Court
has already found limiting the number of awardees acceptable. In doing so, the Court has
effectively allowed OSHA to confer, by contract, monopoly or duopoly status on OSHA
authorized providers to teach online courses that result in an OSHA course-completion card.
Consequently, OSHA is not regulating a free market, but creating a regulated market. This
justifies why OSHA would want to regulate the maximum price to be charged. OSHA properly
demonstrated its basis for placing a price ceiling on the rates awardees can charge the public for
providing OSHA-authorized courses. The Court will, therefore, defer to OSHA in determining
its own needs, and finds that the limit is not unduly restrictive.
B. The Solicitation Terms Are Not Inconsistent with Customary Commercial
Practice
As noted previously, when an agency develops a solicitation, the agency must “develop
specifications in the manner necessary to obtain full and open competition with due regard to the
nature of the property or services to be acquired.” 41 U.S.C. § 3306(a)(1)(C). In order to
facilitate full and open competition, the Federal Acquisition Streamlining Act of 1994 (“FASA”)
was enacted to “revise and streamline the acquisition laws of the federal government” and
“facilitate the acquisition of commercial products.” CGI Federal Inc. v. United States, 779 F.3d
1346, 1352 (Fed. Cir. 2015) internal citations omitted; 41 U.S.C. § 3307. FASA is implemented
through FAR Part 12 which requires that “contracts for the acquisition of commercial items
shall, to the maximum extent practicable, include only those clauses” required by law or
“[d]etermined to be consistent with customary commercial practice.” 48 C.F.R. § 12.301(a).
FAR Part 12 further precludes the inclusion of “any additional terms or conditions in a
solicitation or contract for commercial items in a manner that is inconsistent with customary
commercial practice for the item being acquired unless a waiver is approved in accordance with
agency procedures.” 48 C.F.R. § 12.302(c).
Relying on FASA, ASC argues that when OSHA developed this solicitation for the
procurement of commercial items, it was required to include only those terms in solicitations that
11
OSHA prepared an Independent Government Cost Estimate (“IGCE”) to assess an
appropriate price cap based on the average online course prices of existing OSHA-authorized
organizations. AR Tab 6. These price ceilings, as acknowledged by ASC, set the price ceilings
above the current course prices, Pl.’s Mot. JAR 25, allowing awardees to raise their prices up to
the ceiling price in future years. [. . .]. AR Tab 40 at 3736-3737.
16
were “consistent with standard commercial practice.” 41 U.S.C. § 3307(e)(2)(B)(ii); 8 C.F.R. §
12.302; Pl.’s Mot. JAR at 27.
The Government argues that FASA does not apply to the Solicitation because FASA is
only implemented through the FAR and the FAR does not apply to the Solicitation. Def. Cross
Mot. JAR at 30. The Court agrees with the Government.
As ASC seems to have cherry picked sections of the relevant portions of the FASA
statute regarding implementation, the Court has provided the full portion of section 3307(e). 41
U.S.C. § 3307(e), reads in full:
(e) Regulations-
(1) In general.--The Federal Acquisition Regulation shall
provide regulations to implement this section, sections 102,
103, 105, and 110 of this title, and chapter 140 of title 10.
(2) Contract clauses.—
(A) Definition.--In this paragraph, the term “subcontract”
includes a transfer of commercial items between divisions,
subsidiaries, or affiliates of a contractor or subcontractor.
(B) List of clauses to be included.--The regulations prescribed
under paragraph (1) shall contain a list of contract clauses to be
included in contracts for the acquisition of commercial end items. To
the maximum extent practicable, the list shall include only those
contract clauses that are—
(i) required to implement provisions of law or executive
orders applicable to acquisitions of commercial items or
commercial components; or
(ii) determined to be consistent with standard commercial
practice.
41 U.S.C. § 3307(e).
The statute is clear: the Federal statutory preference for commercial items does not apply
because the statute, in section 3307(e)(1), specifically states it applies only through the FAR.
The current Solicitation specifically states that the FAR does not apply. AR Tab 16 at 67.
Therefore, ASC’s argument that the Solicitation must comply with 3307(e)(2)(B)(ii) is without
merit.
Furthermore, the FAR only applies to the acquisition of supplies or services using
appropriated funds. See 48 C.F.R. § 1.104 (emphasis added) (“The FAR applies to all
17
acquisitions as defined in part 2 of the FAR, except where expressly excluded.”). 48 C.F.R. §
2.101 defines acquisition. Acquisition means the acquiring by contract with appropriated funds
of supplies or services. Id. (emphasis added). In the instant case, OSHA does not directly
provide outreach courses to workers and the price for courses is directly paid to the provider.
The Solicitation repeatedly states that the “authorization”-type contracts to be awarded by OSHA
“do not involve payment or compensation by the Government.” See AR Tab 16 at 101; see also
AR Tab 16 at 97 (“contracts resulting from this Solicitation will not be funded with appropriated
funds”); AR Tab 16 at 129 (“These contracts will not involve any compensation or
reimbursement to the Contractor from the government.”); AR Tab 16 at 143 (“this Solicitation
does not provide for payment by the Government to the Contractor”).
It is clear that the Solicitation does not use appropriated funds, therefore the FAR’s
commercial items provision does not apply to this procurement. Therefore, the Court need not
address ASC’s arguments as to whether the Solicitation included terms inconsistent with
customary commercial practice but instead the Court reviews the terms under CICA and whether
the terms serve a legitimate agency need.
ASC raises five terms that are inconsistent. Of the five only two claims remain for
review.12 The first Solicitation term that ASC objects to, requires disclaimer language for third
party websites that refer students to the OSHA-approved training courses with language
identifying the OSHA-authorized training provider. AR Tab 16 at 104. This requirement,
according to the Government, however is already in practice by ASC as they provide a
disclaimer on websites that are not OSHA-authorized or OSHA-approved. Def. Reply at 19.
The second Solicitation term that ASC objects to is the requirement that it must file monthly
reports. AR Tab 16 at 110. ASC contends that it should only be required to provide course
progress reports information to individual students, nothing more. Pl.’s Mot. JAR at 28.
Neither of these terms limits full and open competition. OSHA has determined its needs
and the Court will not second guess it with regard to these terms in the Solicitation.
C. The Terms Are Not Ambiguous
In its reply, ASC has withdrawn all but two of its contentions that the Solicitation is
ambiguous. ASC Reply at 28 n.28. The remaining contentions refer to evaluation scheme
regarding cost and pricing data and the evaluation scheme regarding course price. ASC Reply at
28. With regard to the first contention, ASC asserts that it is unclear when OSHA will evaluate
cost. Id. However, the Solicitation is clear, it states that cost “will only be a factor if two or
more proposals are otherwise equivalent in Technical Merit and Past Performance.” AR Tab 16
at 141, 143.
Its second contention is that the Solicitation does not make clear whether price will be
evaluated in section M.3.E “Administrative Capabilities.” ASC Reply at 28. However, in this
section OSHA enunciates that it will be evaluating an offeror’s administrative capability to
12
The other terms relate to the IP clauses, cost information, and resellers which the Court
has addressed previously.
18
collect tuition and fees, not the underlying price. AR, Tab 16, at 139; see also AR Tab 32 at 324;
AR Tab 36 at 345. Therefore, price is not relevant to this section.
The Court finds these terms not to be ambiguous.
D. OSHA Is Required to Conduct an Organizational Conflict of Interest (“OCIs”)
ASC puts forth the argument that a conflict of interest potentially exists involving
ClickSafety.com and its unequal access to competitively useful information. Pl.’s Mot. JAR at
34. In support of its OCI challenge, ASC relies upon 48 C.F.R. § 9.502(b) which states: “The
applicability of this subpart is not limited to any particular kind of acquisition.” Id. ASC asserts
that FAR Part 9.5 applies because it uses the term “contracts” and this widens the applicability of
the OCI provisions beyond the FAR. Pl.’s JAR Reply at 24-25. However, the FAR applies to
contracts for acquisition – nothing in FAR Part 9.5 or the FAR’s definition of “contract” expands
OCI coverage beyond the entirety of the FAR. See 48 C.F.R. § 1.104; id. § 2.101.
As pointed out previously, the FAR does not apply to this Solicitation. The Court will
therefore entertain ASC’s alternative argument that CICA’s requirement for “full and open
competition” mandates that OSHA consider potential significant OCIs. See 41 U.S.C. §
3301(a). Under CICA, full and open competition is only had where “all responsible sources are
permitted to submit . . . competitive proposals on the procurement.” 41 U.S.C. § 107. The Court
agrees with ASC that under CICA, OSHA is required to perform an OCI evaluation. 13
ASC contends that the OutreachTrainers Website, operated by ClickSafety,
http://www.OutreachTrainers.org, provides ClickSafety with “substantial non-public
information.” Pl.’s Mot. JAR at 34. In particular, ASC argues that as the primary directory for
all Online Training Program courses and trainers for the past seven years, it possesses unequal
access to non-public information. Id. Through this role, ASC asserts that ClickSaftey has access
to information that provides it with a significant competitive advantage in preparing its proposal
to the Solicitation that no other offeror possess.
On the other hand, ClickSafety contends that the information regarding actual demand for
online training and the breakdown of actual course enrollment was made public by OSHA and
was equally available to all prospective offerors, including ASC. Def.-Int. Reply Mot. at 2.
ClickSafety argues that ASC is only speculating that ClickSaftey is privy to more information.
Id. ClickSafety describes the OutreachTrainers Website as a website that only allows visitors to
the site to perform a geographic search for classes within a designated mile radius of a given zip
code. See Def.-Int. Resp. and Reply Declaration of Brian Tonry at ¶¶ 10-11. There is no ability
for visitors to the site to search specifically for online courses and therefore it does not have any
access to data that would give it insight into students’ interest in or demand for online courses.
See id. at ¶ ¶ 11, 12. Thus, argues ClickSafety, the data that can be retrieved is entirely irrelevant
to the online Outreach Training Program.
13
The Government concedes that it did not consider OCIs because OSHA “did not
believe it was required to conduct such analysis.” Def. Cross JAR at 42.
19
It is not the Court’s job to determine whether or not an OCI exists. However, the fact that
ClickSafety maintains the Website for OSHA and is a potential awardee gives the Court pause.
With the facts as presented above, and under the CICA standard of full and open competition, the
Court finds that OSHA’s failure to consider a potential OCI or include a solicitation clause
addressing an OCI is arbitrary and capricious. The fact that ClickSafety may have information
privy only to it is a concern to the Court and one that must be vetted.
Both the Government and ASC agree that the OCI consideration should be done in the
first instance at the Agency level. Therefore, the Court will refer the matter back to OSHA for
the OCI determination. And although FAR Subpart 9.5 is not binding on the Agency in the
instant procurement, OSHA should use FAR Subpart 9.5 as a model for its evaluation as the
FAR represents the most comprehensive expression of the “basic procurement fairness
principles.” See Huntsville Times Co. Inc. v. United States, 98 Fed. Cl. 100, 106 n.6 (2011)
(consulting the FAR in a non-FAR procurement “[t]o the extent that basic procurement fairness
principles are elucidated” therein); see also SUFI Network Servs., Inc. v. United States, 105 Fed.
Cl. 184, 195 (2012) (“[T]he FAR is highly relevant as a guide in the absence of other
guidance.”). Using the FAR to conduct its OCI analysis is consistent with its practice as OSHA
seems to have no compunction regarding using FAR provisions when it is not compelled to do
so: “the solicitation document utilizes a FAR-type format for convenience, and incorporates
provisions and clauses adapted from those found in the FAR.” AR Tab 16 at 97.
E. Injunctive Relief Is Granted
The next step is for the Court to determine whether injunctive relief is warranted. The
Court has determined that OSHA’s actions regarding certain portions of the Solicitation were
arbitrary, capricious, an abuse of discretion, or otherwise in violation of law. Therefore, ASC has
succeeded on the merits. Next, the Court must weigh the plaintiff’s irreparable harm if the court
withholds relief, the balance of hardships to the respective parties, and the public interest in
granting injunctive relief. Centech Group, Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
2009).
ASC has demonstrated irreparable harm. Specifically, ASC will suffer irreparable harm
by suffering a loss of goodwill within the online training industry and the public that relies on
that online training. See Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d
1256, 1263 (10th Cir. 2004); Multi–Channel TV Cable Co. v. Charlottesville Quality Cable
Operating Co., 22 F.3d 546, 552 (4th Cir. 1994) (holding that “when the failure to grant
preliminary relief creates the possibility of permanent loss of customers to a competitor or the
loss of goodwill, the irreparable injury prong is satisfied.”). Additionally, even if ASC was to be
awarded a contract under the current terms, ASC would still be irreparably harmed due to the
unduly restrictive IP clauses and lack of OCI evaluation. Moreover, OSHA will not be harmed
by the issuance of injunctive relief. Although the Court is sensitive to OSHA’s interest to move
forward and make the awards, operating under the status quo will not cause disruption of
delivery of training courses. And finally, the public interest will be served by an injunction by
preserving the integrity of the procurement process. See Cent. Ark. Maint., Inc. v. United States,
68 F.3d 1338, 1343 (Fed. Cir. 1995); Elec. On-Ramp, Inc. v. United States, 104 Fed. Cl. 151, 169
20
(2012) (“[T]he public interest is served by maintaining the integrity of the procurement system
and making sure that procurements are conducted fairly and to maximize competition.”).
VII. Conclusion
For the reasons set forth above, the Court hereby GRANTS IN PART ASC’s Motion for
Judgment on the Administrative Record. The Court finds that OSHA’s inclusion of paragraph
two of IP clause H and the wholesale incorporation of various FAR provisions in IP clause I are
unduly restrictive in violation of CICA and is therefore arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. The Court further finds that the pre-existing
relationship between ClickSafety and OSHA regarding the OutreachTrainers website is a
potential OCI that is inconsistent with the CICA standard of full and open competition. Thus, the
Court GRANTS Plaintiff’s request for a permanent injunction regarding the Solicitation in its
present form. If OSHA wishes to make an award under this Solicitation, it is ordered to correct
and reissue an amended Solicitation such that it complies with CICA as indicated by the Court
and, in addition, it is ordered to conduct an OCI analysis modeled after the appropriate FAR
provisions before any award is made under such an amended Solicitation.
The Court DENIES ASC’s remaining claims. The Court GRANTS IN PART
Defendant’s Cross Motion for Judgment on the Administrative Record with respect to all claims
other than the IP clauses and its failure to perform. The Court further DENIES Defendant-
Intervenor’s Motion for Judgment on the Administrative Record.
ASC’s Motion to Supplement the Record and Motion to File a Sur-Reply are DENIED.
In the event Plaintiff files a bid protest involving a new or amended solicitation that is
related to the Solicitation which is the subject of this opinion the Clerk is directed to assign the
protest to the undersigned.
The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Edward J. Damich
EDWARD J. DAMICH
Senior Judge
21