A multi-office team led by Atlanta partner Carl Gebo and associate Cecily McLeod obtained a rare, post-award bid protest victory at the United States Court of Federal Claims (CoFC) on behalf of 360training.com.
360 is an industry leader in providing education, including online safety training and certification courses. In January, it lost authority to offer its top-selling courses when the Occupational Safety and Health Administration (OSHA) issued new five-year cooperative agreements to 10 of 360’s competitors but not to 360.
With its corporate life on the line, 360 contacted Edmund Cooke in the DC office in late February. The company’s situation was dire:
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It had only one venue, the CoFC, that could possibly hear 360's challenge;
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the Federal Circuit had recently ruled that the CoFC lacks jurisdiction over protests of cooperative agreements; and
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the CoFC is “highly deferential” to agencies such as OSHA, especially when reviewing bidders’ qualification and past performance evaluations.
The team acted quickly and, in March, filed a formal protest in the CoFC. Within three days of the filing, the team secured a temporary restraining order that required OSHA to treat 360 like an awardee. Then the team defeated the government’s motion to dismiss. In ruling for 360, the judge lifted whole sections of Cecily's brief into his order to establish a new test for protest jurisdiction in the CoFC.
Over the next several months, the team defeated two different motions for contempt leveled against 360. Most importantly, those rulings allowed 360 to continue to develop its private-label courses while unable to sell the disputed Outreach courses online.
On July 13, 2012, Judge Damich of the CoFC issued an order finding in favor of 360 and sustaining the protest.
As a result of the court's order, OSHA rescinded the cooperative agreements awarded to all of 360’s competitors and authorized 360 to sell its top-selling OSHA Outreach courses as it did before January 2012 while OSHA attempts a new solicitation. Finally, the court’s order allows 360 to move to recoup its attorneys' fees in accordance with the Equal Access to Justice Act.
360 described the result as “better than anything we thought possible.” This decision is the first successful post-award bid protest of an agency decision to award a cooperative agreement on the basis of an improper past performance evaluation in COFC history.