Mgmt. & Training Corp. v. United States

• Decision Date: 29 November 2012
• Docket Number: No. 12-561C,12-561C
• Court: U.S. Claims Court
• Parties: MANAGEMENT & TRAINING CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant.

MANAGEMENT & TRAINING CORPORATION, Plaintiff,

v.THE UNITED STATES, Defendant.

No. 12-561C

United States Court of Federal Claims

Filed Under Seal: November 29, 2012

Reissued for Publication: December 7, 2012^*

BID PROTEST

TO BE PUBLISHED

Pre-Award Bid Protest; Small-Business Set Aside; Contract to Operate Dayton Job Corps Center;

Workforce Investment Act of 1998; Selection of Operators "On a Competitive Basis"; 29 U.S.C. § 2887(a);

Competition in Contracting Act of 1984; "Full and Open Competition"; 41 U.S.C. § 3301; 41 U.S.C. § 3303(b); "Rule of Two";

Reasonable Expectation That At Least Two Responsible Small-Business Concerns Capable

of Performing the Contract Will Submit Offers at Fair Market Prices; FAR 19.502-2(b);

Preliminary Injunction Sought by Large-Business Incumbent Contractor to Stop Issuance

of RFP for Follow-On Contract; Loss of Long-Time Personnel and Community Relations; Preliminary Injunction Denied.

G. Lindsay Simmons, Jackson Kelly PLLC, Washington, D.C., for plaintiff. Hopewell H. Darneille III, Jeffrey R. Cook, Katie Calogero, Jackson Kelly PLLC, Washington, D.C., of counsel.

Michael D. Snyder, Trial Attorney, Patricia M. McCarthy, Assistant Director, Jeanne E. Davidson, Director, Commercial Litigation Branch, Stuart F. Delery, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C., for defendant. David Koeppel, Peter J. Dickson, Department of Labor, Washington, D.C., of counsel.

OPINION AND ORDER

GEORGE W. MILLER, Judge

On September 4, 2012, plaintiff, Management & Training Corporation ("MTC"), filed a complaint (docket entry 1) in this court and applied pursuant to Rule 65 of the Rules of the Court of Federal Claims ("RCFC") for a temporary restraining order and alternatively or in addition moved for a preliminary injunction (docket entry 2). See Compl. for TRO & Prelim. & Perm. Injunctive Relief & Decl'tory J. ("Compl."); Pl.'s Mem. of P. & A. in Supp. of Appl. for TRO & Mot. for Prelim. Inj. ("Mot.") (docket entry 3, Sept. 4, 2012). Defendant filed its response to plaintiff's motion, see Def.'s Opp'n to Pl.'s Mot. for Prelim. Inj. ("Opp'n") (docket entry 20), along with the initial installment of the administrative record ("AR") on October 12, 2012. On November 7, 2012, the Court granted the parties' joint motion to supplement the AR (docket entry 26). Plaintiff submitted its reply in support of its motion (docket entry 27) on November 9, 2012. See Pl.'s Reply to Opp'n to Mot. for Prelim. Inj. & Memo. in Supp. of Mot. J. on [A]R. ("Reply"). Along with its reply, plaintiff also filed a motion for judgment on the administrative record, in which it renewed its request for a permanent injunction. The Court heard oral argument on plaintiff's motion for a preliminary injunction on November 19, 2012.¹ See Tr. of Nov. 19, 2012 Hr'g ("Hr'g Tr.") (docket entry 38, Nov. 29, 2012).

I. Background

A. Facts²

Job Corps is a national residential training and employment program administered by the Employment Training Administration ("ETA") of the United States Department of Labor ("DOL"). AR Tab 1, at 2. Job Corps centers throughout the United States provide technical-skills training to disadvantaged and at-risk youth to prepare them for employment, further education, or the armed forces. AR Tab 1, at 2. The operator of each center is expected to provide "a full range of services, including basic and advanced academic education, career technical (vocational) training, counseling, recreation, behavior management, food services, health services, and transition placement services." Compl. ¶ 13.

MTC operates eighteen Job Corps centers and is a subcontractor on three other Job Corps center contracts. Compl. ¶ 13. It has operated the Dayton Job Corps center (the "Dayton Center") since March 1, 1993, and it will continue to operate the Dayton Centerunder its current contract until April 30, 2013.³ Compl. ¶ 3. Plaintiff alleges that its "outstanding performance of the past 19+ years . . . has effected a stunning change" by lifting the Dayton Center's ranking from ninety-third out of 105 centers in 1992 to third-best in the country in 2010. Compl. ¶ 3. MTC is categorized as a large business by the applicable North American Industry Classification System code. Compl. ¶ 3.

DOL posted a Request for Information ("RFI") on FedBizOpps titled "Sources Sought Notice for Request for Information (RFI) No. DOL121RI20536" on June 27, 2012. AR Tab 1, at 1-4. The RFI required respondents to address their abilities to provide services in twelve "capability areas" listed in the RFI. AR Tab 1, at 2-3. DOL received seven responses, of which one was submitted by a large business and six were submitted by small businesses. AR Tab 10, at 72. Upon receiving the seven responses, the contracting officer prepared a memorandum analyzing each respondent's capability to meet the contract requirements. AR Tab 10, at 71-73. Of the seven respondents, the contracting officer found two small businesses to be "capable." AR Tab 10, at 72.

On August 23, 2012, DOL posted a presolicitation notice on FedBizOpps announcing that the solicitation of proposals for the continued operation of the Dayton Center would be conducted as a small-business set aside. AR Tab 12, at 97-99. This notice also stated that DOL would issue a Request for Proposal ("RFP") on September 6, 2012. AR Tab 12, at 97. On September 4, 2012, MTC filed its complaint seeking declaratory and injunctive relief, as well as its motion for a preliminary injunction. See Compl.; Mot. Specifically, plaintiff requests that the Court issue a preliminary injunction: "(i) to maintain the status quo, (ii) to stop ETA from issuing the RFP, . . . and (iii) to stop ETA from opening and evaluating proposals, and making an award under the RFP, pending the Court's resolution of this pre-award protest." Mot. 1. During a telephonic status conference with the Court on September 5, 2012, DOL voluntarily agreed to stay issuance of the RFP until November 30, 2012. See Opp'n 7. Defendant also agreed not to award a contract under the RFP until this bid protest is resolved. Opp'n 7. The following day, the Court issued an Order (docket entry 11, Sept. 6, 2012) memorializing DOL's agreement and setting a briefing schedule to resolve plaintiff's motion for a preliminary injunction.

B. Applicable Statutes and Regulations

The Workforce Investment Act ("WIA"), Pub. L. No. 105-220, § 147, 112 Stat. 936, 1010 (1998), governs the selection of Job Corps center operators. Section 147, codified at 29 U.S.C. § 2887, reads in relevant part:

Except as provided in subsections (a) to (c) of section 3304 of Title 41,⁴ the Secretary shall select on a competitive basis an entity to operate a Job Corpscenter . . . . In developing a solicitation for an operator or service provider, the Secretary shall consult with the Governor of the State in which the center is located, the industry council for the Job Corps center (if established), and the applicable local board regarding the contents of such solicitation, including elements that will promote the consistency of the activities carried out through the center with the objectives set forth in the State plan or in a local plan.

29 U.S.C. § 2887(a)(2)(A) (Supp. V 2011).

Congress enacted WIA in 1998 in an effort to reform a system of federal job-training programs that had become "a complex patchwork of numerous rules, regulations, requirements, and overlapping bureaucratic responsibilities." S. Rep. No. 105-109, at 2 (1997). The Senate Labor and Human Resources Committee Report also recognized that "frustration and confusion [was] widespread," and because of Congress's "inability to enact reform, States and localities have begun the task of creating their own comprehensive systems which meet the unique needs of their communities. But, they have been frustrated by Federal laws and regulations which prevent them from developing more responsive and effective workforce investment systems." Id. at 2-3. WIA was Congress's answer to an ineffective, complicated body of law governing Job Corps centers (and Job Corp center operator procurements) throughout the United States. See id. at 1-4.

Section 2887 refers to one part of the Competition in Contracting Act ("CICA"), which provides guidelines for competition required in federal procurements. See 41 U.S.C. §§ 3301-3311 (Supp. V 2011). CICA generally requires that procurements be conducted using "full and open competition," subject to certain important exceptions:

Except as provided in sections 3303, 3304(a), and 3305 of this title and except in the case of procurement procedures otherwise expressly authorized by statute, an executive agency in conducting a procurement for property or services shall--

(1) obtain full and open competition through the use of competitive procedures in accordance with the requirements of [Division C of Subtitle I of Title 41] and the Federal Acquisition Regulation; and

(2) use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.

41 U.S.C. § 3301(a). One such exception, § 3303(b), provides that an "executive agency may provide for the procurement of property or services covered by section 3301 of this title using competitive procedures, but excluding other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638, 644)." 41 U.S.C. § 3303(b). Section 644 of Title 15 provides:

To effectuate the purposes of this chapter, small-business concerns within the meaning of this chapter shall receive any award or contract or any partthereof . . . as to which it is determined by the [Small Business] Administration and the contracting procurement or disposal agency (1) to be in the interest of maintaining or mobilizing the Nation's full productive capacity, . . . [or] (3) to be in the interest of assuring that a fair proportion of the total purchases and contracts for

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