FRANCIS M. ALLEGRA, District Judge.
In this contract case, plaintiff seeks $365,984.09 for an online training course developed for the Occupational Safety and Safety Administration (OSHA). It alleges, inter alia, that OSHA breached a cooperative agreement when it failed to reimburse plaintiff for costs it incurred in preparing the training materials. Defendant has moved to dismiss plaintiff's complaint under RCFC 12(b)(1) for lack of jurisdiction, and under RCFC 12(b)(6) for failure to state a claim. For the reasons that follow, the court hereby
A brief recitation of the facts provides necessary context.
On March 29, 2011, OSHA issued a "Notice of Competition and Request for Applications" (RFA) for interested organizations to submit applications to apply for authorization to deliver online training courses. See 76 Fed. Reg. 17,451 (Mar. 29, 2011); see also 360Training.com, Inc. v. United States, 106 Fed. Cl. 177, 182 (2012).
On January 10, 2012, OSHA sent a letter to Compliance Solutions "[c]ongratulat[ing]" them "on being selected as an authorized online training provider for [OSHA] Outreach Training Program courses . . . based on [your] capacity to provide quality interactive online training, ability to conduct online OSHA Outreach Training Program courses for workers, and compliance with the program requirements." The letter added that "[OSHA] look[s] forward to the success of your training course" and informed plaintiff that it "[would] be receiving information regarding the implementation process in the near future." In a letter dated March 19, 2012, James Barnes, OSHA's Director of the Office of Training and Educational Programs, notified plaintiff that the agency had "completed its initial review" of the training program. The letter enumerated specific areas requiring revision, as well as other areas for consideration. The letter stated that "[a] complete review of content for accuracy and compliance with OSHA standards will be conducted after the full program has been submitted to OSHA for final approval." The letter, nevertheless, advised plaintiff to "[p]lease proceed with development of your entire 10-Hour Construction program in a manner consistent with the [initial] review comments."
On March 22, 2012, Mr. Barnes forwarded plaintiff a cooperative agreement for review and signature. The cover letter enclosing the cooperative agreement asked plaintiff to "[p]lease review the agreement, have each of the three copies signed by the appropriate official, and return them . . . ." Mr. Barnes further advised plaintiff that "OSHA will sign the copies and return one fully executed agreement to you for your files." The cooperative agreement included signature blocks for both parties, with the signature block for OSHA indicating that the contract would be signed by Kimberly Locey, the Director of Administrative Programs. The unsigned cooperative agreement stated that "OSHA provides no funding to the online training provider for the conduct of OSHA Outreach Training Program online classes or any other purpose under this agreement." The agreement further stated that:
On March 26, 2012, plaintiff executed the cooperative agreement and returned the copies to OSHA. It is unclear when OSHA received the partially signed copies. It is clear, however, that Ms. Locey never signed the agreement; nor did anyone else execute the agreement on behalf of OSHA.
On March 27, 2012, one of the unsuccessful offerors, 360Training.com, filed a post-award bid protest with this court based on its exclusion from award. In March 30, 2012, the court granted the protestor's motion for preliminary injunction, but refused to preclude defendant from allowing awardees of the cooperative agreements (including plaintiff) to proceed. On July 13, 2012, this court held that OSHA had improperly adopted an evaluation process that differed from the process disclosed in the RFA and had improperly disqualified 360Training.com based on undisclosed eligibility requirements. 360Training.com, Inc. v. United States, 106 Fed. Cl. 177 (2012). The court stayed the entry of judgment and the entry of a permanent injunction, until further order. On July 26, 2012, OSHA notified plaintiff that the selection of online training providers had been cancelled. The notice stated that OSHA had "determined that the agency must cancel the March 29, 2011, Federal Register Notice soliciting applications for `Online OSHA Outreach Training Programs.' As a result, the selections of online authorized Outreach Training Program providers which were announced in an OSHA Trade News Release on January 12, 2012 are also cancelled."
On November 1, 2012, Compliance Solutions submitted a certified claim to OSHA under the Contract Disputes Act (CDA), 41 U.S.C. § 7104(b)(1) (formerly § 609(a)(1)). OSHA did not respond to the claim. On March 15, 2013, plaintiff filed its complaint in this court. In that complaint, plaintiff sought a declaration, under the Tucker Act, 28 U.S.C. §§ 1491(a)(1), 1491(b)(1), and under the CDA, requiring OSHA to reimburse plaintiff $365,984.09 for costs associated with the alleged performance of the contract in question. While the complaint listed categories of expenses and lost revenue, it did not reveal when the expenses in question were incurred.
On June 13, 2013, defendant filed its motion to dismiss, which was fully briefed. On March 14, 2014, the court heard argument on the motion.
Deciding a motion to dismiss "starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997)
To survive a motion to dismiss for failure to state a claim under RCFC 12(b)(6), the complaint must have sufficient "facial plausibility" to "allow [] the court to draw the reasonable inference that the defendant is liable." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. 203, 208 (2011), aff'd, 2013 WL 4494383 (Fed. Cir. Aug. 23, 2013). The plaintiff's factual allegations must "raise a right to relief above the speculative level" and cross "the line from conceivable to plausible." Twombly, 550 U.S. at 555, 570; see also Dobyns v. United States, 91 Fed. Cl. 412, 422-28 (2010) (examining this pleading standard). Nevertheless, the Federal Circuit has reiterated that "[i]n ruling on a 12(b)(6) motion to dismiss, the court must accept as true the complaint's undisputed factual allegations and should construe them in a light most favorable to the plaintiff." Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009); see also Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009), cert. denied, 130 S.Ct. 3468 (2010); Petro-Hunt, LLC v. United States, 90 Fed. Cl. 51, 68 (2009).
The initial issue in this case is whether a valid and binding contract was ever formed. To establish the existence of a contract with the United States, Compliance Solutions must demonstrate "a mutual intent to contract including an offer, an acceptance, and consideration," as well as a showing that "the Government representative . . . had actual authority to bind the United States." Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997); see also Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1434 (Fed. Cir. 1998), cert. denied, 525 U.S. 1177 (1999); City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990), cert. denied, 501 U.S. 1230 (1991). The requirements are the same for express and implied contracts. Trauma Serv. Grp., 104 F.3d at 1325; Seven Resorts, Inc. v. United States, 112 Fed. Cl. 745, 779 (2013). Plaintiff, however, has not shown that there was a mutual intent to contract for one simple reason: no authorized official of the United States ever signed the cooperative agreement. On March 22, 2012, OSHA, through Mr. Barnes, sent an unsigned cooperative agreement to plaintiff. That agreement, however, specifically provides that "[t]his agreement is effective upon signature by both parties." On March 26, 2012, plaintiff executed the agreement, returned it to defendant, and proceeded with development of its program. But, defendant never signed the agreement.
Plaintiff argues that its correspondence with OSHA about the development of its programs constituted an acceptance of defendant's offer. It cites the January 10, 2012, letter from OSHA "congratulat[ing]" it "on being selected as an authorized online training provider." Plaintiff further points to correspondence during March 2012 between Mr. Barnes and plaintiff, concerning necessary revisions to plaintiff's programs. It views that correspondence as confirming the existence of a contract. Plaintiff finally argues that its expenditure of funds to develop the program and to respond to OSHA's suggestions is relevant to the question whether a binding agreement exists. But, for the reasons that follow, these arguments are not well-taken.
When the parties contemplate being bound only by a written agreement, the court will not infer a contract without such an agreement. See Peninsula Grp. Capital Corp. v. United States, 93 Fed. Cl. 720, 732 (2010); Pac. Gas & Elec. Co. v. United States, 3 Cl. Ct. 329, 339 (1983) ("[I]in negotiations where the parties contemplate that their contractual relationship would arise by means of a written agreement, no contract can be implied."); see also Gillioz v. United States, 102 Ct. Cl. 454, 466-67 (1944). In this case, a clause in the cooperative agreement plainly stated that the agreement would be effective only upon signature of both the parties ("[t]his agreement is effective upon signature by both parties"). Defendant did not sign the agreement. In a circumstance such as this, the Restatement (Second) of Contracts holds —
Restatement (Second) of Contracts § 26; see also id. at cmt. a; 1 Corbin on Contracts § 2.2 (Joseph M. Perillo, rev. ed. 2003). Plaintiff chose to proceed with development of its program even though it was aware that defendant had not signed the contract. It cannot complain now that its failure to demand the execution of the agreement, nonetheless, gave rise to a contract. See Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 1050 (Fed. Cir. 2001), cert. denied, 538 U.S. 1052 (2003); Gingerich v. United States, 77 Fed. Cl. 231, 242 (2007).
To be sure, certain cooperative agreements may give rise to contracts over which this court may have jurisdiction. See, e.g., Spectrum Sciences v. United States, 84 Fed. Cl. 716, 722-23 (2008); PDR, Inc. v. United States, 78 Fed. Cl. 201, 204-05 (2007). But, the agreement in question, even if signed, did not. This is because the cooperative agreement itself plainly states that it is not an agreement that creates any binding rights or obligations:
Cf. Spectrum Sciences, 84 Fed. Cl. at 722-26. In addition, the cooperative agreement also provides that "OSHA provides no funding to the online training provider for the conduct of OSHA Outreach Training Program online classes or any other purpose under this agreement." Therefore, even if the cooperative agreement had been properly executed, money damages are unavailable, as the contract "expressly disavow[s] money damages." Holmes v. United States, 657 F.3d 1303, 1314 (Fed. Cir. 2011); see also Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008); Ransom v. United States, 900 F.2d 242, 244 (Fed. Cir. 1990).
While the contract itself is plainly not a source of money damages, plaintiff in its complaint and in the argument held on defendant's motion invoked the Federal Grant and Cooperative Agreement Act of 1977, 31 U.S.C. § 6303, inter alia, as a potential source of jurisdiction. Essentially, plaintiff argues that the cooperative agreement is a "procurement" as defined in 31 U.S.C. § 6303; that OSHA, in soliciting applications for online training providers, has engaged in a procurement, and therefore that this court has jurisdiction under 28 U.S.C. § 1491(b)(1). Plaintiff supports its argument by pointing to the court's decision in 360Training.com, 106 Fed. Cl. 177, asserting that the fact that "jurisdiction was proper under this specific and exact set of facts . . . in 360Training.com" somehow confers jurisdiction over this matter. But, 360Training.com was a bid protest matter, brought pursuant to 28 U.S.C. 1491(b), in which the court held that the Notice was issued in connection with the acquisition of property, making bid protest jurisdiction proper. See 360Training.com, 106 Fed. Cl. at 180; see also 28 U.S.C. § 1491(b)(1). Plaintiff's complaint does not assert such a claim here. Nor does it appear that jurisdiction should otherwise obtain here.
Finally, plaintiff asserts that it relied, to its detriment, upon the benefits proposed by OSHA, including (i) a non-financial cooperative agreement with OSHA; (ii) a listing on OSHA's website; (iii) the significant growth in online training and web-based distance learning; and (iv) indirect funding as an awardee authorized to charge fees. In addition, plaintiff contends that based upon its reliance upon the award letter, it incurred in excess of $360,000 in order to prepare for the performance of the anticipated work. The decisional law, however, makes clear that a claim based upon detrimental reliance is one based upon promissory estoppel. Copar Pumice Co., Inc. v. United States, 112 Fed. Cl. 515, 538 (2013); Corrales v. United States, 56 Fed. Cl. 283, 285 (2003). And the same law makes clear that this court lacks jurisdiction over such a claim. Hercules, Inc. v. United States, 516 U.S. 417, 423-24 (1995); Intl Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed Cir. 2007); Sinclair v. United States, 56 Fed. Cl. 270, 281 (2003).
The court will not gild the lily. For the reasons discussed above, the court hereby GRANTS defendant's motion to dismiss under RCFC 12(b)(1) and RCFC 12(b)(6), and orders the Clerk to dismiss the complaint for lack of jurisdiction.