Status Quo Resumed for Online Training Providers

A U.S. Court of Federal Claims judge's decision initially issued under seal reportedly has caused OSHA to cancel its recent selection of 10 providers of Outreach Training Program courses.

A bid protest filed by, Inc. reportedly has caused OSHA to withdraw its January 2012 selection of 10 organizations to provide the popular online Outreach Training Program courses, including 10- and 30-hour construction courses for construction and general industry and the 10-hour course for maritime. J.J. Keller & Associates reported a letter from OSHA's Directorate of Training and Education said the selection has been cancelled and an upcoming Federal Register notice will announce a new opportunity for training companies to apply.

Judge Edward J. Damich of the U.S. Court of Federal Claims suggested exactly that in his July 13 decision, in which he found OSHA unreasonably rejected the application of 360Training. Damich noted the decision was initially filed under seal so the parties could propose that he redact any proprietary information; the decision was amended and then filed without being sealed on Aug. 3.

360Training had been an authorized online provider of several courses, including 10- and 30-hour courses in construction and general industry, and it submitted five applications before the deadline in OSHA's Request for Applications. Damich agreed with 360Training that OSHA used an evaluation process substantially different from the one described in the RFA; his decision criticizes the agency's process, calling it "mysterious" and lacking documentation. OSHA rejected the company's application because 360Training had been on probation –- the agency said no other provider in the program has been on probation, according to the decision -– but the RFA and other OSHA documents did not explain that past history was an eligibility requirement, Damich wrote.

"The Court also finds that OSHA's decision prejudiced 360 because, had OSHA evaluated all the applications consistent with the evaluation process and selection criteria disclosed in the RFA, 360 stood a substantial chance of award," he concluded.

OSHA had not used this selection process prior to 2011, at which point it had accepted 35 Outreach Training courses provided by 11 organizations. It issued the RFA in March 2011 to increase its quality control of the program. Anyone interested in providing online courses through the program, including then-authorized providers, had to apply in order to be considered.

Damich's decision said 360Training was on probation twice, for six months beginning in March 2010 and for a year beginning in May 2011, for failing to comply with guidelines on advertising by itself and its resellers.

At least one other unsuccessful applicant also filed a bid protest, Damich noted.

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