A little over two years ago, I wrote a blog post about the D.C. District Court decision in Fisher-Cal Indus., Inc. v. United States, 839 F. Supp. 2d 218, 219 (D.D.C. 2012), which held that district courts lack jurisdiction over in-sourcing matters. That case was appealed and the D.C. Circuit Court has affirmed the District Court’s decision. Fisher-Cal Indus., Inc. v. United States, 12-5155, 2014 WL 1362336 (D.C. Cir. Apr. 8, 2014). The D.C. Circuit is now the third circuit court to hold that Federal district courts lack jurisdiction over in-sourcing claims, which must be brought at the United States Court of Federal Claims. See Rothe Development, Inc. v. United States Department of Defense, 666 F.3d 336 (5th Cir. 2011); Vero Technical Support v. U.S. Dep’t of Def., 437 F. App’x 766, 770 (11th Cir. 2011) (unpublished decision).
On appeal, Fisher-Cal argued that the guiding case on the matter, Distributed Solutions, Inc. v. United States, 539 F.3d 1240 (Fed. Cir. 2008), was misapplied by the D.C. District Court and the Fifth and Eleven Circuits because Distributed Solutions looked to the issuance of the request for information as marking the beginning of the process for determining the agency’s needs, and not the internal agency discussions. The D.C. Circuit rejected this argument, reaching the same conclusion as the District Court and the Fifth and Eleventh, that a procurement begins with the process for determining a need for property or services, which includes the decision to acquire the services by in-sourcing or outsourcing. Accordingly, D.C. Circuit held that because the Tucker Act bestows exclusive jurisdiction over suits alleging a procurement violation in the Court of Federal Claims, the District Court properly found that it lacked jurisdiction over the matter.