Savantage Financial Services, Inc. v. United States

In the United States Court of Federal Claims

No. 14-307C

(Filed Under Seal: August 28, 2015)

(Reissued for Publication: September 3, 2015)*

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SAVANTAGE FINANCIAL SERVICES, * Bid Protest; Financial Management

INC., * Software Systems and Related Services;

* Migration to Federal Shared Service

Plaintiff, * Providers Without Competition;

* Competition in Contracting Act of 1984;

v. * Economy Act; Government Management

* Reform Act of 1994; Subject Matter

THE UNITED STATES, * Jurisdiction; Ripeness; Standing;

* Supplementation of the Administrative

Defendant. * Record; Amendment of Complaint

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Timothy F. Noelker, St. Louis, MO, for plaintiff.

William J. Grimaldi, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

In this bid protest, plaintiff Savantage Financial Services, Inc. challenges the decisions of

the United States Department of Homeland Security (“DHS”) and its components to acquire

financial management software systems and related services without competition.1 Before the

court are defendant’s motion to dismiss, the parties’ cross-motions for judgment on the

administrative record, plaintiff’s motion to supplement the administrative record, and plaintiff’s

motion for leave to file a second amended complaint. As explained in more detail below, the

court concludes that many of plaintiff’s claims should be dismissed on jurisdictional and

justiciability grounds, that plaintiff’s surviving claims lack merit, and that neither

supplementation of the administrative record nor another amended complaint is warranted.

*

The court provided the parties with an opportunity to suggest redactions to this ruling.

However, on September 2, 2015, the parties orally represented to the court that no redactions

were necessary.

1

Although the court attempted to minimize the use of acronyms, it did not eliminate

them altogether. A list of selected acronyms and abbreviations is appended to this Opinion and

Order.

I. BACKGROUND

A. Facts

1. DHS’s Financial Management Software Systems

Plaintiff is one of five companies that sell financial management software systems and

related services to the federal government.2 AR 195-96. Several DHS components use

plaintiff’s software system, and the remaining DHS components use software systems from

among one of the other four companies. Id. Specifically:

• Plaintiff’s software system (Altimate/FFMS3) is used by Immigration and

Customs Enforcement (“ICE”), United States Citizenship and Immigration

Services (“USCIS”), the National Protection and Programs Directorate

(“NPPD”), the Science and Technology Directorate (“S&T”), the Office of

2

The court derives most of the facts in this Opinion and Order from the administrative

record for the amended complaint (“AR”), the original administrative record (“OAR”), and

certain publicly available government documents not included in the administrative record. The

court also derives facts from certain documents contained in the appendix attached to defendant’s

opposition to plaintiff’s motion to supplement the administrative record (“DA”); these

documents are part of the record created by the pertinent DHS components in making the

decision at issue in this bid protest. The court derives the balance of the facts from five of the six

sworn declarations submitted by defendant during these proceedings from Jeffrey Bobich, DHS’s

Director of Financial Management; Mr. Bobich’s first declaration was executed on October 6,

2014 (“First Bobich Decl.”); his second declaration was executed on January 8, 2015 (“Second

Bobich Decl.”); his fourth declaration was executed on February 10, 2015 (“Fourth Bobich

Decl.”); his fifth declaration was executed on July 24, 2015 (“Fifth Bobich Decl.”); and his sixth

declaration was executed on August 17, 2015 (“Sixth Bobich Decl.”). Plaintiff did not object to

the submission of these declarations, and the court finds that consideration of these declarations

is necessary because “the existing record is insufficient to permit meaningful review consistent

with the [Administrative Procedure Act].” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d

1374, 1381 (Fed. Cir. 2009). Finally, the court derives the procedural history from the parties’

filings and its two prior decisions in this matter, Savantage Financial Services, Inc. v. United

States, 118 Fed. Cl. 487 (2014), and Savantage Financial Services, Inc. v. United States, 119 Fed.

Cl. 246 (2014).

3

According to plaintiff’s parent company, Savantage Solutions, Am. Compl. ¶ 3,

Altimate/FFMS “is a modern Oracle-based, production-ready, low cost, federal [financial

management system] solution, without the high price tag of Oracle Federal Financials,” AR

5437.

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Health Affairs (“OHA”), and the Office of the Secretary and Under Secretary

for Management (“DHS Management”).4

• Oracle’s software system (Oracle Federal Financials) is used by the United

States Coast Guard (“Coast Guard” or “USCG”), the Transportation Security

Administration (“TSA”), the United States Secret Service (“Secret Service”),

and the Domestic Nuclear Detection Office (“DNDO”).

• SAP’s software system (MySAP Enterprise Resource Planning) is used by

United States Customs and Border Protection (“CBP”).

• Digital Systems Group, Inc.’s software system (Integrated Financial

Management Information Systems) is used by the Federal Emergency

Management Administration (“FEMA”).

• CGI Group Inc.’s software system (Momentum) is used by the Federal Law

Enforcement Training Center (“FLETC”), the Office of Intelligence and

Analysis (“I&A”), and the Office of Operations Coordination (“OPS”).

Id.

2. The Policy Underlying DHS’s Current Efforts to Modernize Its Financial Management

Software Systems

Over the previous decade, DHS twice attempted to implement a department-wide update

of its financial management software systems. Id. at 8549. Those attempts were unsuccessful,

leading DHS to conclude that a department-wide modernization effort was not viable. Id.

Consequently, as reflected in a September 21, 2011 memorandum, DHS decided to modernize its

financial management software systems on a decentralized, component-by-component basis. Id.

DHS’s Office of the Chief Financial Officer was to oversee the components’ modernization

efforts, and no funds could be expended on modernization until an analysis of alternatives was

presented to DHS’s Management Directorate for approval. Id. at 8549-50. DHS also indicated

that it would “require that all financial system modernizations or upgrade projects deliver core

accounting functionality within 18 to 24 months . . . .” Id. at 8549; accord id. at 995 (noting, in a

September 5, 2013 DHS Acquisition Decision Memorandum titled “Financial System

Modernization,” that each modernization effort “[m]ust . . . deliver core accounting functionality

with[in] 18-24 months of initiation”).

4

As of July 2012, plaintiff’s financial management software system was also used by

United States Visitor and Immigrant Status Indicator Technology (“USVISIT”). AR 176, 195.

However, in 2013, before plaintiff filed this bid protest, USVISIT became the Office of

Biometric Identity Management, and is now a part of NPPD. Fifth Bobich Decl. ¶ 7.

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DHS’s third attempt to modernize its financial management software systems was

informed, in part, by the policies and guidance of the Office of Management and Budget

(“OMB”). For example, in the then-effective version of Circular No. A-127, pertaining to

financial management systems, OMB required executive agencies to consider the use of a federal

shared service provider (“FSSP”) when upgrading or modernizing their financial management

software systems:

7. Service Provider Requirements

A. Use of External Providers

When upgrading to the next major release of its current core financial

system or modernizing to a different core financial system, an agency must

use an external provider which is either [an FSSP] that has been

designated by OMB or a commercial vendor. . . .

....

C. Competitive Process

Agencies are required to hold a competition among the OMB designated

Federal providers and commercial vendors when upgrading their current

core financial system or modernizing to a different core financial system.

D. Competition Exemption

Agencies may be allowed to conduct a non-competitive migration or a

competitive migration involving only commercial providers (if authorized

by law) or OMB designated providers if they prepare a full justification,

generally including the type of information called for by section 6.303-2 of

the Federal Acquisition Regulation [(“FAR”)]. The justification shall be

approved by the agency’s Chief Financial Officer, Chief Information

Officer, and Chief Acquisition [O]fficer. Agencies shall confer with OMB

prior to proceeding with a migration that is noncompetitive or is otherwise

limited in accordance with this paragraph. . . . The justification shall be

documented in the same general manner prescribed in Part 6 of the FAR

for the use of other than full and open competition.

Id. at 64-65; see also id. at 999, 1006-07 (rescinding OMB Circular No. A-127, effective October

1, 2013, and noting that the “requirements for selecting a service provider” were removed “[t]o

narrow the scope” of the document). In addition, in Memorandum M-10-26, issued on June 28,

2010, and titled “Immediate Review of Financial Systems IT Projects,” OMB suggested that the

duration of financial management software system modernization projects “should not exceed 24

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months,” id. at 2, and further indicated its support for the use of shared service providers

(“SSPs”):

• Shared Services. OMB supports shared service arrangements when cost

effective, but will no longer mandate them in all cases for financial

management systems. Past attempts to mandate use of financial management

shared services yielded inconsistent results, as medium and large agencies

encountered the same types of costs and risks with a shared service provider as

they did when modernizing “in house.” . . .

OMB expects the requirements to re-scope agency modernization projects

contained in this guidance will enable greater adoption of shared service

arrangements with lower risk and greater cost impacts.

Id. at 4-5. However, two years later, in a document titled “Federal Information Technology

Shared Services Strategy,” OMB indicated that under its “Shared-First” strategy, executive

agencies were “require[d] . . . to use a shared approach to [information technology] service

delivery.” OAR 3520.

With the OMB guidance as a backdrop, DHS began to develop its own financial

management software system modernization policies. See, e.g., AR 357, 361 (explaining, in an

October 2012 “Financial Systems Modernization Playbook,” that DHS’s financial system

modernization initiative “conform[ed] to OMB’s objective to leverage shared services where

possible”). For example, DHS’s Office of the Chief Financial Officer published a document

titled “DHS Approach to Financial Systems Modernization.” Id. at 176, 179. According to the

July 2012 version of the document, id. at 176, a DHS component choosing to modernize its

financial management software system was required to prepare an analysis of its alternatives, and

have its analysis approved by DHS, before proceeding. Id. at 199.

While DHS was establishing its policies, OMB continued to provide guidance to

executive agencies. In March 2013, OMB issued Memorandum M-13-08, “Improving Financial

Systems Through Shared Services,” in which it “direct[ed] all executive agencies to use, with

limited exceptions, a shared service solution for future modernizations” of their financial

management software systems. Id. It explained:

[T]o leverage existing investments and infrastructure at FSSPs, agencies must

consider, as part of their alternatives analysis, the use of a[n] FSSP with respect to

all new agency proposals for core accounting and mixed system upgrades.

Analysis should not be limited only to an evaluation of commercial SSPs

[(“CSSPs”)]. Instead, the preferred approach is for an agency to evaluate

solutions offered by both FSSPs and [CSSPs] as part of a robust market research

process. As part of their market research, agencies may find that FSSPs have a

good track record of successfully servicing Federal agencies and can provide

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many of the advantages of [CSSPs] through their existing partnerships with

private vendors. To determine the best value source, each agency is expected to

develop an appropriately detailed alternatives analysis of SSP solutions based on

their needs, risk performance and cost.

OMB’s guiding principle will be to support plans that offer the best value

for the Federal Government. OMB will consider funding the use of [CSSPs] as an

appropriate solution if, after reviewing the available [FSSP] and [CSSP] solutions

and using standard requirements, the agency’s business case demonstrates that a

[CSSP] can provide a better value for the Federal Government. In addition,

agency-specific approaches are discouraged and will be considered for funding

only in the rare situation in which an agency demonstrates, through its alternatives

analysis, that exceptional circumstances exist (e.g., legitimately unique agency

requirements or adequate scale within the organization) that make the

agency-specific approach clearly preferable to an SSP solution with respect to

what is the best value for the Federal Government.

Id. at 755-56. OMB also noted that the Office of Financial Innovation and Transformation

(“FIT”) at the United States Department of the Treasury would “play a significant role in

evaluating agency financial system modernization investments when they are proposed and will

provide recommendations to OMB on whether agency systems strategies and modernization

requests align with the government-wide shared service approach.” Id. at 757.

Less than one year later, in January 2014, FIT issued its own guidance regarding the

modernization of financial management software systems: “FIT Agency Modernization

Evaluation (FAME) Process, Guidance and Artifacts.” Id. at 4324-89. In this document, FIT

explained that its “primary responsibilities include[d] establishing a strategy and framework for

agency migration to a shared services model, evaluating new agency proposals and monitoring

the status of agency migrations.” Id. at 4328. The FIT Agency Modernization Evaluation

(“FAME”) process was created to assist FIT’s performance of its responsibilities. Id. The

FAME process includes four phases: (1) identification of needs, (2) assessment, (3) discovery,

and (4) implementation. Id. at 4330-31. During the first phase, an agency is expected to “submit

or update an Agency Modernization Plan” each year that “outline[s] the agency’s business case

and expected [time frame] for modernization”; the plan is submitted to FIT, which then sends a

recommendation to OMB for approval. Id. at 4336. If modernization is appropriate, an agency

moves to the second phase “to identify a preferred FSSP that most closely meets its

modernization needs”; both FIT and OMB must approve the selected FSSP prior to the agency

advancing to the third phase, discovery. Id. at 4342; see also id. at 1359 (“While the FAME

process is geared to [FSSPs], any consideration regarding use of a [CSSP] would also have to be

coordinated with FIT and OMB.”). Once the agency has received the necessary approval, it must

execute an interagency agreement with the FSSP that addresses, among other things, the cost of

the discovery process. Id. at 4347. Once the agreement is approved by FIT, “the agency and the

FSSP engage in identifying the gaps and process differences to ensure the FSSP will be able to

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provide the services requested, including plans to close the gaps and begin planning for the

Implementation Phase.” Id. At the end of the discovery phase, the agency and the FSSP prepare

a report with a recommendation for implementation, which both FIT and OMB must approve.

Id. If all interested parties are in agreement, the agency and the FSSP continue to the fourth

phase, implementation. Id. at 4353. During this phase, the agency and the FSSP execute another

interagency agreement “for implementation of the FSSP products and services required by the

agency.” Id. This interagency agreement, which is reviewed by FIT, includes a statement of

work, a period of performance, terms and conditions, and the cost of implementation. Id.

Implementation then proceeds in accordance with the interagency agreement, with FIT’s

oversight. Id.

DHS’s acquisition process, the Acquisition Lifecycle Framework, is similar to the FAME

process. See Dep’t of Homeland Sec., Directive 102-01, Acquisition Management Directive

§ V.A.1 (2010), cited in First Bobich Decl. ¶¶ 3-4; cf. AR 995 (requiring DHS components to

comply with the DHS acquisition process when modernizing financial management software

systems). In particular, DHS’s process contains the following four phases:

i. Need: identifying the need to be addressed by the acquisition;

ii. Analyze/Select: analyzing the alternatives to satisfy the need and selecting the

best option;

iii. Obtain: developing, testing, and evaluating the selected option and

determining whether to approve production; and,

iv. Produce/Deploy/Support: producing and deploying the selected option and

supporting it throughout the operational lifecycle.

Directive 102-01, § V.A.1. Advancement to each subsequent phase must be approved by a

designated DHS official. Id. §§ V.A.1, VI, VII.A.

With respect to the modernization of financial management software systems, DHS has

established procedures that it believes comply with the FAME process and its own acquisition

process. First Bobich Decl. ¶¶ 3-4; see also AR 1281-83, 1348-50 (describing the various

frameworks applicable to financial management software system modernization). A DHS

component that is prepared to modernize its financial management software system first analyzes

its alternatives. AR 1375. The modernization approaches to be analyzed include use of an

FSSP, use of a DHS SSP, use of a CSSP, and a component-specific approach. Id. at 555. Using

information obtained during its analysis, the DHS component must decide “whether a[n] SSP

approach is the most appropriate and, if so, whether a CSSP or FSSP is preferred.” Id. at 1375.

If the DHS component selects an SSP approach, it then prepares an alternatives analysis to

support its decision. Id. at 1375, 1382; see also First Bobich Decl. ¶ 6 (indicating that the

component will recommend proceeding with either an FSSP or a CSSP). The alternatives

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analysis “is recognized by DHS as the main document that identifies alternat[ive] solutions and

analyzes/compares alternative acquisition approaches or products based on cost, risk and

capability.” First Bobich Decl. ¶ 4. The alternatives analysis must be approved by the

Component Acquisition Executive and the chair of DHS’s Financial Systems Modernization

Executive Steering Committee (“Executive Steering Committee”). Id. ¶ 6; AR 1382; see also

AR 541 (noting that the chair of the Executive Steering Committee is DHS’s Chief Financial

Officer).

If a DHS component obtains approval to proceed with a CSSP or a component-specific

approach, it must then choose the appropriate procurement method, prepare an acquisition plan,

and conduct the procurement. AR 557. If a DHS component obtains approval to proceed with

an FSSP, it selects a discovery partner from the list of FSSPs preapproved by FIT and obtains the

approval of its selected partner from FIT and OMB. Id. at 1382; First Bobich Decl. ¶ 7. Prior to

entering the discovery phase, the DHS component and the approved FSSP execute an interagency

agreement, AR 556, 1376, which must be approved by OMB and the Executive Steering

Committee, id. at 1382. The purpose of the discovery phase is to ascertain the ability of the

FSSP to meet the DHS component’s requirements. First Bobich Decl. ¶ 8. At the conclusion of

the discovery phase, the DHS component and the FSSP jointly decide whether to proceed with

implementation; their decision is documented in a discovery report. Id.; AR 1376, 1381. If they

decide to proceed with implementation, they must obtain the approval of FIT and OMB. AR

1381; First Bobich Decl. ¶ 8. Once OMB has given its approval, the DHS component seeks

“final approval to implement with a new solution or service provider” from the DHS Acquisition

Review Board. First Bobich Decl. ¶ 9; accord AR 1381. With this final approval, the DHS

component and the DHS Office of the Chief Financial Officer can proceed with implementation.

First Bobich Decl. ¶ 9. The DHS component and the approved FSSP execute an interagency

agreement for implementation. AR 1377, 1381. This interagency agreement must be approved

by OMB and DHS’s Under Secretary for Management. Id. at 1381.

3. DHS’s Current Efforts to Modernize Its Financial Management Software Systems

In line with DHS’s decentralized approach to modernizing its financial management

software systems, its components are in various phases of the modernization process. These

efforts are addressed below.

a. DHS Components That Acquire Their Financial Management Software Systems From

ICE

ICE obtains its financial management software system and related services from plaintiff.

First Bobich Decl. ¶ 2; Second Bobich Decl. ¶ 4. Other DHS components, including USCIS,

NPPD, S&T, OHA, and DHS Management, obtain their financial management software systems

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and related services from ICE.5 AR 1341. Due to the proprietary nature of plaintiff’s software

system, only plaintiff can provide support to ICE and its customers. Second Bobich Decl. ¶ 4.

Defendant has represented to the court that ICE and its customers are in various phases of

the modernization process, as follows:

• ICE: As of February 10, 2015, ICE anticipated completing its alternatives

analysis within eighteen months. Fourth Bobich Decl. ¶ 3. As of July 24,

2015, ICE was “working on refreshing [its] market research,” and had not

started work on an alternatives analysis. Fifth Bobich Decl. ¶ 8.

• OHA: As of July 24, 2015, OHA planned to use the solution selected by ICE

and was not working on an alternatives analysis. Fifth Bobich Decl. ¶ 4.

• S&T: S&T has completed its alternatives analysis and received the approval

of the Executive Steering Committee. Fifth Bobich Decl. ¶ 5. On June 25,

2015, FIT notified OMB of its recommendation that S&T be permitted to

proceed in the discovery phase with an FSSP–the United States Department of

Agriculture’s National Finance Center. Id. As of July 24, 2015, S&T and the

National Finance Center had not executed an interagency agreement for

discovery. Id. ¶ 6.

• DHS Management: DHS Management completed its alternatives analysis on

March 19, 2015. DA 56. Its alternatives analysis contained the following

recommendation: “As demonstrated in the value analysis, a CSSP would not

provide significantly better value than a[n] FSSP. In fact, the FSSP alternative

was determined to provide a better value. Therefore, the FSSP alternative is

recommended . . . .” Id. at 103. The chair of the Executive Steering

Committee approved the alternatives analysis on March 26, 2015. Id. at 58,

112. On June 25, 2015, FIT notified OMB of its recommendation that DHS

Management be permitted to proceed in the discovery phase with the National

Finance Center. Fifth Bobich Decl. ¶ 5. As of July 24, 2015, DHS

Management and the National Finance Center had not executed an interagency

agreement for discovery. Id. ¶ 6.

5

Plaintiff contends in its amended complaint that USVISIT also obtains its financial

management software system and related services–supplied by plaintiff–from ICE. Am. Compl.

¶¶ 5, 7. However, as noted above, USVISIT was replaced by the Office of Biometric Identity

Management in 2013, and the new office is part of NPPD. Supra note 4. Defendant represents

that the new office will not independently be seeking to modernize its financial management

software system. Fifth Bobich Decl. ¶ 7.

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• NPPD: NPPD completed its alternatives analysis on April 1, 2015. DA 113.

Its alternatives analysis contained the following recommendation: “While the

results showed that each alternative was feasible for implementation . . . , the

[FSSP] alternative resulted in lower risk and lower cost, especially in

sustainment, from the evaluated results. Therefore, [NPPD] concludes that the

[FSSP] is the preferred best alternative . . . . [It is recommended that] NPPD

pursue an FSSP solution . . . .” Id. at 170. The Executive Steering Committee

approved NPPD’s alternatives analysis. Fifth Bobich Decl. ¶ 5. On June 25,

2015, FIT notified OMB of its recommendation that NPPD be permitted to

proceed in the discovery phase with the National Finance Center. Id. As of

July 24, 2015, NPPD and the National Finance Center had not executed an

interagency agreement for discovery. Id. ¶ 6.

• USCIS: USCIS has completed its alternatives analysis and received the

approval of the Executive Steering Committee. Id. ¶ 5. On June 25, 2015,

FIT notified OMB of its recommendation that USCIS be permitted to proceed

in the discovery phase with the National Finance Center. Id. As of July 24,

2015, USCIS and the National Finance Center had not executed an

interagency agreement for discovery. Id. ¶ 6.

b. DHS Components That Acquire Their Financial Management Software Systems From

the Coast Guard

In contrast to ICE and its customers, the Coast Guard uses the Core Accounting System

(“CAS”)–a highly customized version of Oracle Federal Financials–as its primary financial

management software system. AR 4837. Two other DHS components, TSA and DNDO, obtain

their financial management software systems and related services from the Coast Guard. Id. at

1341. Greater detail regarding the modernization efforts of the Coast Guard, TSA, and DNDO

follows.

i. Alternatives Analyses and Selections of an Alternative

The Coast Guard initiated its financial management software system modernization effort

to address significant weaknesses associated with CAS. Id. at 4837, 4884-85. In a January 23,

2012 alternatives analysis, the Coast Guard evaluated three alternatives, all under the assumption

that TSA and DNDO would remain its customers: (1) fixing the existing version of CAS, (2)

upgrading to a new version of CAS using Oracle Federal Financials or another commercial-off-

the-shelf product (hosting the system internally), and (3) migrating to an SSP. Id. at 4880, 4889,

4898, 4906, 4913. Based on its analysis, the Coast Guard concluded:

Alternative 2 has surfaced with the highest overall Value Score, lowest Risk

Score, and lowest Life Cycle Cost Estimate. Alternative 3 was close in its Value

Score with Alternative 2, but significantly higher in Risk Score and Life Cycle

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Cost Estimate. Alternative 1 was measurably lower in it[s] Value Score

alignment, higher in its Risk Score, and much higher in its overall Life Cycle Cost

Estimate when compared to Alternative 2.

Id. at 4881. The Coast Guard proceeded to evaluate the second and third alternatives in more

detail, and in a November 9, 2012 document titled “CAS Replacement Project Team Course of

Action,” concluded that the second alternative “provided slightly lower risk and slightly higher

value relative to the” third alternative. Id. at 4847, 4849; see also id. at 4838 (“The evaluation of

the Risk and Value selection criteria indicates that the two [courses of action] are equal.”). In

that same document, the Coast Guard compared the cost of hosting the financial management

software system internally with the cost of an SSP hosting the system. Id. at 4849-51. To make

this comparison, it obtained Rough Orders of Magnitude (“ROMs”) from the United States

Department of the Interior’s Interior Business Center, the United States Department of

Transportation, and its own Operations Systems Center. Id. at 4842-43. The Coast Guard

concluded: “The evaluation of ROMs also indicates that the two [courses of action] are equal.

[The Interior Business Center] indicates that additional savings would be realized if DNDO,

TSA, and [the Coast Guard] enter a collective inter-agency agreement.” Id. at 4838. Although

the Coast Guard only considered ROMs from FSSPs, it recognized that both FSSPs and CSSPs

would be considered if the SSP course of action was selected. Id. at 4852. In fact, as reflected in

a November 28, 2012 decision memorandum, the Coast Guard chose the third alternative–

migration of its financial management software system to an SSP. Id. at 5051-54.

TSA issued its alternatives analysis to replace CAS in February 2013. Id. at 2355. TSA

analyzed three alternatives: (1) use of an FSSP, (2) use of a CSSP, and (3) use of a DHS data

center with TSA contractor support. Id. at 2361. To assist in its analysis, TSA sought

information from two FSSPs (the Interior Business Center and the United States Department of

Transportation) and two commercial entities offering Software as a Service. Id. at 2373, 2377.

Upon analyzing the information it had gathered, TSA determined that cost had “minimal

significance in determining the value of the three alternatives,” and accordingly focused on risk

and measures of operational effectiveness (“MOE”). Id. at 2362. TSA concluded:

[A]lthough the MOE and risk ratings of CSSP show it to be the best value for the

Government, the rating variances between CSSP and FSSP are not sufficient

enough to exclude FSSP for further consideration. Therefore, [it is recommended

that TSA] conduct[] a competitive procurement in which both Federal and

Commercial sources submit priced proposals to meet the CAS specific hosting

requirements and that TSA select[] the best source based on the proposals

received.

Id. at 2383; accord id. at 2362; see also id. at 3856 (making this same recommendation in a

March 20, 2013 presentation to DHS’s Asset Management Executive Steering Committee).

However, after issuing its alternatives analysis, but prior to April 10, 2013, TSA determined that

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it could not use a CSSP.6 Id. at 4062, 4069, 4084. Accordingly, TSA decided to migrate to an

FSSP. Id. at 4069, 4084, 4145. Then, once it obtained the necessary approvals of that decision,

id. at 4100, it would, pursuant to OMB Circular No. A-127, either prepare its own justification

supporting its decision to forgo competition and migrate to an FSSP, or join a DHS-sponsored

justification with the Coast Guard and DNDO, id. at 4085, 4105, 4109. TSA obtained approval

for its chosen modernization approach from its Component Acquisition Executive on April 9,

2013, id. at 4227, and from the Executive Steering Committee on May 30, 2013, id. at 2353; see

also id. (stating that TSA concluded in its alternatives analysis “that use of a[n SSP] is the lower

cost, lower risk option and, based on the value analysis, a [CSSP] did not provide significantly

better value than [an FSSP]”); cf. id. at 8553 (reflecting that the Executive Steering Committee

approved TSA’s business case).

DNDO issued its alternatives analysis on June 10, 2013.7 Id. at 2623. It analyzed three

alternatives: (1) use of an FSSP with accounting operations, (2) use of an FSSP without

accounting operations, and (3) use of a commercial services provider. Id. at 2629-30. To assist

in its analysis, DNDO sought information from eight federal and commercial business centers.

Id. at 2636. Upon analyzing the information it had gathered, DNDO concluded that the second

alternative was the preferred alternative because it ranked highest on two of the three decision

criteria (risk and operational effectiveness). Id. at 2672-73. The Executive Steering Committee

approved DNDO’s alternatives analysis on July 25, 2013. Id. at 2619, 5597; see also id. at 2619

(characterizing the conclusion reached by DNDO in its alternatives analysis as: “use of a[n SSP]

is the lower cost, lower risk option and, based on the market research results, a [CSSP] did not

provide significantly better value than a[n FSSP]”); cf. id. at 5596 (reflecting that the Executive

Steering Committee approved DNDO’s business case). DNDO’s Component Acquisition

Executive approved the alternatives analysis on August 13, 2013. Id. at 2621.

While TSA and DNDO were finalizing and seeking approval of their alternatives

analyses, the Coast Guard decided to seek information from commercial vendors regarding the

provision of financial management software systems and related services to improve its

knowledge of the CSSP market. Id. at 761, 5604. Specifically, on May 16, 2013, the Coast

Guard issued a Request for Information to “identify possible available sources able to provide a

Financial Management System (FMS) Software as a Service” and related support. Id. at 5120.

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TSA indicated that it was advised by its Office of Chief Counsel that it could not use a

CSSP “[d]ue to A76,” AR 4084, which appears to refer to OMB Circular No. A-76,

“Performance of Commercial Activities,” dated May 29, 2003. The reference may be a

typographical error; elsewhere TSA indicated that its decision to migrate to an FSSP aligned with

a “recent OMB memo”–Memorandum M-13-08, dated March 25, 2013–because it had concluded

in its alternatives analysis that “commercial is not significantly better than Federal SSP.” Id. at

4084-85; accord id. at 4145.

7

Although the alternatives analysis was prepared by a contractor, AR 2628, the court

will refer to DNDO as the document’s author.

-12-

Eleven commercial entities, including plaintiff’s parent company, Savantage Solutions,

responded to the Coast Guard’s request.8 See generally id. at 5133-57, 5175-391, 5396-457.

Seven respondents “provided information on services that approached the level of service

outlined by the requirements.” Id. at 5473. However, the Coast Guard determined that an

“[a]nalysis of the submitted information indicate[d] a lack of maturity in the Federal

Management [CSSP] market, particularly in the [financial management Software as a Service]-

to-government market.” Id.

After the Coast Guard reviewed the responses to its Request for Information, it sought

supplemental information from the Interior Business Center. Id. at 5458, 5579. It did not request

such information from the three other FSSPs because they lacked the capability to serve the

Coast Guard’s needs. Id. at 5579. The Interior Business Center responded on June 10, 2013. Id.

at 5459-66.

It is apparent that by July 3, 2013, the Coast Guard, TSA, and DNDO decided to proceed

with a combined justification in support of their independent decisions to forgo competition and

migrate to an FSSP. On that date, the Coast Guard submitted to the Executive Steering

Committee a “Justification for Competition Exemption” (“A-127 Justification”). Id. at 5580-84.

In that memorandum, the Coast Guard discussed the reason for pursuing financial management

software system modernization, the alternatives analyses conducted by the three DHS

components, its market research, the conclusions drawn from the market research, and the

rationale for choosing an FSSP. Id. at 5581-84. It concluded:

Pursuant to the OMB Circular No. A-127 Section 7.D Competition Exemption,

agencies may be allowed to conduct a non-competitive migration. Based on the

collective market research and consideration of schedule, cost and performance

risks outlined above, it is determined that a[n] FSSP will be used to migrate

USCG/TSA/DNDO [financial management systems].

Id. at 5584. Ultimately, in accordance with section 7.D of OMB Circular No. A-127, this

conclusion was endorsed by the Chief Financial Officers, Chief Information Officers, and Chief

8

The other commercial respondents included Accenture Federal Services LLC, AR 230;

APG Intel, LLC, a CACI Company (“APG Intel”), id. at 5175; CGI Federal Inc., id. at 5196;

Computer Sciences Corporation, id. at 5291; Deloitte Consulting, LLP, id. at 5313; Digital

Systems Group, Inc., id. at 5321; Global Computer Enterprises, Inc., id. at 5367; IBM U.S.

Federal, id. at 5396; NEW WORLD APPS, Inc., id. at 5420; and SAP National Security

Services, id. at 5430.

-13-

Acquisition Officers of the Coast Guard, TSA, and DNDO.9 Id. at 984, 988; see also id. at 5591-

92 (TSA’s concurrence).

Meanwhile, on July 11, 2013, the Coast Guard issued its business case for financial

management software system modernization. Id. at 2597-618. In that document, the Coast

Guard examined its alternatives analyses, the alternatives analyses prepared by TSA and DNDO,

and its market research. Id. Based on that information, the Coast Guard “concluded that a

9

Plaintiff asserts that “DNDO never approved, or concurred with,” the A-127

Justification, based on the fact that the administrative record does not contain any documents

generated by DNDO reflecting its approval or concurrence. Pl.’s Mot. for J. on the AR 19.

While the administrative record may not contain primary evidence of DNDO’s approval or

concurrence, it does contain secondary evidence:

• FIT’s representation to OMB that DNDO’s Chief Financial Officer, Chief

Information Officer, and Chief Acquisition Officer “approved this migration

in accordance with OMB Circular A-127, Section 7.D,” AR 988; cf. id. at 989

(indicating that DHS officials were provided copies of the document

containing this representation);

• DHS’s representation that “DHS and USCG/TSA/DNDO have approved the

justification required by OMB Circular A-127 to migrate the

USCG/TSA/DNDO financial system to [an FSSP],” id. at 2677; and

• DNDO’s Chief Financial Officer’s representation to FIT on July 25, 2013, that

DNDO was “ready to begin the Discovery Phase,” id. at 3408, 3417-18.

It is highly unlikely that FIT and DHS would have represented that the DHS components had

complied with section 7.D of OMB Circular No. A-127 had the representation not been true, or

that DNDO’s Chief Financial Officer would have indicated that DNDO was ready to proceed

with discovery had he not previously given his approval in accordance with section 7.D of OMB

Circular No. A-127. Indeed, FIT, DHS, and DNDO’s Chief Financial Officer are entitled to the

presumption that their representations were accurate and that they complied with the applicable

statutes and regulations. See U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (noting that “a

presumption of regularity attaches to the actions of Government agencies”); Schism v. United

States, 316 F.3d 1259, 1302 (Fed. Cir. 2002) (en banc) (“This presumption of regularity is the

supposition that public officers perform their duties correctly, fairly, in good faith, and in

accordance with law and governing regulations, and is valid and binding unless ‘well-nigh

irrefragable proof rebuts or overcomes it.’” (citation omitted) (quoting Alaska Airlines, Inc. v.

Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993))). Plaintiff has not identified any evidence, either

within or outside of the administrative record, suggesting that DNDO did not approve or concur

with the A-127 Justification. Accordingly, the court finds that DNDO approved the A-127

Justification.

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transition to a[n] FSSP was the best course of action to address [financial management system]

deficiencies and was in the best interest of the government.” Id. at 2599. Then, on July 17,

2013, the Coast Guard issued an updated alternatives analysis that incorporated its findings from

TSA’s and DNDO’s alternatives analyses and its market research. Id. at 5585-89. The

conclusion it reached was nearly identical to the conclusion set forth in its business case: “As a

result of its multiple analysis efforts described above, . . . an interagency acquisition to transition

to a[n] FSSP is the best course of action to address [financial management system] deficiencies

and is in the best interest of the government.” Id. at 5589. The Executive Steering Committee

approved the Coast Guard’s business case and/or course of action on July 25, 2013. Id. at 5596-

97; accord id. at 5628 (containing the assertion of DHS’s Chief Financial Officer that the Coast

Guard “has concluded that use of [an SSP] is the lower cost, lower risk option and, based on the

market research results, a [CSSP] did not provide significantly better value than [an FSSP]”).

As reflected in an August 16, 2013 memorandum, FIT approved the decisions of the

Coast Guard, TSA, and DNDO to migrate their financial management software systems to an

FSSP, as well as their decisions to enter the discovery phase with the Interior Business Center.

Id. at 4265. On that same date, OMB indicated that it had no objections to the DHS components’

entry into the discovery phase with an FSSP. Id. at 4264.

ii. Discovery

Prior to the Coast Guard, TSA, and DNDO obtaining the necessary approvals to proceed

to the discovery phase, they began meeting with the Interior Business Center to discuss the

discovery process. Id. at 952-55. Once they obtained these approvals, DHS executed two

documents in support of its intent to enter into an interagency agreement with the Interior

Business Center to enable the Coast Guard, TSA, and DNDO to engage in the discovery process:

a “Determination of Best Procurement Approach” pursuant to FAR 17.502-1, id. at 2677-81, and

a “Determination and Findings” (“D&F”) in support of the execution of an interagency

agreement pursuant to the Economy Act, id. at 2683-85. In both documents, DHS indicated that

the Interior Business Center “uses a combination of federal employees and commercial

contractors to complete the ‘Discovery’ process” and that “[t]he commercial contractor portion of

this requirement will be provided through a task order issued under existing [Interior Business

Center] contracts . . . .”10 Id. at 2677-78, 2683. DHS further stated in the D&F that “[t]he

10

Notwithstanding the stated intent to issue a task order, the evidence in the

administrative record reflects that the Interior Business Center ordered services from its

contractor using contract line items–labeled “tasks”–enumerated in a bridge contract and in

modifications of that bridge contract. See AR 7144-51 (containing the bridge contract’s schedule

of supplies and services), 7534-38 (containing the schedule of supplies and services in

modification 0001 of the bridge contract), 7574-77 (containing the schedule of supplies and

services in modification 0002 of the bridge contract), 7599-600 (containing the schedule of

supplies and services in modification 0003 of the bridge contract). Indeed, the bridge contract

was not referred to as a task order contract, but as a contract with “Firm Fixed Price and Labor

-15-

acquisition [would] appropriately be made under an existing contract of the [Interior Business

Center], entered into before placement of the order, to meet the requirement of the [Interior

Business Center] for the same or similar supplies or services.” Id. at 2683.

DHS executed the “Determination of Best Procurement Approach” and the D&F on

September 9, 2013. Id. at 2679, 2684. On that same date, DHS and the Interior Business Center

executed an interagency agreement for the discovery phase pursuant to the Economy Act. Id. at

2687-89. The agreement incorporated a Statement of Work that described the work to be

performed by the Interior Business Center as: presenting to the Coast Guard, TSA, and DNDO

the services it provides; reviewing and defining the requirements of the Coast Guard, TSA, and

DNDO; analyzing the gaps between the services and requirements; and recommending a solution

by which it could meet the needs of the Coast Guard, TSA, and DNDO. Id. at 2708. The total

amount of the agreement was $2,995,000; of that amount, $2,055,000 was set aside for

“[c]ontractor support for discovery phase services,” $880,000 was set aside for “[f]ederal support

for discovery phase services,” and the remaining $60,000 was set aside for travel. Id. at 2689.

Prior to the execution of the interagency agreement, the Interior Business Center had a

contract with APG Intel under which APG Intel was required to, among other things, perform

discovery activities for the Interior Business Center’s clients. Id. at 7130. This contract expired

on July 31, 2013, while the Interior Business Center was recompeting the requirement. Id.

Because it was necessary for the Interior Business Center to provide discovery-related services in

the interim, it awarded APG Intel a bridge contract on September 11, 2013, with an effective date

of September 25, 2013. Id. at 7144. In the bridge contract, the parties identified eleven agencies

for which APG Intel’s services might be required, along with not-to-exceed pricing for each

agency. Id. at 7153-54. However, upon the execution of the bridge contract, the Interior

Business Center only ordered services for three of those agencies. Id. at 7150-51. Specifically,

the bridge contract’s schedule of supplies and services included the following three line items:

(1) “Task 3-1 TSA Discovery Phase of Implementation,” (2) “Task 3-2 DNDO Discovery Phase

of Implementation,” and (3) “Task 3-3 USCG Discovery Phase of Implementation.” Id. The

bridge contract’s period of performance was three months, with four three-month option periods.

Id. at 7155. The total award amount of the bridge contract was $655,188.30, id. at 7144, but if

the Interior Business Center exercised all of the options, the total cost to the government would

be $56,043,015.17, id. at 7153; cf. id. at 7534-36 (modifying the bridge contract to increase

funding for the discovery phase tasks from $30,000 to $2,031,193.18), 7574 (modifying the

bridge contract to increase funding for the discovery phase tasks by $87,384.03).

The discovery phase officially spanned from September 2013 to September 2014. Id. at

7599. In the discovery report, which was issued on July 15, 2014, id. at 2038, the Coast Guard,

Hour line items (Hybrid) distinguished by task assignment as identified in [the Performance

Work Statement].” Id. at 7171; accord id. at 7153 (“This contract will be issued as a Hybrid

Contract, with Firm Fixed Price Line Items, and Labor Hour Line [Items] as distinguished by

task assignment as identified in the attached [Performance Work Statement].”).

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TSA, and DNDO recommended proceeding with the Interior Business Center as their FSSP for

financial management software systems, “provided the risks outlined in [the report were] fully

understood and their mitigation plans [were] fully supported by all signatories and key

stakeholders.” Id. at 2047. The discovery report was approved by the Coast Guard, TSA,

DNDO, and DHS. Id. at 2039-44. FIT approved the report on August 18, 2014, id. at 2044, and

OMB indicated its approval on August 22, 2014, id. at 1708.

iii. Implementation

In anticipation of receiving the necessary approvals, DHS and the Interior Business

Center began laying the groundwork for implementation. For example, in May 2014, DHS

provided the Interior Business Center with a performance work statement and the Interior

Business Center supplied DHS with its projected schedule and estimated costs. Id. at 8747; see

also id. at 8750 (noting estimated costs of $79.9 million), 8751 (reflecting that DNDO would “go

live” in October 2015, TSA would “go live” in October 2016, and the Coast Guard would “go

live” in October 2017).

DHS and the Interior Business Center also engaged in discussions regarding the technical

requirements of the interagency agreement for the implementation phase. See, e.g., id. at 1824-

25 (summarizing the discussion concerning development of an acquisition plan); id. at 1830

(addressing the statutory authority that the Interior Business Center uses for its interagency

agreements). Of particular note, they agreed that the interagency agreement would be issued

under the authority of the Government Management Reform Act of 1994, and not the Economy

Act. Id. at 1705, 1830, 2014. They further agreed that the interagency agreement would not be

for a direct acquisition or an assisted acquisition. Id. at 1830, 2013. Rather, the interagency

agreement would be for nonacquisition assistance because the Interior Business Center would not

be issuing any type of contract or task order on DHS’s behalf. Id. at 1824-25, 1830, 2013.

On July 18, 2014, while DHS and the Interior Business Center were discussing the

technical requirements of the interagency agreement for implementation, DHS executed, “in

accordance with” the FAR, another “Determination of Best Procurement Approach.” Id. at 1863-

65. In that document, DHS indicated its intent to enter into an interagency agreement with the

Interior Business Center, noted that the agreement would be executed under the Government

Management Reform Act of 1994, and represented that executing the agreement was in the best

interest of the government. Id. at 1863-64. However, DHS later determined that it was not

required to execute a “Determination of Best Procurement Approach” because the FAR did not

apply to nonacquisition interagency agreements such as the one it would be executing with the

Interior Business Center. Id. at 2014.

On August 5, 2014, the DHS Acquisition Review Board approved the acquisition of

financial management software systems from the Interior Business Center. Id. at 1449. Three

days later, the Interior Business Center submitted its best and final offer to DHS. Id. at 2078.

Ultimately, on August 26, 2014, DHS and the Interior Business Center executed an interagency

-17-

agreement for implementation pursuant to the Government Management Reform Act of 1994.

Id. at 8504. The total amount of the agreement, if all options were exercised, was $79,218,548.

Id. at 8508; accord id. at 2017. On September 3, 2014, the Interior Business Center modified its

existing bridge contract with APG Intel to authorize APG Intel to assist in the implementation

phase, id. at 7601, rather than ordering the work under the contract that replaced the expired

contract with APG Intel, which had been awarded to i360technologies, Inc. in December 2013,

id. at 8280.

c. Other DHS Components

The record before the court contains the following limited information regarding the

remaining DHS components:

• FLETC, I&A, and OPS: FLETC issued an alternatives analysis on August 9,

2013. DA 1. At that time, FLETC used a financial management software

system developed by CGI Group Inc., id. at 24, and supported two

customers–I&A and OPS, id. at 5, 13; AR 1341. In its alternatives analysis,

FLETC concluded that it should upgrade its existing financial management

software system rather than migrate to a CSSP or an FSSP. DA 5. The chair

of the Executive Steering Committee approved the alternatives analysis on

September 11, 2013. Id. at 49. FLETC issued a solicitation, id. at 1187, and

awarded a contract for the upgrade on April 11, 2014, Sixth Bobich Decl. ¶ 5.

As of August 17, 2015, I&A and OPS continued to be customers of FLETC.

Id. ¶ 6. They have not independently prepared alternatives analyses or

executed interagency agreements for discovery. Id.

• CBP: CBP intends to upgrade its hardware, database, and operating system

beginning in August 2015. Id. ¶ 3. It has no plans to replace its financial

management software. Id. FIT is aware of CBP’s plans and has represented

that its oversight is not necessary. Id.

• FEMA: FEMA is currently in the second phase of the FAME process, and has

not yet completed an alternatives analysis or executed an interagency

agreement for discovery. Id. ¶ 4.

• The Secret Service: The Secret Service has an existing contract, with a period

of performance of April 2012 to April 2017, that covers technical upgrades to

its financial management software system. Id. ¶ 7. It has not prepared an

alternatives analysis or executed an interagency agreement for discovery. Id.

-18-

B. Procedural History

Plaintiff originally lodged this bid protest on April 16, 2014. In its complaint, it

contended that OHA had obtained a new financial management software system and related

services via an improper sole-source procurement, and that OHA had violated the relevant OMB

requirements by failing to conduct an alternatives analysis or prepare a justification. Plaintiff’s

three claims for relief all concerned OHA’s modernization efforts. After plaintiff filed its motion

for judgment on the administrative record, OHA initiated corrective action by cancelling the

proposed migration of its financial management software system, and proclaiming its intent to re-

evaluate its options for obtaining the required services. Defendant accordingly moved to dismiss

the protest. The court granted defendant’s motion in its August 26, 2014 Opinion and Order,

holding that because the claims and relief described in plaintiff’s complaint pertained only to

OHA’s proposed migration, the corrective action described by defendant rendered plaintiff’s bid

protest moot.

The day after the court dismissed plaintiff’s bid protest, plaintiff moved to vacate the

court’s decision and for leave to amend its complaint to challenge the actions that DHS and its

components had taken to migrate the components’ financial management software systems. The

court granted plaintiff’s motion in a November 19, 2014 Opinion and Order. Plaintiff thereafter

filed an amended complaint setting forth three claims for relief, all based on its contention that

DHS components, including the Coast Guard, TSA, DNDO, ICE, NPPD, and S&T, decided to

acquire, or to execute agreements with SSPs to acquire, financial management software systems

and related services without providing it with the opportunity to compete. Specifically, in its first

claim for relief, plaintiff contends that DHS components violated the requirement of the

Competition in Contracting Act of 1984 to obtain full and open competition through the use of

competitive procedures. In its second claim for relief, plaintiff contends that DHS components

violated (1) the requirements set forth in FAR subpart 6.3 that procuring agencies justify,

approve, and publish notice of their use of other than full and open competition and (2) the

requirements set forth in FAR subpart 17.5 regarding acquisitions through interagency

agreements. In its third claim for relief, plaintiff contends that DHS components acted

arbitrarily, capriciously, with an abuse of discretion, and contrary to law.

Defendant filed the administrative record for the amended complaint on March 6, 2015.

Plaintiff subsequently filed a motion to supplement the administrative record, a motion for leave

to file a second amended complaint, and a motion for judgment on the administrative record.

Defendant, in turn, filed a motion to dismiss and a cross-motion for judgment on the

administrative record. The parties have fully briefed all of the pending motions and the court

heard argument on August 27, 2015.

-19-

C. Relevant Statutes and Regulations

Because two of plaintiff’s claims for relief concern whether DHS and its components

have, and are, complying with the statutes and regulations related to the use of noncompetitive

acquisition procedures, a brief summary of the pertinent statutes and regulations is required.

1. The Competition in Contracting Act of 1984

Under the Competition in Contracting Act of 1984, when a federal executive agency

conducts a procurement for property or services, it normally must “obtain full and open

competition through the use of competitive procedures in accordance with” the pertinent statutes

and the FAR. 41 U.S.C. § 3301(a)(1) (2012); accord FAR 6.101 (2014). However, an executive

agency may use noncompetitive procedures in certain specified circumstances, see 41 U.S.C.

§ 3304(a); FAR 6.301(a); FAR 6.302, or when they are “expressly authorized by statute,” 41

U.S.C. § 3301(a); accord id. § 3304(a)(5); FAR 6.302-5.

If an executive agency plans to use noncompetitive procedures, it may not do so until (1)

“the contracting officer for the contract justifies the use of those procedures in writing and

certifies the accuracy and completeness of the justification”; (2) if the amount of the contract

exceeds $500,000, the appropriate agency official approves the justification; and (3) any required

notice is published. 41 U.S.C. § 3304(e)(1); accord FAR 6.303-1; FAR 6.304. Moreover, “[i]n

no case may an executive agency . . . procure property or services from another executive agency

unless the other executive agency complies with [the pertinent statutes] in its procurement of the

property or services.” 41 U.S.C. § 3304(e)(5)(A).

The justification required to use noncompetitive procedures must include the following

information:

(1) Identification of the agency and the contracting activity, and specific

identification of the document as a “Justification for other than full and open

competition.”

(2) Nature and/or description of the action being approved.

(3) A description of the supplies or services required to meet the agency’s needs

(including the estimated value).

(4) An identification of the statutory authority permitting other than full and open

competition.

(5) A demonstration that the proposed contractor’s unique qualifications or the

nature of the acquisition requires use of the authority cited.

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(6) A description of efforts made to ensure that offers are solicited from as many

potential sources as is practicable . . . .

(7) A determination by the contracting officer that the anticipated cost to the

Government will be fair and reasonable.

(8) A description of the market research conducted . . . and the results or a

statement of the reason market research was not conducted.

(9) Any other facts supporting the use of other than full and open competition

....

....

(10) A listing of the sources, if any, that expressed, in writing, an interest in the

acquisition.

(11) A statement of the actions, if any, the agency may take to remove or

overcome any barriers to competition before any subsequent acquisition for the

supplies or services required.

(12) Contracting officer certification that the justification is accurate and

complete to the best of the contracting officer’s knowledge and belief.

FAR 6.303-2(b); accord 41 U.S.C. § 3304(e)(2). The executive agency must, in most cases,

make the justification publicly available within fourteen days of contract award. 41 U.S.C.

§ 3304(f)(1); FAR 6.305.

2. The Economy Act

As previously noted, executive agencies can avoid obtaining full and open competition if

an alternative procurement procedure is set forth in another statute. See 41 U.S.C. § 3301(a).

One such statute is the Economy Act, which provides that an agency “may place an order with a

major organizational unit within the same agency or another agency for goods or services if”:

(1) amounts are available;

(2) the head of the ordering agency or unit decides that the order is in the best

interest of the United States Government;

(3) the agency or unit to fill the order is able to provide or get by contract the

ordered goods or services; and

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(4) the head of the agency decides ordered goods or services cannot be provided

by contract as conveniently or cheaply by a commercial enterprise.

31 U.S.C. § 1535(a) (2012). The FAR applies to Economy Act agreements “when one agency

uses another agency’s contract to obtain supplies or services,” but not when “the interagency

transaction does not result in a contract or an order . . . .” FAR 17.502-2(a); accord FAR 17.500

(noting that FAR subpart 17.5 applies to interagency acquisitions and not to “[i]nteragency

reimbursable work performed by Federal employees (other than acquisition assistance) or

interagency activities where contracting is incidental to the purpose of the transaction”). If the

FAR applies, an agency planning to order goods or services from another agency must first

determine that “an interagency acquisition represents the best procurement approach.” FAR

17.502-1(a)(1). That determination must include “an analysis of procurement approaches” and

“an evaluation . . . that using the acquisition services of another agency (i) [s]atisfies the

requesting agency’s schedule, performance, and delivery requirements, (ii) [i]s cost effective, and

(iii) [w]ill result in the use of funds in accordance with appropriation limitations and compliance

with the requesting agency’s laws and policies.” Id.

In addition, the requesting agency must support its order with a D&F.11 FAR 17.502-

2(c)(1). The D&F must contain statements affirming that the acquisition is in the government’s

best interest and that a commercial acquisition would be less convenient and more expensive. Id.

It must also contain a statement that one of the following three circumstances applies to the

acquisition:

(A) The acquisition will appropriately be made under an existing contract of the

servicing agency, entered into before placement of the order, to meet the

requirements of the servicing agency for the same or similar supplies or services.

(B) The servicing agency has the capability or expertise to enter into a contract

for such supplies or services that is not available within the requesting agency.

(C) The servicing agency is specifically authorized by law or regulation to

purchase such supplies or services on behalf of other agencies.

Id. The D&F must be approved by a contracting officer from the requesting agency, and it must

be provided to the servicing agency with the order. FAR 17.502-2(c)(2) to (3).

11

The relevant regulations do not appear to prevent the requesting agency from

combining the determination required by FAR 17.502-1(a)(1) and the D&F required by FAR

17.502-2(c)(1) in one document. However, it is clear that the requesting agency must comply

with both regulations. See FAR 17.503(a) (“Before placing an order for supplies or services with

another Government agency, the requesting agency shall follow the procedures in 17.502-1 and,

if under the Economy Act, also 17.502-2.”).

-22-

If the interagency acquisition requires the servicing agency to award a contract, the

servicing agency is responsible for complying with the FAR’s competition requirements,

including those for full and open competition and those for other than full and open competition.

FAR 17.503(d)(3). Finally, prior to the servicing agency acquiring the goods or services for the

requesting agency, the two agencies must “sign a written interagency agreement that establishes

the general terms and conditions governing the relationship between the parties, including roles

and responsibilities for acquisition planning, contract execution, and administration and

management of the contract(s) or order(s).” FAR 17.502-1(b)(1)(i).

3. The Government Management Reform Act of 1994

Executive agencies may also avoid obtaining full and open competition if they proceed

with the procurement under section 403 of the Government Management Reform Act of 1994.

See Pub. L. No. 103-356, 108 Stat. 3410, 3413 (codified as amended at 31 U.S.C. § 501 note).

That statute authorizes the establishment of franchise funds at six executive agencies. Id.

§ 403(a). With respect to such funds, the statute provides:

Each such fund may provide, consistent with guidelines established by the

Director of [OMB], such common administrative support services to the agency

and to other agencies as the head of such agency, with the concurrence of the

Director, determines can be provided more efficiently through such a fund than by

other means. To provide such services, each such fund is authorized to acquire

the capital equipment, automated data processing systems, and financial

management and management information systems needed. Services shall be

provided by such funds on a competitive basis.

Id. § 403(b). Further, “nothing in [section 403(b) is to] be construed as relieving any agency of

any duty under applicable procurement laws.” Id. § 403(e).

One of the franchise funds authorized by the Government Management Reform Act of

1994 was established for the use of the United States Department of the Interior. See Pub. L. No.

104-208, 110 Stat. 3009, 3009-200 to 3009-201 (1997) (codified as amended at 31 U.S.C. § 501

note). The fund is “to be available . . . for costs of capitalizing and operating administrative

services as the Secretary determines may be performed more advantageously as centralized

services[,]” and is to “provide services on a competitive basis[.]” Id.

II. DEFENDANT’S MOTION TO DISMISS

As a threshold matter, defendant moves to dismiss at least some, and perhaps all, of

plaintiff’s claims on justiciability grounds. Specifically, defendant contends that (1) with respect

to many of the DHS components, plaintiff’s claims are not ripe, (2) plaintiff lacks standing to

challenge the decisions of the Coast Guard, DNDO, and TSA, and (3) DHS’s decision to execute

agreements with the Interior Business Center to acquire financial management software systems

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and related services for the Coast Guard, TSA, and DNDO is not subject to judicial review. The

court address these contentions, as well as the issue of subject matter jurisdiction, below.

A. Subject Matter Jurisdiction

Although not directly challenged by defendant, the court must satisfy itself that it

possesses subject matter jurisdiction to entertain plaintiff’s claims. Hardie v. United States, 367

F.3d 1288, 1290 (Fed. Cir. 2004). Indeed, whether the court has jurisdiction to decide the merits

of a case is a threshold matter. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95

(1998). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power

to declare the law, and when it ceases to exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514

(1868).

The ability of this court to hear and decide suits against the United States is limited. “The

United States, as sovereign, is immune from suit save as it consents to be sued.” United States v.

Sherwood, 312 U.S. 584, 586 (1941). The waiver of immunity “cannot be implied but must be

unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). The Tucker Act, the

principal statute governing the jurisdiction of the United States Court of Federal Claims (“Court

of Federal Claims”), waives sovereign immunity for claims against the United States in bid

protests. See 28 U.S.C. § 1491(b) (2012). Specifically, the Tucker Act provides that the Court

of Federal Claims:

shall have jurisdiction to render judgment on an action by an interested party

objecting to a solicitation by a Federal agency for bids or proposals for a proposed

contract or to a proposed award or the award of a contract or any alleged violation

of statute or regulation in connection with a procurement or a proposed

procurement . . . without regard to whether suit is instituted before or after the

contract is awarded.

Id. § 1491(b)(1).

As noted above, in its amended complaint, plaintiff alleges that DHS components decided

to acquire, or to execute agreements with SSPs to acquire, financial management software

systems and related services without providing it with the opportunity to compete. See Am.

Compl. ¶¶ 36, 38-39, 41. Plaintiff reiterates this allegation in the introduction of its motion for

judgment on the administrative record. See Pl.’s Mot. for J. on the AR 1 (“[The Coast Guard,

TSA, and DNDO] made decisions to acquire the Oracle financial management system and related

services on a sole-source basis . . . .”); accord Pl.’s Reply in Support of Its Motion for J. on the

AR 1-2. Based on the allegations in the amended complaint and plaintiff’s motion for judgment

on the administrative record, it is apparent that plaintiff is challenging each DHS component’s

decision–if such a decision has been made–to forgo competition and acquire a financial

management software system and related services on a sole-source basis. In other words,

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plaintiff is challenging, at a minimum, a purported “violation of statute or regulation in

connection with a procurement or proposed procurement.”12 Accord McAfee, Inc. v. United

States, 111 Fed. Cl. 696, 707 (2013) (holding that jurisdiction existed under 28 U.S.C.

§ 1491(b)(1) to consider the protestor’s allegation that the procuring agency decided to acquire

security services from a single source without competition). Accordingly, the court possesses

subject matter jurisdiction to entertain at least some of plaintiff’s claims.

B. Ripeness

Having satisfied itself on the issue of subject matter jurisdiction, the court turns to

defendant’s first justiciability argument–that plaintiff’s claims with respect to those DHS

components that have not executed an interagency agreement with an FSSP (in other words, all

DHS components other than the Coast Guard, TSA, and DNDO) are unripe.

1. Legal Standard

A claim is not ripe for judicial review when it is contingent upon future events that may

or may not occur. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985).

The ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements over administrative policies, and also to protect

the agencies from judicial interference until an administrative decision has been formalized and

its effects felt in a concrete way by the challenging parties,” Abbott Labs. v. Gardner, 387 U.S.

136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977), and

it derives from both “Article III limitations on judicial power and from prudential reasons for

refusing to exercise jurisdiction,” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S.

803, 808 (2003) (citing Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).

In determining whether a claim is ripe for judicial review, courts must “evaluate both the

fitness of the issues for judicial decision and the hardship to the parties of withholding court

consideration.” Abbott Labs., 387 U.S. at 149. The first prong of the ripeness analysis is not

satisfied unless “the challenged agency action is final.” Tokyo Kikai Seisakusho, Ltd. v. United

States, 529 F.3d 1352, 1362 (Fed. Cir. 2008); accord NSK, Ltd. v. United States, 510 F.3d 1375,

1384 (Fed. Cir. 2007) (citing Abbott Labs., 387 U.S. at 149). A final agency action displays two

characteristics. “First, the action must mark the ‘consummation’ of the agency’s decisionmaking

process–it must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S.

154, 177-78 (1997) (citation omitted). “[S]econd, the action must be one by which ‘rights or

obligations have been determined,’ or from which ‘legal consequences will flow.’” Id. at 178

(citation omitted). The second prong of the ripeness analysis is satisfied when the challenged

agency action has an “immediate and substantial impact” on the plaintiff. Gardner v. Toilet

Goods Ass’n, 387 U.S. 167, 170 (1967); see also Sys. Application & Techs., Inc. v. United

12

The court addresses whether plaintiff has asserted viable claims under the other clauses

of 28 U.S.C. § 1491(b)(1) below.

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States, 691 F.3d 1374, 1385 (Fed. Cir. 2012) (“Unlike the standard for obtaining injunctive relief,

which requires a showing of irreparable harm, the standard for ripeness requires a lesser showing

of hardship.”).

2. Some of Plaintiff’s Claims Are Ripe

Defendant contends that plaintiff’s claims must first be parsed to determine whether each

individual DHS component has completed the multistep financial management software system

modernization process.13 Only if that process is complete, defendant asserts, can plaintiff’s

claims be ripe. Thus, defendant argues, if a DHS component decides to modernize using an

FSSP, a claim regarding that modernization effort cannot ripen until the component and the

FSSP have executed an interagency agreement for implementation. Plaintiff, on the other hand,

argues that its claims ripen with respect to a particular DHS component when that component

makes a decision in conjunction with an alternatives analysis to limit competition in a way that

excludes plaintiff. Plaintiff’s argument is more persuasive.

Modernization of financial management software systems can be achieved in a number of

ways; although OMB has stated a preference for migrating such systems to an SSP, it will also

approve other properly justified approaches, such as upgrading an existing system or acquiring a

new system from a commercial vendor via full and open competition. Accordingly, when, after

analyzing its alternatives for modernizing its financial management software system, a DHS

component rejects the option of acquiring such a system and related services through a

competitive process, it is making a final decision to forgo competition. Contrary to defendant’s

contention, the fact that a DHS component must take additional steps before its migration to an

FSSP is fully implemented does not make the decision to forgo competition any less final.

Indeed, such a decision–an affirmative choice of one procurement method (a sole-source

procurement) over all others (including full and open competition)–is subject to judicial review,

see generally Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed. Cir. 2008)

(holding that the Court of Federal Claims possesses jurisdiction to review an agency’s decision to

add work to an existing contract rather than conduct a competition), even if the DHS component

may revisit the decision in the future. Moreover, such a decision has an immediate, substantial

impact on plaintiff because plaintiff is precluded from the opportunity to compete for, and being

awarded, a potentially lucrative government contract.

The decision by a DHS component to forgo competition and acquire a financial

management software system using an FSSP is a final decision, but the next question that arises

is: when does that final decision actually occur? The decision, along with the rationale and legal

13

Defendant limits its ripeness argument to plaintiff’s claims as they relate to ICE and its

customers (USCIS, NPPD, S&T, OHA, and DHS Management). Nevertheless, because

defendant’s arguments are generally applicable to any engagement in the multistep financial

management software system modernization process, the court will address the ripeness of

plaintiff’s claims with respect to all DHS components.

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basis for the decision, may be memorialized in (1) an alternatives analysis; (2) the documents, if

any, reflecting the necessary approvals from the Component Acquisition Executive, the chair of

the Executive Steering Committee, FIT, and OMB; (3) the justification for using other than full

and open competition; and/or (4) the justification for executing an interagency agreement. All of

these documents are relevant in evaluating whether a DHS component has complied with the

pertinent procurement statutes and regulations and whether the component’s decision is arbitrary,

capricious, an abuse of discretion, or contrary to law. Because this documentation may not be

completed until the DHS component executes an interagency agreement with its chosen FSSP to

officially begin the discovery phase, a challenge to the component’s decision to forgo

competition and conduct a sole-source procurement with an FSSP will not ripen until that

agreement is executed.

The court’s determination that plaintiff’s claims with respect to a particular DHS

component ripen once the component executes an interagency agreement for discovery with an

FSSP leads to the following conclusions in this bid protest:

• Because the administrative record reflects that DHS executed an interagency

agreement for discovery with an FSSP on behalf of the Coast Guard, TSA, and

DNDO, plaintiff’s claims with respect to these DHS components are ripe.

• Because defendant has represented, via a sworn declaration, that ICE, OHA,

NPPD, S&T, USCIS, and DHS Management have not executed an interagency

agreement for discovery with an FSSP, plaintiff’s claims with respect to these

DHS components are not ripe.

• Because the administrative record and a sworn declaration from defendant

reflect that FLETC conducted a competition to upgrade its existing financial

management software system, and therefore has not initiated a migration to an

FSSP, plaintiff’s claims with respect to FLETC are not ripe.14

• Because defendant has represented, via a sworn declaration, that I&A and

OPS remain customers of FLETC and have not independently initiated

migrations to an FSSP, plaintiff’s claims with respect to I&A and OPS are not

ripe.

• Because defendant has represented, via a sworn declaration, that CBP has no

current plans to upgrade its financial management software, plaintiff’s claims

with respect to CBP are not ripe.

14

Indeed, because FLETC conducted a competition to upgrade its existing financial

management software system, plaintiff’s amended complaint fails to state a claim upon which

relief can be granted with respect to FLETC.

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• Because defendant has represented, via a sworn declaration, that FEMA has

not yet completed an alternatives analysis or executed an interagency

agreement for discovery, plaintiff’s claims with respect to FEMA are not ripe.

• Because defendant has represented, via a sworn declaration, that the Secret

Service has an existing contract that covers technical upgrades to its financial

management software system and therefore has not prepared an alternatives

analysis or executed an interagency agreement for discovery, plaintiff’s claims

with respect to the Secret Service are not ripe.

In sum, the only ripe claims before the court are plaintiff’s claims that the Coast Guard, TSA, and

DNDO improperly decided to execute an interagency agreement with the Interior Business

Center to acquire financial management software systems and related services, depriving it of an

opportunity to compete.

C. Standing

Having resolved the issue of ripeness, the court next addresses plaintiff’s standing to

pursue its claims against the Coast Guard, TSA, and DNDO.

1. Legal Standard

“[T]he question of standing is whether the litigant is entitled to have the court decide the

merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975).

“Traditional standing analysis invokes the “case or controversy” requirement of Article III of the

Constitution.” Sys. Application & Techs., Inc., 691 F.3d at 1382. However, in bid protests,

standing “is framed by 28 U.S.C. § 1491(b)(1), which . . . imposes more stringent standing

requirements than Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed.

Cir. 2009). Under 28 U.S.C. § 1491(b)(1), bid protests may only be brought by “interested

parties.” The term “interested party” is construed in accordance with the Competition in

Contracting Act of 1984, and, accordingly, “standing under § 1491(b)(1) is limited to actual or

prospective bidders or offerors whose direct economic interest would be affected by the award of

the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps. v. United States,

258 F.3d 1294, 1302 (Fed. Cir. 2001) (citing 31 U.S.C. § 3551(2)(A) (2000)); see also Info.

Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (interpreting

this standard as requiring a protestor to show that it was an interested party prejudiced by the

procuring agency’s action and holding that “because the question of prejudice goes directly to the

question of standing, the prejudice issue must be reached before addressing the merits”); Myers

Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (defining

“prejudice” as “injury”). Therefore, a party lodging a protest must establish that it “(1) is an

actual or prospective bidder, and (2) possesses the requisite direct economic interest.” Rex Serv.

Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006); see also Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 561 (1992) (noting that the burden of establishing standing is on “[t]he

party invoking federal jurisdiction”).

2. Plaintiff Has Standing to Pursue Its Ripe Claims

Defendant contends that plaintiff lacks standing because it is not an interested party under

the definition set forth in the Competition in Contracting Act of 1984 and adopted by the United

States Court of Appeals for the Federal Circuit (“Federal Circuit”) in American Federation of

Government Employees. To qualify as “an actual or prospective bidder or offeror” under the

Competition in Contracting Act of 1984, a protestor must be challenging a solicitation for offers

for a contract for the procurement of goods or services, the cancellation of such a solicitation, an

award or proposed award of a contract for the procurement of goods or services, the termination

or cancellation of such a contract, or the conversion of a function performed by federal

employees to one performed by a private contractor. 31 U.S.C. § 3551(1)-(2). Defendant argues

that plaintiff cannot be considered an actual or prospective bidder or offeror because execution of

an interagency agreement–such as the discovery and implementation interagency agreements

executed by DHS with the Interior Business Center–is not included in the list of actions that can

be challenged in a bid protest, and because the interagency agreements executed by DHS and the

Interior Business Center are not procurement contracts.

This bid protest presents unique circumstances. Normally, when a protestor contests a

procuring agency’s decision to forgo competition and conduct a sole-source procurement, the

procuring agency has (1) cancelled a solicitation prior to consummating the sole-source

procurement, see, e.g., RN Expertise, Inc. v. United States, 97 Fed. Cl. 460, 464 (2011); (2)

issued a sole-source solicitation, see, e.g., Def. Tech., Inc. v. United States, 99 Fed. Cl. 103, 111

(2011); (3) awarded a sole-source contract, see, e.g., Emery Worldwide Airlines, Inc. v. United

States, 49 Fed. Cl. 211, 213, aff’d, 264 F.3d 1071 (Fed. Cir. 2001); (4) modified an existing

contract, see, e.g., McAfee, Inc., 111 Fed. Cl. at 705; or (5) solicited a task order under an

existing contract, see, e.g., id. at 706. In such circumstances, there is no question that the

procuring agency’s actions are within the scope of 31 U.S.C. § 3551(1). Here, however, DHS

accomplished its sole-source procurement by executing interagency agreements with the Interior

Business Center.

Moreover, these agreements are not typical interagency agreements; although they are

being used by DHS to acquire financial management software systems and related services on

behalf of the Coast Guard, TSA, and DNDO, they will not result in an “interagency acquisition”

as defined by the FAR. The FAR defines “interagency acquisition” as “a procedure by which an

agency needing supplies or services (the requesting agency) obtains them from another agency

(the servicing agency), by an assisted acquisition or a direct acquisition.” FAR 2.101; see also

FAR 17.502-2(a) (noting that the FAR applies to Economy Act transactions in which “one

agency uses another agency’s contract to obtain supplies or services”). An “assisted acquisition”

occurs when “a servicing agency performs acquisition activities on a requesting agency’s behalf,

such as awarding and administering a contract, task order, or delivery order,” and a direct

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acquisition is when “a requesting agency places an order directly against a servicing agency’s

indefinite-delivery contract.” FAR 2.101; accord FAR 17.500(b). The FAR does not apply to

“[i]nteragency reimbursable work performed by Federal employees (other than acquisition

assistance) or interagency activities where contracting is incidental to the purpose of the

transaction[.]” FAR 17.500(c)(1); accord FAR 17.502-2(a) (noting that the FAR does not apply

to Economy Act transactions when “the interagency business transaction does not result in a

contract or an order”). Here, DHS did not place an order against an Interior Business Center

contract. And, although the work performed by the Interior Business Center under the

interagency agreement for discovery might be characterized as acquisition activities,15 that work

did not result in the Interior Business Center awarding a contract, task order, or delivery order on

behalf of DHS, the Coast Guard, TSA, or DNDO to acquire financial management software

systems and related services.16 Rather, the Interior Business Center intended to provide financial

management software systems and related services directly to the Coast Guard, TSA, or DNDO

via an interagency agreement.

From defendant’s perspective, these unique facts are dispositive on the issue of standing.

Specifically, defendant argues that the interagency agreements executed by DHS and the Interior

Business Center cannot be challenged in a bid protest because (1) the execution of interagency

agreements is not expressly included in the list of actions that can be challenged under 31 U.S.C.

§ 3551(1), and (2) the FAR, which governs most executive agencies’ acquisition of goods and

services with appropriated funds, does not cover agreements in which one executive agency

acquires goods or services directly from another agency. Consequently, defendant contends, it is

impossible for plaintiff (or any other commercial vendor) to be an actual or prospective bidder or

offeror when a procuring agency executes an agreement with an FSSP; there can be no bidders or

offerors without an actual or proposed contract.

15

Under the FAR, acquisition activities are those related to “the acquiring by contract

with appropriated funds of supplies or services by and for the use of the Federal Government,”

such as activities related to “the description of requirements to satisfy agency needs” and the

“solicitation and selection of sources . . . .” FAR 2.101. The interagency agreement for

discovery incorporated a Statement of Work that described the work to be performed by the

Interior Business Center as: presenting to the Coast Guard, TSA, and DNDO the services it

provides; reviewing and defining the requirements of the Coast Guard, TSA, and DNDO;

analyzing the gaps between the services and requirements; and recommending a solution by

which it could meet the needs of the Coast Guard, TSA, and DNDO. These activities do not fit

squarely within the FAR’s conception of acquisition activities.

16

The Interior Business Center intended to meet some of its obligations under the

interagency agreement for discovery by assigning tasks to a contractor under an existing contract.

The contractor would be assisting the Interior Business Center, and would not be delivering any

supplies or services directly to the Coast Guard, TSA, or DNDO. In other words, no task orders

would be executed on behalf of the Coast Guard, TSA, and DNDO.

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Plaintiff, for its part, contends that defendant’s position conflicts with the Federal

Circuit’s decision in Distributed Solutions, Inc. In that case, the government issued a Request for

Information to commercial vendors, explaining that it was conducting market research regarding

certain commercial-off-the-shelf software solutions. 539 F.3d at 1342. Upon reviewing the

commercial vendors’ responses, the government decided to use one of its existing contractors to

conduct the competition to select a new software provider rather than conducting its own

competition. Id. at 1342-43. That contractor issued its own Request for Information and

awarded subcontracts to selected commercial vendors. Id. at 1343. The protestors responded to

both Requests for Information, but were not awarded a subcontract. Id. Notably, the government

did not itself take any of the actions described in 31 U.S.C. § 3551(1)–it did not issue a

solicitation for offers for a contract for the procurement of the software, cancel such a

solicitation, award or propose awarding a contract for the procurement of the software, terminate

or cancel such a contract, or convert a function performed by federal employees to one performed

by a private contractor. Nevertheless, the Federal Circuit concluded that the protestors had

standing as interested parties. Id. at 1344-45. Specifically, it determined that the original

Request for Information, which the government used to determine its need for the specified

software, initiated a procurement. Id. at 1346. It therefore held that because the protestors had

responded to the Request for Information and were prepared to submit bids had the government

issued a Request for Quotations, the protestors were prospective bidders in that procurement. Id.

at 1344-45.

The court agrees with defendant that 31 U.S.C. § 3551(1) does not expressly contemplate

a protestor challenging the execution of an interagency agreement. It also agrees that the FAR

does not apply when one executive agency acquires goods or services directly from another

executive agency; although the purpose of the interagency agreements between DHS and the

Interior Business Center is the acquisition of services, such agreements are not considered

contracts for the purposes of the FAR. See, e.g., FAR 2.101 (defining “contracting” as

“purchasing, renting, leasing, or otherwise obtaining supplies or services from nonfederal

sources”); FAR 17.500 (indicating that interagency acquisitions are governed by the FAR, but

noting that interagency acquisitions occur only when “(1) [a]n agency needing supplies or

services obtains them using another agency’s contract; or (2) [a]n agency uses another agency to

provide acquisition assistance, such as awarding and administering a contract, a task order, or

delivery order.”). However, as demonstrated by its decision in Distributed Solutions, Inc., the

Federal Circuit has not construed the term “interested party” as narrowly as defendant suggests.

Rather, even if the decision challenged by a protestor does not involve a solicitation or contract

as contemplated by 31 U.S.C. § 3551(1) or a contract or interagency agreement as defined by the

FAR, a protestor can be an interested party under 28 U.S.C. § 1491(b)(1) if it establishes that (1)

it is a prospective bidder or offeror in a procurement or proposed procurement and (2) it has a

direct economic interest in the procurement or proposed procurement. Accord Santa Barbara

Applied Research, Inc. v. United States, 98 Fed. Cl. 536, 537-41, 543 (2011) (concluding that the

protestor had standing as an interested party to challenge a procuring agency’s decision, after

evaluating several procurement options such as obtaining the services from a commercial vendor,

to in-source the services previously performed by the protestor).

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To be considered a prospective offeror, plaintiff must demonstrate that it was qualified to

provide financial management software systems and related services to the Coast Guard, TSA,

and DNDO, and that it would have submitted an offer had there been a competition. See Myers

Investigative & Sec. Servs., Inc., 275 F.3d at 1370-71. Plaintiff has satisfied this burden; it

currently provides such systems and services to several DHS components; its parent company,

Savantage Solutions, responded to the Coast Guard’s May 16, 2013 Request for Information

regarding the availability of such systems and services in the commercial market; and it asserts

that it would submit an offer if there was a competition. In other words, there is sufficient

evidence that plaintiff “was qualified to secure the awards if they had been made the subject of” a

competition. Id. at 1371.

To establish a direct economic interest in the procurement initiated by the Coast Guard,

TSA, and DNDO to acquire financial management software systems and related services,

plaintiff must demonstrate that it could have competed for the contract had there been a

competition. See id. at 1370-71. As noted above, plaintiff was qualified to submit an offer had

the Coast Guard, TSA, and DNDO conducted competitions to acquire financial management

software systems and related services. Moreover, the Federal Circuit has concluded that

protestors who have been deprived of the opportunity to compete for the provision of specified

products or services and who allege the loss of “significant business opportunities” as a result of

the decision to forgo competition have established a direct economic interest in the proposed

procurement. See Distributed Solutions, Inc., 539 F.3d at 1345; see also Weeks Marine, Inc.,

575 F.3d at 1361-63 (noting that in some circumstances, a protestor has a direct economic

interest if it demonstrates “a ‘non-trivial competitive injury which can be addressed by judicial

relief’” (quoting WinStar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998))). In this

case, the DHS components’ decisions to migrate to an FSSP deprived plaintiff of an opportunity

to compete for the provision of financial management software systems and related services, and

plaintiff contends that as a result, it is poised to “lose substantial business with the very real

possibility that it will be pushed out of the market.” Pl.’s Mot. for J. on the AR 71. Plaintiff has

accordingly demonstrated a direct economic interest.

Because plaintiff has established that it is a prospective offeror with a direct economic

interest in the procurement of financial management software systems and related services, it is

an interested party pursuant to 28 U.S.C. § 1491(b)(1), and has standing to protest the decisions

of the Coast Guard, TSA, and DNDO not to conduct a competitive procurement.

D. Reviewability of DHS’s Decision to Execute Interagency Agreements With the Interior

Business Center on Behalf of the Coast Guard, TSA, and DNDO

Defendant’s final contention in its motion to dismiss is that DHS’s decision to execute

agreements with the Interior Business Center to acquire financial management software systems

and related services for the Coast Guard, TSA, and DNDO is not subject to judicial review. In

particular, defendant argues that with respect to these interagency agreements, plaintiff may only

challenge purported violations of statute and regulation in connection with DHS’s procurement,

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and not purported arbitrary and capricious conduct or purported violations of internal government

memoranda. Defendant further argues that the court cannot review DHS’s exercise of its

authority under the Economy Act and the Government Management Reform Act of 1994 to

execute the interagency agreements. The court addresses each argument in turn.

1. Plaintiff’s Allegations That Certain Actions of the Coast Guard, TSA, and DNDO Were

Arbitrary, Capricious, an Abuse of Discretion, and Irrational

Defendant’s first argument concerns plaintiff’s allegations of arbitrary and capricious

conduct. In the third claim for relief of its amended complaint, plaintiff generally contends that

any decisions by DHS components to acquire, or to enter into an agreement to acquire, financial

management software systems and related services without competition were arbitrary,

capricious, an abuse of discretion, and contrary to law. In its motion for judgment on the

administrative record, plaintiff more narrowly asserts that certain conduct of the Coast Guard,

TSA, and DNDO was arbitrary, capricious, an abuse of discretion, and irrational. Defendant

contends that under the plain language of 28 U.S.C. § 1491(b)(1), the court lacks jurisdiction

over these contentions.

As noted above, the Court of Federal Claims possesses jurisdiction to entertain bid

protests by interested parties objecting to a solicitation for bids or proposals for a proposed

contract, a proposed contract award, a contract award, or “any alleged violation of statute or

regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.

§ 1491(b)(1). All but the final category of bid protest jurisdiction described in 28 U.S.C.

§ 1491(b)(1) require the existence of a contract or a proposed contract. Although the term

“contract” is not defined in 28 U.S.C. § 1491(b)(1), the Federal Circuit has held that 28 U.S.C.

§ 1491(b)(1) “is exclusively concerned with procurement solicitations and contracts.” Res.

Conservation Grp., LLC v. United States, 597 F.3d 1238, 1245 (Fed. Cir. 2010). And the FAR,

the regulation that governs most executive agencies’ acquisition of goods and services, does not

treat interagency agreements similar to the ones executed by DHS and the Interior Business

Center as procurement contracts. See, e.g., FAR 2.101 (defining “contracting” as “purchasing,

renting, leasing, or otherwise obtaining supplies or services from nonfederal sources”); FAR

17.500 (indicating that interagency acquisitions are governed by the FAR, but noting that

interagency acquisitions occur only when “(1) [a]n agency needing supplies or services obtains

them using another agency’s contract; or (2) [a]n agency uses another agency to provide

acquisition assistance, such as awarding and administering a contract, a task order, or delivery

order.”). Accordingly, plaintiff may only invoke the final category of bid protest jurisdiction

described in 28 U.S.C. § 1491(b)(1). In other words, the court cannot entertain plaintiff’s

contentions that certain conduct of the Coast Guard, TSA, and DNDO was arbitrary, capricious,

an abuse of discretion, and irrational.

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2. Plaintiff’s Contentions That the Coast Guard, TSA, and DNDO Violated OMB and DHS

Memoranda

Defendant’s next argument concerns plaintiff’s contentions that the Coast Guard, TSA,

and DNDO failed to comply with certain OMB and DHS memoranda. In its motion for

judgment on the administrative record, plaintiff contends that (1) the Coast Guard and DNDO

did not comply with the requirement set forth in DHS’s September 21, 2011 memorandum that

DHS components obtain the approval of the DHS Under Secretary for Management prior to

expending funds for discovery, and (2) the Coast Guard, TSA, and DNDO violated several

memoranda–OMB Memorandum M-10-26, DHS’s September 21, 2011 memorandum, and

DHS’s September 5, 2011 Acquisition Decision Memorandum–by allowing the duration of their

financial management software system modernization efforts to extend beyond twenty-four

months. Defendant argues that the memoranda cited by plaintiff are merely internal agency

guidance and are not statutes or regulations that can be challenged under 28 U.S.C. § 1491(b)(1).

Plaintiff has not attempted to rebut defendant’s contention.

In Hamlet v. United States, the Federal Circuit held that a manual or handbook

promulgated by an agency

is a regulation entitled to the force and effect of law if (1) the promulgating

agency was vested with the authority to create such a regulation; (2) the

promulgating agency conformed to all procedural requirements, if any, in

promulgating the regulation; (3) the promulgating agency intended the provision

to establish a binding rule; and (4) the provision does not contravene a statute. In

determining whether a provision was intended to be binding, the court should

consider (a) whether the language of the provision is mandatory or advisory; (b)

whether the provision is “substantive” or “interpretive”; (c) the context in which

the provision was promulgated; and (d) any other extrinsic evidence of intent.

63 F.3d 1097, 1105 (Fed. Cir. 1995). The Court of Federal Claims has applied this test in bid

protests. See, e.g., Novell, Inc. v. United States, 46 Fed. Cl. 601, 615 (2000) (discussing the

Guide to Judiciary Policies and Procedures); Labat-Anderson, Inc. v. United States, 42 Fed. Cl.

806, 839-40 (1999) (discussing United States Agency for International Development Contract

Information Bulletin 85-17). Plaintiff has offered no evidence indicating that OMB and DHS

intended their memoranda to have the force and effect of law. Indeed, the statement in the OMB

memorandum that the duration of financial management software system modernization projects

“should not exceed 24 months,” AR 2, is merely advisory in nature. And, although both DHS

memoranda contain mandatory language (requiring DHS components to present their alternatives

analyses to DHS’s Management Directorate for approval and requiring each DHS component’s

modernization efforts to conclude within eighteen to twenty-four months), there is no evidence

that DHS disseminated them to the public, a fact that weighs against a finding that DHS intended

them to be binding. See Novell, Inc., 46 Fed. Cl. at 615 (“[T]o be entitled to force and effect of

law, a binding agency regulation ‘must, at the very least, be promulgated by an agency with the

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intent that it establishes a binding rule. Promulgation requires some act of publication, i.e.,

dissemination to the public.’” (quoting Labat-Anderson, Inc., 42 Fed. Cl. at 839)). Moreover,

none of the memoranda bears any indication that they were written for the benefit of federal

contractors hoping to compete to provide financial management software systems and related

services to DHS or its components, which is required for plaintiff to protest their purported

violation. See Freightliner Corp. v. Caldera, 225 F.3d 1361, 1365 (Fed. Cir. 2000) (“In order for

a private contractor to bring suit against the Government for violation of a regulation, that

regulation must exist for the benefit of the private contractor.”); Cessna Aircraft Co. v. Dalton,

126 F.3d 1442, 1451-52 (Fed. Cir. 1998) (“The primary intent of a statute or regulation must be

to protect or benefit a class of persons in order for that class to be able to bring suit against the

government for violating the statute or regulation. . . . [I]f the primary intended beneficiary of a

statute or regulation is the government, then a private party cannot complain about the

government’s failure to comply with that statute or regulation, even if that party derives some

incidental benefit from compliance with it.”). Therefore, the court cannot entertain plaintiff’s

contentions that the Coast Guard, TSA, and DNDO violated the OMB and DHS memoranda.

3. Plaintiff’s Challenges to DHS’s Execution of the Interagency Agreements With the

Interior Business Center

Defendant’s final argument in its motion to dismiss concerns plaintiff’s contentions that

DHS improperly executed interagency agreements with the Interior Business Center on behalf of

the Coast Guard, TSA, and DNDO. Plaintiff, in its motion for judgment on the administrative

record, contends that the Coast Guard, TSA, and DNDO violated the Competition in Contracting

Act of 1984, the regulations implementing the Competition in Contracting Act of 1984, the

regulations implementing the Economy Act, and the Government Management Reform Act of

1994 by entering into the discovery and implementation phases with the Interior Business Center.

Defendant notes that the interagency agreement for the discovery phase was authorized by the

Economy Act and the interagency agreement for the implementation phase was authorized by the

Government Management Reform Act of 1994. Both of these statutes, defendant contends,

provide executive agencies with the discretion to make appropriations decisions. Defendant

argues that this discretion renders DHS’s decision to execute the interagency agreements with the

Interior Business Center unreviewable.

To properly address defendant’s argument, the court must revisit the issues of subject

matter jurisdiction and standing. The court has determined that it possesses subject matter

jurisdiction to entertain plaintiff’s claims that the Coast Guard, TSA, and DNDO violated

statutes and regulations in connection with a procurement and that plaintiff has standing as an

interested party to protest the decisions of the Coast Guard, TSA, and DNDO to forgo

competition because it is a prospective offeror with a direct economic interest in the

procurement. In Distributed Solutions, Inc., the Federal Circuit held that for the purposes of 28

U.S.C. § 1491(b)(1), a procurement “‘includes all stages of the process of acquiring property or

services, beginning with the process for determining a need for property or services and ending

with contract completion and closeout.’” 539 F.3d at 1345 (emphasis omitted) (quoting 41

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U.S.C. § 403(2) (2006)). Under this definition, the Coast Guard, TSA, and DNDO initiated

procurements when they began to gather information concerning their options for modernizing

their financial management software systems. And, had the Coast Guard, TSA, and DNDO

awarded contracts to acquire financial management software systems and related services, their

procurements would have concluded upon the completion of those contracts. However, as

previously discussed, the Coast Guard, TSA, and DNDO did not award contracts–as that term is

understood under the FAR–to acquire financial management software systems and related

services. Rather, DHS consummated its components’ acquisitions using interagency agreements.

Accordingly, as a matter of logic, the procurements initiated by the Coast Guard, TSA, and

DNDO must have concluded upon DHS’s execution of its initial interagency agreement with the

Interior Business Center on behalf of the Coast Guard, TSA, and DNDO. Consequently, plaintiff

cannot challenge any actions by the Coast Guard, TSA, and DNDO that postdate the initial

interagency agreement between DHS and the Interior Business Center.17 In the absence of a

procurement, plaintiff cannot invoke the court’s subject matter jurisdiction under 28 U.S.C.

§ 1491(b)(1). Nor can plaintiff establish that it is an interested party for the purposes of standing;

without a procurement, plaintiff cannot be an actual or prospective bidder.

The court’s determination that the procurement being protested by plaintiff concluded

upon the execution of the initial interagency agreement between DHS and the Interior Business

Center renders defendant’s arguments relating to the execution of the interagency agreement for

implementation moot. Thus, the court need not consider whether DHS violated the Government

Management Reform Act of 1994, or any other statute or regulation, in executing that agreement

with the Interior Business Center. With respect to defendant’s Economy Act argument, the court

notes that plaintiff is not challenging DHS’s selection of the Economy Act as the relevant

authority for its interagency agreement with the Interior Business Center. Rather, plaintiff

contends that DHS, having exercised its discretion to execute an Economy Act agreement, must

comply with the requirements set forth in the Economy Act’s implementing regulations. Such a

contention is subject to judicial review. Accord RN Expertise, Inc., 97 Fed. Cl. at 471-72

(concluding that the procuring agency failed to prepare a D&F pursuant to FAR 17.502-2, but

17

Even if plaintiff could challenge such actions, and was successful in doing so, it would

not be able to establish that it was prejudiced by any improprieties. See Bannum, Inc. v. United

States, 404 F.3d 1346, 1351 (Fed. Cir. 2005) (holding that if the procuring agency’s decision was

made in violation of the applicable statutes, regulations, or procedures, the court must then

“determine, as a factual matter, if the bid protester was prejudiced by that conduct”). “To

establish prejudice . . . , a protester must show that there was a ‘substantial chance’ it would have

received the contract award absent the alleged error.” Banknote Corp. of Am. v. United States,

365 F.3d 1345, 1350 (Fed. Cir. 2004) (quoting Emery Worldwide Airlines, Inc., 264 F.3d at

1086). If the court concluded that the Coast Guard, TSA, and/or DNDO violated a statute or

regulation during the discovery or implementation phases of their financial management software

system modernization efforts, those DHS components could correct the errors without revisiting

their initial decision to forgo competition and use an FSSP. Accordingly, plaintiff would not

have a substantial chance of receiving a contract award and therefore would suffer no prejudice.

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that the protestor was not prejudiced by that failure); Nat’l Gateway Telecom, Inc. v. Aldridge,

701 F. Supp. 1104, 1114, 1116 (D.N.J. 1988) (holding that the procuring agency’s decision to

acquire equipment from another agency pursuant to the Economy Act was proper), aff’d mem.,

879 F.2d 858 (3d Cir. 1989).

E. Conclusion

The court has dismissed many of plaintiff’s allegations for lack of jurisdiction or as

nonjusticiable. The only substantive issue remaining for the court’s resolution is whether the

Coast Guard, TSA, and DNDO violated the Competition in Contracting Act of 1984, the

regulations implementing the Competition in Contracting Act of 1984, or the regulations

implementing the Economy Act when they decided to forgo competition and acquire financial

management software systems and related services on a sole-source basis from the Interior

Business Center. The court addresses this issue in the context of the parties’ cross-motions for

judgment on the administrative record.

III. THE PARTIES’ CROSS-MOTIONS FOR JUDGMENT ON THE

ADMINISTRATIVE RECORD

Both parties have moved for judgment on the administrative record pursuant to Rule

52.1(c) of the Rules of the United States Court of Federal Claims (“RCFC”). In ruling on such

motions, “the court asks whether, given all the disputed and undisputed facts, a party has met its

burden of proof based on the evidence in the record.” A & D Fire Prot., Inc. v. United States, 72

Fed. Cl. 126, 131 (2006) (citing Bannum, Inc., 404 F.3d at 1356). Because the court makes

“factual findings . . . from the record evidence,” judgment on the administrative record “is

properly understood as intending to provide for an expedited trial on the administrative record.”

Bannum, 404 F.3d at 1356.

A. Standard of Review

When entertaining a motion for judgment on the administrative record in a bid protest,

the Court of Federal Claims reviews the challenged agency action pursuant to the standards set

forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). Although section 706 contains several

standards, “the proper standard to be applied in bid protest cases is provided by 5 U.S.C.

§ 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am., 365 F.3d

at 1350.

In this bid protest, the only question before the court is whether the procuring agencies

acted in accordance law. The court “may set aside a procurement action if ‘. . . the procurement

procedure involved a violation of regulation or procedure.’” Centech Grp., Inc. v. United States,

554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting Impresa Construzioni Geom. Domenico Garufi v.

United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). Because procurement officials “are

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entitled to exercise discretion upon a broad range of issues confronting them in the procurement

process,” Impresa, 238 F.3d at 1332 (internal quotation marks omitted), when a protestor claims

that the procuring agency’s decision violates a statute, regulation, or procedure, it must show that

the violation was “clear and prejudicial,” id. at 1333 (internal quotation marks omitted).

B. The Competition in Contracting Act of 1984 and Its Implementing Regulations

Plaintiff first argues that the Coast Guard, TSA, and DNDO violated the Competition in

Contracting Act of 1984 and its implementing regulations when they decided to forgo

competition and acquire financial management software systems and related services on a sole-

source basis from the Interior Business Center. Specifically, plaintiff contends that the Coast

Guard, TSA, and DNDO did not fulfill the requirements of 41 U.S.C. § 3304(e)(1) and FAR

6.303 to justify, in writing, the use of other than full and open competition.

Although executive agencies are normally required to obtain property and services

through full and open competition, they may use noncompetitive procedures in certain

circumstances. 41 U.S.C. §§ 3301(a), 3304(a). When, as here, a statute authorizes an executive

agency to procure property or services from another executive agency, the procuring agency must

justify its decision to forgo competition in writing. Id. § 3304(e)(1); FAR 6.303-1(a). The

justification must include certain, specified information. 41 U.S.C. § 3304(e)(2); FAR 6.303-

2(a) to (b). And, the justification must be approved by the appropriate official and made publicly

available within fourteen days after contract award. 41 U.S.C. § 3304(e)(1), (f); FAR 6.305.

Plaintiff is correct that the administrative record does not include any documents that are

specifically designated as the justifications required by the Competition in Contracting Act of

1984 and its implementing regulations. However, the administrative record does include an A-

127 Justification, which was prepared by the Coast Guard on July 3, 2013, to allow it, TSA, and

DNDO to use a noncompetitive method (migration to an FSSP) to acquire financial management

software systems and related services. In section 7.D of Circular No. A-127, OMB specifies that

a justification to forgo full and open competition should generally include the information

required by FAR 6.303-2. Accordingly, an A-127 Justification can satisfy the requirements of

the Competition in Contracting Act of 1984 and its implementing regulations.

The A-127 Justification prepared by the Coast Guard, broadly construed, contains much

of the required information. However, five required elements are missing: (1) “[a]n

identification of the statutory authority permitting other than full and open competition,” FAR

6.303-2(b)(4); accord 41 U.S.C. § 3304(e)(2)(B); (2) “[a] demonstration that the proposed

contractor’s unique qualifications or the nature of the acquisition requires use of the authority

cited,” FAR 6.303-2(b)(5); accord 41 U.S.C. § 3304(e)(2)(B); (3) “[a] determination by the

contracting officer that the anticipated cost to the Government will be fair and reasonable,” FAR

6.303-2(b)(7); accord 41 U.S.C. § 3304(e)(2)(C); (4) “[a] statement of the actions, if any, the

agency may take to remove or overcome any barriers to competition before any subsequent

acquisition for the supplies or services required,” FAR 6.303-2(b)(11); accord 41 U.S.C.

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§ 3304(e)(2)(F); and (5) “[c]ontracting officer certification that the justification is accurate and

complete to the best of the contracting officer’s knowledge and belief,” FAR 6.303-2(b); accord

41 U.S.C. § 3304(e)(1)(A). By omitting these required elements, the Coast Guard, TSA, and

DNDO violated the Competition in Contracting Act of 1984 and its implementing regulations.18

Of course, it is not enough for plaintiff to establish violations of statute and regulation.

Plaintiff must also demonstrate that it was prejudiced by the violations. Bannum, Inc., 404 F.3d

at 1351. “To establish prejudice . . . , a protester must show that there was a ‘substantial chance’

it would have received the contract award absent the alleged error.” Banknote Corp. of Am., 365

F.3d at 1350 (quoting Emery Worldwide Airlines, Inc., 264 F.3d at 1086); see also Data Gen.

Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“[T]o establish prejudice, a protester

must show that, had it not been for the alleged error in the procurement process, there was a

reasonable likelihood that the protester would have been awarded the contract.”). Plaintiff has

not made the necessary showing.

First, some of the information omitted from the A-127 Justification is found elsewhere in

the administrative record. In particular, DHS’s September 9, 2013 D&F identifies the Economy

Act as the statutory authority for the acquisition of financial management software systems and

related services from an FSSP and explains why an Economy Act agreement is appropriate. In

addition, a number of documents–including the alternatives analyses and the A-127

Justification–reflect the conclusion of the Coast Guard, TSA, and DNDO that migration to an

FSSP was a comparatively low-cost option, strongly suggesting their belief that the costs that

they anticipated incurring were fair and reasonable. Second, requiring the Coast Guard, TSA,

and DNDO to add a statement regarding how they might be able to conduct a full and open

competition in a future procurement would not affect whether plaintiff had a chance of being

awarded a contract in the present procurement. Finally, although the A-127 Justification lacks

any contracting officer certifications, its conclusion was endorsed by the Chief Financial

Officers, Chief Information Officers, and Chief Acquisition Officers of the Coast Guard, TSA,

and DNDO, all of which are higher-level officials than a contracting officer. In sum, the Coast

Guard’s failure to include all of the information in the A-127 Justification that is required by 41

U.S.C. § 3304(e) and FAR 6.303-2(b) amounts to nothing more than harmless error. As such,

plaintiff was not prejudiced by the omissions. Consequently, plaintiff cannot prevail on its claim

that the Coast Guard, TSA, and DNDO violated the Competition in Contracting Act of 1984 and

its implementing regulations.

18

Plaintiff alleges one additional statutory and regulatory violation: the failure of the

Coast Guard, TSA, and DNDO to make the A-127 Justification publicly available. Both the

Competition in Contracting Act of 1984 and its implementing regulations generally require

justifications to use noncompetitive procedures to be made publicly available “within 14 days

after contract award.” 41 U.S.C. § 3304(f)(1); FAR 6.305(a). As noted above, the decision to

migrate to an FSSP means that no contract–as that term is understood in the FAR–was ever

awarded. Accordingly, the public availability requirement was not violated.

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C. The Economy Act’s Implementing Regulations

Plaintiff also argues that the Coast Guard, TSA, and DNDO violated the Economy Act’s

implementing regulations when they decided to forgo competition and acquire financial

management software systems and related services on a sole-source basis from the Interior

Business Center. Specifically, plaintiff contends that the Coast Guard, TSA, and DNDO violated

FAR subpart 17.5 because the “Determination of Best Procurement Approach” and the D&F

prepared by DHS on September 9, 2013, upon which they relied did not meet the requirements of

FAR subpart 17.5. However, as explained above, FAR subpart 17.5 does not apply to the

acquisition at issue here, where one executive agency (DHS) is acquiring goods or services

directly from another executive agency (the Interior Business Center). Thus, any deficiencies in

DHS’s “Determination of Best Procurement Approach” and D&F are irrelevant in the context of

plaintiff’s bid protest. Accordingly, plaintiff cannot prevail on its claim that the Coast Guard,

TSA, and DNDO violated the Economy Act’s implementing regulations.

D. Conclusion

Plaintiff has failed to establish “clear and prejudicial” violations of the Competition in

Contracting Act of 1984, its implementing regulations, or the regulations implementing the

Economy Act. In other words, it has not succeeded on the merits of its claims. Therefore, the

court need not address the remaining elements of plaintiff’s request for injunctive relief.

IV. PLAINTIFF’S REMAINING MOTIONS

In addition to requesting judgment on the administrative record, plaintiff moves to

supplement the administrative record and for leave to file a second amended complaint. The

court addresses each motion in turn.

A. Plaintiff’s Motion to Supplement the Administrative Record

Plaintiff moves to supplement the administrative record, which only contains documents

pertaining to the decisions of the Coast Guard, TSA, and DNDO to migrate to an FSSP, with “all

documents supporting the decisions of [DHS] and its components . . . to acquire financial

management software systems or related services in a manner that precludes [it] from having an

opportunity to compete.” Pl.’s Mot. to Supplement 1. Plaintiff explains that it “is not requesting

that the Court consider documents that were not before the other DHS components when they

made their respective decisions,” but is instead “requesting that Defendant provide the material

that has been developed and considered by the other DHS components in making those

decisions.” Id. at 1-2. Because the evidence before the court reflects that plaintiff’s claims are

ripe only with respect to the Coast Guard, TSA, and DNDO, supplementation of the

administrative record with respect to the other DHS components would not be appropriate.

Consequently, plaintiff’s motion to supplement the administrative record is denied.

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B. Plaintiff’s Motion for Leave to File a Second Amended Complaint

Plaintiff also moves for leave to file a second amended complaint to (1) “conform to the

facts and evidence developed by the Administrative Record” and (2) raise two issues “not

currently addressed in the pleadings.” Pl.’s Mot. to Am. 1. The first new issue is the Interior

Business Center’s purported unlawful expansion of the scope of its sole-source bridge contract

with APG Intel “to accommodate the costly and lengthy implementation phase” for the Coast

Guard, TSA, and DNDO. Id. The second new issue is the Interior Business Center’s purported

intent to amend its license agreement with Oracle to add the Coast Guard, TSA, and DNDO as

customers.

Under RCFC 15(a)(2), parties may amend their pleadings with the court’s leave, and

“[t]he court should freely give leave when justice so requires.” However, the court need not

permit an amendment if the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182

(1962) (“If the underlying facts or circumstances relied upon by a plaintiff may be a proper

subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the

absence of any apparent or declared reason–such as . . . futility of amendment, etc.–the leave

sought should, as the rules require, be ‘freely given.’”).

With respect to plaintiff’s first proposed amendment to its amended complaint–

conformance with the evidence contained in the administrative record–the court concludes that

such amendment is unnecessary because the court has based the rulings in this Opinion and

Order on the facts contained in the administrative record and the arguments set forth in plaintiff’s

motion for judgment on the administrative record. With respect to plaintiff’s second proposed

amendment to its amended complaint–raising two new issues–the court concludes that such

amendment would be futile. As explained above, the procurements at issue in this bid protest

concluded when DHS and the Interior Business Center executed the interagency agreement for

the discovery phase. Because the court’s subject matter jurisdiction and plaintiff’s standing as an

interested party are dependent upon the existence of a procurement, the court cannot entertain

challenges to actions that postdate the interagency agreement for the discovery phase, such as the

Interior Business Center’s modification of its sole-source bridge contract to add implementation-

related tasks and intended amendment of its license agreement with Oracle. Consequently, it

makes no sense to grant plaintiff leave to file a second amended complaint, and its motion is

therefore denied.

V. CONCLUSION

For the reasons set forth above, the court GRANTS IN PART and DENIES IN PART

defendant’s motion to dismiss, DENIES plaintiff’s motion for judgment on the administrative

record, GRANTS defendant’s cross-motion for judgment on the administrative record, DENIES

plaintiff’s motion to supplement the administrative record, and DENIES plaintiff’s motion for

leave to file a second amended complaint. The clerk shall therefore close this bid protest and

enter judgment accordingly.

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The court has filed this ruling under seal. The parties shall confer to determine agreed-to

proposed redactions. Then, by no later than Monday, September 14, 2015, the parties shall

file a joint status report indicating their agreement with the proposed redactions, attaching a

copy of those pages of the court’s ruling containing proposed redactions, with all proposed

redactions clearly indicated.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Judge

APPENDIX

Selected Acronyms and Abbreviations

CAS Core Accounting System

CBP United States Customs and Border Protection

CSSP Commercial Shared Service Provider

D&F Determination and Findings

DHS United States Department of Homeland Security

DHS Management Office of the Secretary and Under Secretary for

Management

DNDO Domestic Nuclear Detection Office

Executive Steering Financial Systems Modernization Executive Steering

Committee Committee

FAME FIT Agency Modernization Evaluation

FEMA Federal Emergency Management Administration

FIT Office of Financial Innovation and Transformation

FLETC Federal Law Enforcement Training Center

FSSP Federal Shared Service Provider

I&A Office of Intelligence and Analysis

ICE Immigration and Customs Enforcement

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MOE Measures of Operational Effectiveness

NPPD National Protection and Programs Directorate

OHA Office of Health Affairs

OMB Office of Management and Budget

OPS Office of Operations Coordination

ROM Rough Order of Magnitude

S&T Science and Technology Directorate

SSP Shared Service Provider

TSA Transportation Security Administration

USCG United States Coast Guard

USCIS United States Citizenship and Immigration Services

USVISIT United States Visitor and Immigrant Status Indicator

Technology

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