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Clinicomp International, Inc v. United States

United States Court of Appeals, Federal Circuit

September 19, 2018

CLINICOMP INTERNATIONAL, INC., Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee CERNER CORPORATION, Defendant-Cross-Appellant

          Appeals from the United States Court of Federal Claims in No. 1:17-cv-01115-LKG, Judge Lydia Kay Griggsby.

          Richard J.R. Raleigh, Jr., Wilmer & Lee PA, Hunts-ville, AL, argued for plaintiff-appellant. Also represented by Jerome S. Gabig, Christopher Lea Lockwood.

          William Porter Rayel, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Douglas K. Mickle.

          Gabriel Bell, Latham & Watkins LLP, Washington, DC, argued for defendant-cross-appellant. Also represented by Dean W. Baxtresser, David Hazelton, Kyle R. Jefcoat, Anne W. Robinson.

          Before Prost, Chief Judge, Wallach and Taranto, Circuit Judges.

          PROST, CHIEF JUDGE.

         CliniComp International, Inc. ("CliniComp") appeals a decision of the U.S. Court of Federal Claims ("Claims Court") dismissing CliniComp's pre-award bid protest for lack of standing. We affirm.

         Background

         I

         The Department of Veterans Affairs ("VA") and Department of Defense ("DoD") operate two of the nation's largest healthcare systems and serve an overlapping patient population. Over the past twenty years, these two government agencies have tried to make their respective electronic health records ("EHR") systems interoperable.

         In 2011, the VA and the DoD committed to developing an integrated EHR system, which would replace the agencies' separate systems with a common system. But in 2013, the agencies abandoned that plan in favor of separate initiatives concerning their own EHR systems.

         The DoD decided to purchase a commercially available system to replace its then-existing "AHLTA" EHR system. In 2015, after a competition, the DoD awarded a $4.3 billion contract for delivery of a modern, commercial off-the-shelf EHR system. This EHR system consists primarily of software developed by Cerner Corporation ("Cerner").

         The VA, for its part, decided to modernize its then-existing "VistA" EHR system. The VA issued a request for information in April 2017 concerning the industry's capability of providing a commercialized version of VistA. It also engaged a private consultant, Grant Thornton, to assess the market's ability to meet the VA's needs through four options-three involving acquiring a commercial off-the-shelf EHR system, and the fourth involving modernizing VistA. Grant Thornton issued a report on May 17, 2017, finding that the market could support all four options. The report concluded that the VA's best option for improving interoperability with the DoD would depend on the VA's own evaluation of the benefits and risks of acquiring a commercial off-the-shelf system versus modernizing VistA.

         The VA ultimately chose to acquire a new system rather than modernize its old one. On June 1, 2017, the VA Secretary invoked the public-interest exception to the Competition in Contracting Act's requirement of full and open competition, 41 U.S.C. §§ 3301, 3304(a)(7), and signed a Determination and Findings ("D&F") authorizing the VA to negotiate a sole-source contract with Cerner "for the acquisition of the [EHR] system being deployed by the [DoD] and related services for deployment and transition across the VA enterprise in a manner that meets VA needs, and which will enable seamless healthcare to Veterans and qualified beneficiaries." J.A. 10001. The D&F ...


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