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.
Prost, Chief Judge, Wallach and Taranto, Circuit Judges.
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.
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")
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.
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").
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
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