Distributed Solutions, Inc. v. United States
104 Fed. Cl. 368
Fed. Cl.2012Background
- JAAMS/PSIP program to coordinate acquisition and assistance functions across 250+ missions.
- RFI#1 (June 27, 2005) collected market data; responses were for market research, not contracts.
- SRA, STR, and DSI offered COTS software; USAID/DoS ultimately used SRA to procure and integrate software.
- August–October 2005: agencies chose to forgo direct procurement and task SRA with integration and acquisition.
- SRA subcontracted with Infoterra and Compusearch; GAO protests and this court challenge followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has procurement protest jurisdiction over pre-procurement actions | Plaintiffs rely on Distributed Solutions precedent showing pre-procurement steps fall under §1491(b)(1). | Respondent contends no direct procurement occurred; proceedings were outside jurisdiction. | Yes; pre-procurement actions fall within jurisdiction under §1491(b)(1). |
| Whether plaintiffs suffered jurisdictional prejudice sufficient for standing | Protestors were prospective bidders deprived of direct competition and faced non-trivial injury. | SRA's process and competition through its subcontract cured potential prejudice. | Non-trivial competitive injury established; standing granted. |
| Whether the agency’s deviation from direct procurement violated procurement laws | agencies failed to adequately justify deviation from direct procurement and compliance with CICA, etc. | SRA’s competitive processes and integration role justified the path chosen. | Deviation lacked adequate rational basis and violated procurement law. |
| Whether conflicts of interest and OCI taint the procurement decisions | SRA's role as advisor with potential incentive to select higher-integrity integrations posed conflicts. | No hard facts established; jurisdictional limits preclude OCI challenges at subcontracts. | OCI arguments not established with hard facts; no actionable OCI findings. |
| Whether bundling and Small Business Act concerns invalidate the process | Bundling two stand-alone software packages reduces small business participation; lack of two-vendor competition. | Bundling analysis not applicable; RFI1-2 context differs; SBA concerns insufficient. | Bundling/SBA concerns not proven to invalidate the process; no violation found. |
Key Cases Cited
- Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed.Cir.2008) (procurement process includes pre-procurement steps; standing and jurisdiction intertwined with protest scope)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed.Cir.2009) (non-trivial competitive injury standard; pre-award protest prejudice)
- Savantage Financial Services, Inc. v. United States, 81 Fed.Cl. 300 (Fed.Cl.2008) (sole-source exceptions to competition; need for deviation justification)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed.Cir.2007) (waiver rules—protest of solicitation terms; not controlling post-deviation decisions)
- CCL, Inc. v. United States, 39 Fed.Cl. 780 (Fed.Cl.1997) (modifications outside scope require competition; context cited regarding competition rules)