Digitalis Education Solutions, Inc. v. United States

97 Fed. Cl. 89, 2011 U.S. Claims LEXIS 56, 2011 WL 488677
CourtUnited States Court of Federal Claims
DecidedFebruary 11, 2011
DocketNo. 10-855
StatusPublished
Cited by29 cases

This text of 97 Fed. Cl. 89 (Digitalis Education Solutions, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Digitalis Education Solutions, Inc. v. United States, 97 Fed. Cl. 89, 2011 U.S. Claims LEXIS 56, 2011 WL 488677 (uscfc 2011).

Opinion

OPINION

BRUGGINK, Judge.

This is a post-award protest of a sole-source procurement. The controlling question is whether any of the alleged errors were prejudicial to plaintiff. Pending is plaintiffs motion for judgment on the administrative record pursuant to Rule 52.1 of the Rules of the Court of Federal Claims (“RCFC”). Also pending are defendant’s and intervenor’s motions to dismiss pursuant to RCFC 12(b)(1) and 12(b)(6) and, in the alternative, their cross-motions for judgment on the administrative record. The motions are fully briefed, and we heard oral argument on January 31, 2011. For the reasons stated below, we grant defendant’s and inter-venor’s motions to dismiss.2

[90]*90BACKGROUND3

Digitalis Education Solutions, Inc. (“Digitalis”) makes and sells planetaria. Such devices, typically used for teaching astronomy or celestial navigation, project an image of the night sky onto the interior of a dome-shaped roof. The procurement at issue involved the purchase of about 50 portable planetaria for use in elementary and high schools located at military installations across the United States and overseas. These schools, which educate the children of military service members, are overseen by the Department of Defense Educational Activity (“DODEA”), a component of the Department of Defense.

For many years, DODEA schools have used the “Starlab” brand portable planetaria manufactured by one of Digitalis’ competitors, Morris & Lee d/b/a Science First (“M & L”). In September of 2009, DODEA conducted an unadvertised, sole-source procurement of 15 Starlab planetaria. The systems purchased in 2009, like the older Starlab systems already in use, were analog models in which a variety of specially printed cylinders could be placed over a light source to project the night sky.4 An initial draft of the Justification and Approval (“J & A”) for the 2009 sole source procurement noted that Digitalis manufactured a similar but more expensive product. The published J & A, however, made no mention of Digitalis. Rather, it stated that Starlab was the only known product to integrate science with other subject matter and that, because Starlab systems were already used in DODEA schools, lesson plans and curricula for that system were already in place.

A year later, in September of 2010, the agency again began the process of acquiring more Starlab planetaria, a process that eventually culminated in the purchase of approximately 50 digital Starlab systems. Unlike the older analog models already in use, the new digital systems use a laptop computer, special software, and a data projector to display the celestial subjects. The acquisition occurred with astonishing rapidity, with the entire procurement, from conception to contract award, taking place in only 15 days.

The first record of any contemplation of this procurement came on September 10, 2010, in an internal DODEA email suggesting the possibility of ordering Starlab systems should funding become available. A reply email, dated September 13, noted that such purchases must be publicly posted and suggested that, if the purchase was a possibility, a posting could be done “for couple [sic] days, just in case we need to go this route.” PI. Reply App. 9. The idea apparently met with approval, as a subsequent email, describing how the Starlab systems could supplement planned curriculum updates, was forwarded as an “addition for the J & A” Administrative Record (“AR —”) 284.

Friday, September 17, 2010, saw a flurry of procurement related activity, both within DODEA and between the agency and M & L. One internal DODEA email summarizes a conversation held with M & L earlier that day to discuss various discounts and incentives that M & L could provide. Agency employees also requested that M & L register or update its information on various contractor databases as required by the Federal Acquisition Regulation (“FAR”). Another internal email inquired whether it was necessary to fill out an Information Technology Requirement Analysis — a required agency authorization form — for the Starlab purchase and, if so, what should be done “to make this happen.” AR 366.

In the early afternoon of September 17, 2010, DODEA posted on the Federal Business Opportunities website a notice of its [91]*91intent to award a sole source procurement to M & L. The notice stated DODEA’s intent to procure 50 “Digital STARLAB Portable Planetarium SL 222 Science Systems[5] for its schools” at an estimated price of $2.7 million. AR 5. It further stated:

This notice is not a request for competitive proposals. However, any party that believes it is capable of meeting this requirement as stated herein must submit a written capability statement that clearly supports and demonstrates their ability to provide the items by 22 September 2010, 1200 a.m., Eastern Standard Time.

AR 5. Two days later, on Sunday, September 19, the notice was modified to delete the estimated price.

The J & A was approved on September 20, 2010.6 Citing 10 U.S.C. § 2304(c)(1) (2006) and FAR Part 6.302-2 — “Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements”— the agency justified the sole source procurement as follows:

STARLAB is the only known portable planetarium system that meets DoDEA’s established educational requirements to integrate sciences with teaching of other curricular [sic] such as, English/Language Arts, Cultures (Native American, Greek, African), Geography, History and Math. DoDEA has standardized curricula developed exclusively for the STARLAB portable planetarium. Curriculum standards and specific lessons for the STARLAB components are already in place and there are teacher trainers for this product in all respective areas of operation. It is also emphasized that STARLAB is the only source that provides a planetarium system with all the resources needed to support the instruction required by current curriculum to teach the DoDEA Kindergarten through Grade 12 curricular standards. STARLAB systems are currently in use within DoDEA[;] to cancel the curriculum predicated on the STARLAB product would create the necessity for a new curriculum to be selected, developed, procured and implemented, to include, materials, staff development, creations [sic] of standards and rubrics. Lost classroom instruction hours for teachers attending training for a new curriculum would adversely affect DoDEA’s all too critical mission to effectively provide a quality education to its students.

AR 2-3. The J & A also describes the agency’s ostensibly fruitless “Effort to Obtain Competition”:

Multiple searches via the Internet, General Services Administration (GSA) Multiple Award Schedule (MAS), trade magazines and catalogs for products by technical and contracting personnel to satisfy the Government’s requirement have been conducted; this market research, including attendance by technical personnel at relevant curriculum-based conferences have resulted in no known sources that could satisfy the Government’s requirement. This requirement was also advertized last fiscal year as a sources sought notice yielding no other sources in response.[7]

AR 3.

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97 Fed. Cl. 89, 2011 U.S. Claims LEXIS 56, 2011 WL 488677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/digitalis-education-solutions-inc-v-united-states-uscfc-2011.