Norsat International [America], Inc. v. United States

111 Fed. Cl. 483, 2013 U.S. Claims LEXIS 292, 2013 WL 1637248
CourtUnited States Court of Federal Claims
DecidedApril 16, 2013
DocketNo. 13-41C
StatusPublished
Cited by36 cases

This text of 111 Fed. Cl. 483 (Norsat International [America], 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
Norsat International [America], Inc. v. United States, 111 Fed. Cl. 483, 2013 U.S. Claims LEXIS 292, 2013 WL 1637248 (uscfc 2013).

Opinion

Bid Protest; Technical Evaluation; Deference; Agency Evaluation; Lack of Significant Prejudice

OPINION

FIRESTONE, Judge.

In this bid protest case, Norsat International [America] Inc., (“Norsat” or “the plaintiff’) challenges the United States Department of the Army’s (“the Army,” “the defendant,” or “the government”) decision to award a contract for the continued development and maintenance of the Defense Video and Imagery Distribution System (“DVIDS”) to Encompass Digital Media, Inc. (“Encompass” or “the defendant-intervenor”). Nor-sat argues that the Army arbitrarily and capriciously concluded that Encompass’s proposal, which was rated as “Good-Low Risk,” was a better value to the government than Norsat’s proposal, which cost nearly * * * more (roughly 36%) and was rated “Outstanding-Very Low Risk.” The plaintiff, which was the incumbent contractor, seeks [486]*486declaratory relief and an injunction ordering the suspension of performance and termination of Encompass’s contract. Encompass also seeks attorney’s fees and costs.1

Presently before the court are the parties’ cross-motions for judgment on the administrative record under Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”), the government’s partial motion to dismiss under Rule 12(b)(1), and the government’s motion to strike portions of the materials included in the appendix to the complaint. As discussed below, because Norsat has failed to show that the Army’s conduct was arbitrary, capricious, an abuse of discretion, or contrary to law, the court DENIES the plaintiffs motion for judgment on the administrative record and GRANTS the United States’ and the defendant-interve-nor’s cross-motions for judgment on the record. The government’s other motions are also addressed below.

I. STATEMENT OF FACTS

A. The DVIDS Program

The DVIDS program facilitates the transmission of public affairs audio, video (including live interviews), still imagery, and print products throughout the Department of Defense (“DoD”). AR 443. The legacy DVIDS system consists of a network of portable Ku-band satellite transmitters located throughout the world and a distribution hub in Atlanta, Georgia. AR 59-60. In total, the network includes more than 200 systems concentrated in Afghanistan, the United States, Germany, Kuwait, Bahrain, Qatar, Japan, the Horn of Africa, and Cuba. AR 443.

The plaintiff began developing satellite communications equipment for the DVIDS program in 2003 as part of the predecessor contract. AR 59-60. Norsat helped conceive, design, field, and support all DVIDS transmitters, AR 524, and between 2004 and 2012 the program deployed over 200 terminals. AR 59, 524. During this period Encompass, the defendant-intervenor, provided direct support to the DVIDS program including managing the Atlanta Hub and staffing a 24/7/365 helpdesk for DVIDS users. AR 916. The record does not indicate that Encompass had any responsibility for the design or development of the legacy DVIDS terminals.

B. The Solicitation and Performance Work Statement

The Army issued a solicitation on March 5, 2012 to continue the support and development of DVIDS systems. AR 1-2. The solicitation’s Performance Work Statement (“PWS”) contained detailed descriptions of the five primary tasks to be performed under the contract, including (1) maintaining and repairing legacy DVIDS systems; (2) providing a 24/7/365 helpdesk; (3) the option to develop and field new DVIDS systems; (4) maintaining and repairing new DVIDS systems; and (5) the option to provide training.2 AR 445, 448-49, 453, 456.

With regard to legacy systems, the PWS stated that the contractor “shall be capable of providing support to all legacy systems within 15 days of contract award[,] to include maintenance and processing of all spare part order requests.” AR 445. In this connection, offerors were given the option of either acquiring the legacy software and equipment or implementing “new software that w[ould] be capable of operating legacy systems....” AR 448. The PWS required that contractors “have operational knowledge of all satellite technologies necessary for fielded legacy DVIDS systems ....”, and also provided detailed requirements as to response times for maintenance requests. AR 448.

With regard to helpdesk support, the PWS provided, in part:

The contractor shall ensure [that] access to a helpdesk technician is possible on a 24 hours a day, seven (7) days a week, 365 days a year basis by DVIDS [Satellite Communication (“SATCOM”) ] terminal operators worldwide.... Technicians [487]*487manning the helpdesk shall have sufficient education, knowledge and experience on the operation and [maintenance] of mobile satellite communications systems.... A technician shall be accessible who is knowledgeable of the system configuration for which assistance is needed.

AR 448. In particular, offerors were required to detail (1) how their personnel would travel to support terminals located both within the continental United States (“CONUS”) and outside the Continental United States (“OCONUS”); (2) how they would respond to customer service requests on a 24/7/365 basis; (3) a proposed organizational structure; (4) how they would allocate work among team members; (5) how they would obtain, hire and/or retain necessary personnel; (6) how they would communicate with the government; (7) how they would manage quality control; and (8) how they would access and maintain the data repository of fielded DVIDS systems. See AR 45.

As to the third requirement, the development of new DVIDS systems, the PWS stated that the contractor would develop new ground satellite terminals capable of operating within a 6.5 MHZ Ku satellite bandwidth. AR 449. Specifically, this requirement described five system capability types, including (1) Deployable; (2) Transportable; (3) Manpaekable; (4) Vehicle Mounted; and (5) Maritime. AR 450-51. Contractors were not limited to proposing “transmitters or transmitter types that [were] like the legacy systems.” AR 449. Further, the PWS stated that, “[the contractor] is not confined to the technical means by which the legacy systems operate as long as the capabilities below are met.” AR 449. The PWS then enumerated 11 capabilities, such as the ability to conduct a live High Definition and Standard Definition interview, the ability to mount the transmitter on a vehicle and a maritime vessel at sea, and the ability to operate in an X-Band environment. AR 449-50. In addition, the PWS’s tenth requirement stated that, “[depending on [the] military unit using the transmitter or transmitter type, size, weight and portability will be a factor.” AR 450.

The solicitation also included, at the end of the PWS, a 53-page section entitled “Technical Exhibit 1 - Legacy Systems,” (“Technical Exhibit”). AR 464-516. This section, which had “For Informational Purposes Only” written in bold print on the top of the first page, described aspects of the mobile SATCOM terminals that were either currently in use or that were expected to be fielded in the near term.3 AR 464. The introduction to the Technical Exhibit stated, in part:

SATCOM systems acquired over the performance period of this contract must conform as closely as possible to the operational parameters of the current systems ....

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111 Fed. Cl. 483, 2013 U.S. Claims LEXIS 292, 2013 WL 1637248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norsat-international-america-inc-v-united-states-uscfc-2013.