           In the United States Court of Federal Claims
                                        BID PROTEST
                                        No. 17-1115C
                              Filed Under Seal: October 18, 2017
                          Reissued for Publication: October 30, 2017*

                                              )
    CLINICOMP INTERNATIONAL, INC.,            )
                                              )
         Plaintiff,                           )
                                              )       Pre-Award Bid Protest; Competition in
    v.                                        )       Contracting Act (“CICA”); 41 U.S.C. §
                                              )       3304; FAR § 1.704; FAR § 6.302-7;
    THE UNITED STATES,                        )       Judgment on the Administrative Record;
                                              )       RCFC 52.1; Injunctive Relief; RCFC 65;
         Defendant,                           )       Supplementing the Administrative
                                              )       Record; Standing; Subject-Matter
    v.                                        )       Jurisdiction; RCFC 12(b)(1).
                                              )
    CERNER CORPORATION,                       )
                                              )
         Defendant-Intervenor.                )
                                              )

      Richard J.R. Raleigh, Jr., Counsel of Record, Jerome S. Gabig, Christopher L.
Lockwood, Wilmer & Lee, P.A., Huntsville, AL, for plaintiff.

        William P. Rayel, Senior Trial Counsel, Douglas K. Mickle, Assistant Director, Robert E.
Kirschman, Jr., Director, Chad A. Readler, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC; Mike
Kraycinovich, Of Counsel, Frank DiNicola, Of Counsel, United States Department of Veterans
Affairs, for defendant.

      David Hazelton, Counsel of Record, Anne W. Robinson, Of Counsel, Kyle R. Jefcoat, Of
Counsel, Dean W. Baxtresser, Of Counsel, Morgan L. Maddoux, Of Counsel, Latham & Watkins
LLP, Washington, DC, for defendant-intervenor.


*
 This Memorandum Opinion and Order was originally filed under seal on October 18, 2017
(docket entry no. 52). The parties were given an opportunity to advise the Court of their views
with respect to what information, if any, should be redacted from the Memorandum Opinion and
Order. The parties filed a joint status report on October 27, 2017 (docket entry no. 60) proposing
certain redactions which the Court has adopted. And so, the Court is reissuing its Memorandum
Opinion and Order dated October 18, 2017, with the agreed upon redactions indicated by three
consecutive asterisks within brackets ([***]).

                                                                                                1
                         MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff, CliniComp International, Inc. (“CliniComp”), brought this pre-award bid protest
matter seeking to enjoin the Secretary of Veterans Affairs (the “Secretary”) from directly
soliciting a sole source contract to Cerner Corporation (“Cerner”) for the next generation
electronic health records (“EHR”) system for the United States Department of Veterans Affairs
(the “VA”), pursuant to the public interest exception to the Competition in Contracting Act
(“CICA”). CliniComp has moved for preliminary and permanent injunctions, pursuant to Rule
65 of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Pl. Mot.
The government and Cerner have also moved to dismiss this matter for lack of subject-matter
jurisdiction, pursuant to RCFC 12(b)(1). See generally Def. XMJAR; Int. XMJAR.

       In addition, the parties have filed cross-motions for judgment on the administrative
record, pursuant to RCFC 52.1. See generally Pl. MJAR; Def. XMJAR; Int. XMJAR.
CliniComp has also moved to strike several documents attached to Cerner’s motion to dismiss
and three citations contained in the government’s motions to dismiss and for judgment on the
administrative record, and to amend its motion to strike. See generally Pl. Mot. to Strike; Pl.
Mot. to Amend; Def. XMJAR at 21-22, 46. Lastly, Cerner and CliniComp have moved for leave
to file supplemental briefs. See generally Int. Mot. to Supp.; Pl. Mot. to Supp.

       For the reasons discussed below, the Court GRANTS CliniComp’s motions to strike and
to amend its motion to strike; GRANTS the government’s and Cerner’s respective motions to
dismiss this matter for lack of subject-matter jurisdiction; DENIES as moot the parties’ cross-
motions for judgment on the administrative record; DENIES CliniComp’s motion for
preliminary and permanent injunctions; and DENIES Cerner’s and CliniComp’s respective
motions for leave to file supplemental briefs.




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II.    FACTUAL AND PROCEDURAL BACKGROUND1

       A.      Factual Background

       CliniComp is headquartered in San Diego, California, and the company is a global
provider of hardware, software, and support for clinical documentation systems. Compl. Ex. 10
at 1. In this pre-award bid protest matter, CliniComp challenges the Secretary’s decision to
make a sole source award of a contract to provide the VA’s new EHR system to Cerner (the
“Cerner Contract”), based upon the public interest exception to CICA. See generally Compl.
Cerner developed the current core EHR system for the United States Department of Defense
(“DoD”). AR at 2.

       CliniComp raises eight challenges to the Secretary’s sole source award decision, namely,
that: (1) the Secretary’s Determination and Findings (“D&F”) regarding the Cerner Contract,
dated June 1, 2017, fails to comply with Federal Acquisition Regulations (“FAR”) § 1.704; (2)
the Secretary cannot rely upon the public interest exception to CICA to award the Cerner
Contract under FAR § 6.302-7(b); (3) the Secretary cannot rely upon the public interest
exception to CICA to award the Cerner Contract, because the VA failed to engage in advance
planning; (4) the Secretary’s award decision is a brand-name justification; (5) the Secretary’s
award decision is arbitrary and capricious; (6) the Secretary improperly failed to consider cost in
making the award decision; (7) the Secretary’s award decision violates FAR § 34.005-1, because
the Cerner Contract involves a major system; and (8) the Secretary failed to comply with the
obligation to timely notify Congress of the award of the Cerner Contract, as required under 41
U.S.C. § 3304(a)(7)(B). Pl. MJAR at 13-39. As relief, CliniComp requests that the Court enjoin




1
  The facts recited in this Memorandum Opinion and Order are taken from CliniComp’s
complaint (“Compl.”); CliniComp’s motion for preliminary and permanent injunctions (“Pl.
Mot.”); CliniComp’s memorandum of points and authorities in support of its motion for
preliminary and permanent injunctions (“Pl. Mem.”); the administrative record (“AR”);
CliniComp’s motion for judgment on the administrative record (“Pl. MJAR”); CliniComp’s
response and opposition to the government’s and Cerner’s respective cross-motions for judgment
on the administrative record and motions to dismiss, and reply in support of its motion for
judgment on the administrative record (“Pl. Resp.”); and the Oral Argument Transcript, dated
October 2, 2017, (“Oral Arg. Tr.”).

                                                                                                  3
the Secretary from awarding the Cerner Contract. See Pl. Mem. at 33; Pl. MJAR at 39-40; Pl.
Resp. at 29-30; see generally Pl. Mot.

               1.      The VA’s Efforts To Improve EHR Interoperability

       As background, the VA and the DoD provide medical services to an overlapping patient
population of service members and veterans. See AR at 2. These two government agencies have
attempted to make their respective EHR systems interoperable for almost twenty years. Id. at
24-32, 2134-35. To date, this ongoing effort has achieved mixed results. Id. at 15-61, 348-82.

       In April 2017, the VA issued two requests for information from providers of EHR
systems to help inform the VA’s efforts to improve the interoperability of the EHR systems for
the VA and the DoD. Id. at 1197-215, 1820-38. The VA also engaged a private auditor, Grant
Thornton, to assess the market’s ability to meet the VA’s needs. Id. at 233. A May 17, 2017,
Grant Thornton report found that the best option for the VA to accomplish the goal of improving
interoperability with the DoD would depend upon the agency’s own evaluation of the benefits
and risks of modernizing its existing EHR system—the Veterans Health Information Systems
and Technology Architecture, known as VistA—or selecting another commercially-available
system. Id. at 233.

       Ultimately, the VA concluded that continuing to modernize its existing EHR system, or
selecting a different commercial EHR system, would “result in the VA having to develop and
maintain an increasingly complex technical architecture without providing seamless care.” Id. at
3, 2142. And so, the Secretary decided to issue a solicitation directly to Cerner for the
acquisition of the EHR system currently being used by DoD for deployment and transition across
the VA. Id. at 5, 2135.

       Cerner currently serves as a sub-contractor under the DoD’s EHR contract, and the
company provides software and cybersecurity services to the DoD. Id. at 2. The DoD’s contract
is based upon Cerner Millennium, a commercially-available EHR product provided by Cerner.
Id.

               2.      The Secretary’s Determination & Findings

       On June 1, 2017, the Secretary issued Determination & Findings regarding his decision to
award the Cerner Contract. Id. at 5. In the D&F, the Secretary states that it is in the public

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interest to directly solicit a sole source contract to Cerner to achieve a single common EHR
system with the DoD. Id. at 1-5, 436. A “single common system” is one which “will be
technically implemented in a way to enable adoption of common workflows, cybersecurity
architecture, order sets, and terminology . . . that results in seamless care regardless of whether a
patient . . . receives care at a VA or DoD facility.” Id. at 436.

        Specifically, the D&F identifies the public interest to be accomplished by the award of
the Cerner Contract as four-fold: (1) “providing seamless, high-quality, integrated care and
benefits;” (2) “improving patient safety;” (3) “facilitat[ing] the transition of active duty military
members to VA;” and (4) “improv[ing veterans’] timely access to the highest quality of care in a
way never before experienced.” Id. at 1-2. With regards to providing seamless health care at the
VA, the D&F states that “[a] Veteran’s complete and accurate health record in a single common
system is critical to providing seamless, high-quality, [and] integrated care and benefits.” Id.
With regards to improving patient safety, the D&F further states that “[c]ommon workflows,
common cybersecurity architecture, and terminology based on national standards, along with a
patient portal that transitions with the patient from active duty to Veteran status, will result in
improved medical outcomes, improved patient safety, and a consistent patient-physician
relationship.” Id. at 3.

        The D&F addresses facilitating the transition of active duty service members to the VA
and states that, a single common system will “facilitate the transition of active duty military
members to VA,” because “[r]ecords residing in a single common system will eliminate the
reliance on complex clinical interfaces or manual data entry between DoD and VA.” Id. at 2.
Lastly, with regards to improving timely access to health care, the D&F also states that having a
single common system will provide “faster disability determinations because the complete record
will already be in a common system.” Id. at 3.

        In addition, the D&F also identifies various other benefits that would result from the
VA’s adoption of the EHR system employed by the DoD. Id. at 2-3. For example, the D&F
states that having the VA replicate the DoD’s existing EHR system will allow the VA to avoid
repeating mistakes and capitalize on the DoD’s investments. Id. at 3. The D&F also states that
having a single common system between the VA and the DoD will avoid having the VA
“develop [or] maintain an increasingly complex” EHR system. Id. In addition, the D&F states


                                                                                                        5
that having the VA and the DoD on a single EHR system will improve the ability of health
analysts to recognize trends among service members and veterans which may be unique to this
patient population. Id.

        The D&F also addresses the benefit of the VA contracting directly with Cerner. Id. at 2-
4. In this regard, the D&F states that:

        [The] VA can take advantage of standard commercial practice by contracting
        directly with Cerner as the prime contractor. During VA’s due diligence in
        preparing for EHR modernization, there was a consistent message from healthcare
        providers that a close working relationship with their EHR provider was a critical
        success factor. Cerner’s core business, as with many large commercial EHR
        vendors, is integrating its product suite into a customer’s environment. As the
        prime contractor and EHR software developer, Cerner is best positioned to not
        only lead software implementation, but also to conduct a robust review of VA
        clinical processes for quality improvement and business transformation.
        Moreover, since the core software has been developed and can be modified by
        Cerner, and DoD’s data is hosted by Cerner, by contracting directly with Cerner,
        VA will avoid additional cost and inefficiencies by not having a third party as the
        prime contractor. This direct relationship with Cerner will also enable VA to
        accelerate the development and implementation of seamless health care for the
        nation’s Veterans and likely hasten the adoption of national standards for EHR
        systems.
Id. at 3-4.

        On June 26, 2017, the VA approved an acquisition plan for a new, comprehensive, and
VA-wide electronic heath records system with Cerner at its core. Id. at 2131-49; see also id. at
5. The D&F states that:

        The contract will . . . address all EHR functions supporting clinical care including
        revenue cycle, in-patient, ambulatory, as well as home care, ancillaries, and
        specialties to include dental. The contract will also address non-clinical core
        functional requirements, which may include inventory management/supply chain
        capabilities.
AR at 5; see also id. at 2146-47.

        In addition, the Cerner Contract will require that Cerner provide these services to
approximately 1,600 VA health care sites located through-out the United States. AR at 1. To
that end, the Cerner Contract is estimated to cost more than $[***] billion over a ten year period.
Id. at 2135-36. The Cerner Contract will be implemented in 48 phases, which will include site
visits, user training, and onsite support. Id. at 2138-39.

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               3.     CliniComp’s EHR Experience

       Lastly, CliniComp has had more than three-decades of management experience with
EHR systems. Compl. Ex. 10 at 1. In 2009, CliniComp was selected by the DOD to be the
inpatient clinical documentation provider for the Military Health System. Id. Currently,
CliniComp provides EHR system software to 56 DoD military facilities worldwide. Id. at 2-3;
see also Oral Arg. Tr. at 15:20-16:5. CliniComp also provides EHR system software to 44 VA
health care facilities located throughout the United States. Compl. Ex. 10. at 2; see also Oral
Arg. Tr. at 15:20-16:5.

       B.      Procedural Background

       CliniComp commenced this pre-award bid protest action on August 18, 2017. See
generally Compl. On August 18, 2017, CliniComp filed a motion for preliminary and permanent
injunctions and a memorandum of points and authorities in support of its motion for preliminary
and permanent injunctions. See generally Pl. Mot.; Pl. Mem.

       On August 21, 2017, Cerner filed an unopposed motion to intervene in this matter. See
generally Mot. to Intervene. On August 22, 2017, the Court held an initial telephonic status
conference, during which CliniComp agreed to hold its motion for preliminary and permanent
injunctions in abeyance pending the resolution of the merits of this case. Status Conference Tr.
at 8:5-18, 18:21-19:4. On August 22, 2017, the Court issued an Order granting Cerner’s motion
to intervene and setting the briefing schedule for the parties’ cross-motions for judgment on the
administrative record. See generally Scheduling Order, Aug. 22, 2017. On August 23, 2017, the
Court entered a Protective Order in this matter. See generally Protective Order.

       On August 30, 2017, the government filed the administrative record. See generally AR.
On September 11, 2017, CliniComp filed a motion for judgment on the administrative record.
See generally Pl. MJAR. On September 18, 2017, the government filed a motion to dismiss and
cross-motion for judgment on the administrative record and response to CliniComp’s motion for
judgment on the administrative record. See generally Def. XMJAR. On September 18, 2017,
Cerner filed a cross-motion for judgment on the administrative record, opposition to
CliniComp’s motion for judgment on the administrative record and motion to dismiss. See
generally Int. XMJAR. On September 22, 2017, CliniComp filed a response and opposition to
the government’s and Cerner’s respective cross-motions for judgment on the administrative

                                                                                                    7
record and motions to dismiss, and a reply in support of its motion for judgment on the
administrative record. See generally Pl. Resp. On September 27, 2017, the government filed a
reply to CliniComp’s response to its motion to dismiss and cross-motion for judgment on the
administrative record. See generally Def. Reply. On September 27, 2017, Cerner filed a reply in
support of its cross-motion for judgment on the administrative record and motion to dismiss. See
generally Int. Reply.

        On September 22, 2017, CliniComp filed a motion to strike the declarations of Kyle R.
Jefcoat and Charles Safran, M.D. and related attachments, which Cerner filed in support of its
motion to dismiss, and certain citations contained in the government’s motion to dismiss and
cross-motion for judgment on the administrative record. See Pl. Mot. to Strike at 1-2. On
September 26, 2017, CliniComp filed a motion to amend its motion to strike. See Mot. to
Amend. at 1 n.1. On September 27, 2017, Cerner filed a response and opposition to
CliniComp’s motion to strike. See generally Int. Resp. On September 28, 2017, the government
filed a response and opposition to CliniComp’s motion to strike. See generally Def. Resp.

        On October 2, 2017, the Court held oral argument in this matter.2 On October 4, 2017,
Cerner filed a motion for leave to file a supplemental brief to provide record citations pertaining
to certain factual matters raised during oral argument. See generally Int. Mot to Supp. On
October 6, 2017, the government filed a response to Cerner’s motion for leave to file a
supplemental brief. See generally Def. Resp. to Mot. to Supp. On October 6, 2017, CliniComp
filed an opposition to Cerner’s motion for leave to file a supplemental brief and motion for leave
to file a supplemental brief. See generally Pl. Mot. to Supp. On October 10, 2017, Cerner filed a
response and opposition to CliniComp’s motion for leave to file a supplemental brief. See
generally Int. Resp. to Pl. Mot. to Supp. On October 12, 2017, the government filed a response




2
  On September 30, 2017, counsel for CliniComp sent an email to the Court that courtesy copied counsel
for the government and Cerner and notified the Court of certain additional authority to support
CliniComp’s motion for judgment on the administrative record. On September 30, 2017, counsel for the
government sent an email to the Court that courtesy copied all counsel and provided the Court with a
corrected copy of one of the cases identified in CliniComp’s September 30, 2017 email. The Court
observes that the Court’s Rules expressly require that any request for a Court order be made by motion.
See RCFC 7(b).


                                                                                                          8
and opposition to CliniComp’s motion for leave to file a supplemental brief. See generally Def.
Resp. to Pl. Mot. to Supp.

          These matters having been fully briefed, the Court addresses the pending motions.

III.      LEGAL STANDARDS

          A.     Bid Protest Jurisdiction

          The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid
protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1). In bid protest cases, this Court reviews agency actions
under the Administrative Procedure Act’s (“APA”) “arbitrary and capricious” standard. See 28
U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the APA). Under this standard,
an “‘award may be set aside if either (1) the procurement official’s decision lacked a rational
basis; or (2) the procurement procedure involved a violation of regulation or procedure.’”
Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir.
2001)).

          In this regard, the United States Court of Appeals for the Federal Circuit has explained
that: “when a challenge is brought on the first ground, the test is ‘whether the contracting agency
provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed
bidder bears a “heavy burden” of showing that the award decision had no rational basis.’” Id.
(quoting Impresa, 238 F.3d at 1332-33). “‘When a challenge is brought on the second ground,
the disappointed bidder must show a clear and prejudicial violation of applicable statutes or
regulations.’” Id. (quoting Impresa, 238 F.3d at 1333). In addition, when reviewing an agency’s
procurement decision, the Court should recognize that the agency’s decision is entitled to a
“presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). “The [C]ourt
should not substitute its judgment for that of a procuring agency.” Cincom Sys., Inc. v. United
States, 37 Fed. Cl. 663, 672 (1997). And so, “[t]he protestor must show, by a preponderance of
the evidence, that the agency’s actions were either without a reasonable basis or in violation of

                                                                                                     9
applicable procurement law.” Info. Tech. & Applics. Corp. v. United States, 51 Fed. Cl. 340, 346
(2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003) (citation omitted).

        The Court’s standard of review “is highly deferential.” Advanced Data Concepts, Inc. v.
United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000). As long as there is “‘a reasonable basis for
the agency’s action, the court should stay its hand even though it might, as an original
proposition, have reached a different conclusion.’” Honeywell, Inc. v. United States, 870 F.2d
644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C.
Cir. 1971)). But, if “the agency ‘entirely fail[s] to consider an important aspect of the problem
[or] offer[s] an explanation for its decision that runs counter to the evidence before the agency,’”
then the resulting action lacks a rational basis and, therefore, is defined as “arbitrary and
capricious.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.
Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).

        B.      Standing And Bid Protests

        Standing is a threshold issue which implicates the Court’s subject-matter jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). And so, if a plaintiff cannot
establish standing, the Court is without jurisdiction to render a decision on the merits of a claim.
Myers Investigative & Sec. Servs. v. United States, 275 F.3d 1366, 1369-70 (Fed. Cir. 2002).

        Under the Tucker Act, the Court has jurisdiction over “an action by an interested party
objecting . . . to an alleged violation of a statute or regulation with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1). In evaluating who qualifies as an interested party with
standing to bring a bid protest claim, the Court looks to the definition of “interested party”
provided in CICA. Myers, 275 F.3d at 1370 (quoting Am. Fed’n of Gov’t Employees v. United
States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)); see 31 U.S.C. § 3551(2). And so, to have
standing, a plaintiff must show that: “‘it [(1)] is . . . an actual or prospective bidder and [(2)] . . .
has a direct economic interest’ in the procurement or proposed procurement.” Diaz v. United
States, 853 F.3d 1355, 1358 (Fed. Cir. 2017) (alterations original) (quoting Digitalis Educ. Sols.,
Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012)); see also 31 U.S.C. § 3551(2).




                                                                                                        10
       In determining the second prong of standing—whether a plaintiff has a “direct economic
interest” in the procurement—the Court generally applies the “substantial chance test,” and
inquires as to whether the plaintiff would have had a substantial chance of winning the contract,
but for the alleged error in the procurement. Orion Tech., Inc. v. United States, 704 F.3d 1344,
1349 (Fed. Cir. 2013). The Federal Circuit has made clear that the “substantial chance” test
applies in bid protests involving challenges to sole source awards. Myers, 275 F.3d at 1370; see
also Digitalis, 664 F.3d at 1385 (“We see no reason to limit [the substantial chance test] to
competitive procurements.”); Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071,
1086 (Fed. Cir. 2001) (“When a party contends that the procurement procedure in a sole-source
case involved a violation of a statute, regulation, or procedure, it must establish prejudice by
showing that it would have had a substantial chance of receiving the award.”). In such cases, the
Court inquires as to whether the plaintiff could have competed for the contract at issue, if the
procurement process were competitive. Myers at 275 F.3d at 1370. And so, while a plaintiff
need not show that it would have received the award in a competition, a plaintiff must show that
it would have been a qualified bidder or offeror to establish standing. Id. at 1370-71.

       The Federal Circuit has also held that in certain pre-award bid protest matters involving a
challenge to the terms of a solicitation, the Court may apply a different test to determine direct
economic interest, namely, whether the plaintiff has a “non-trivial competitive injury which can
be addressed by judicial review.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1362
(Fed. Cir. 2009). This standard may apply when circumstances provide insufficient facts to
determine whether a plaintiff had a substantial chance of an award. Id. at 1361. But, as the
Federal Circuit recognized in Orion, the “non-trivial competitive injury” test applies when there
is a challenge to a solicitation before the award. Orion, 704 F.3d at 1348-49. And so, this test
does not necessarily apply to all pre-award bid protests. Id.

       C.      Injunctive Relief, RCFC 65

       In bid protest matters, the Tucker Act authorizes this Court to “award any relief that the
court considers proper, including . . . injunctive relief.” 28 U.S.C. § 1491(b)(2); see also RCFC
65. But, “‘a preliminary injunction is an extraordinary and drastic remedy, one that should not
be granted unless the movant, by a clear showing, carries the burden of persuasion.’” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (emphasis omitted) (quoting 11A C. Writ, A. Miller, M.


                                                                                                     11
Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed 1995)); Intel Corp. v. ULSI
Sys. Tech., Inc., 995 F.2d 1566, 1568 (Fed. Cir. 1993) (citation omitted) (noting that the award of
“a preliminary injunction is a drastic and extraordinary remedy that is not to be routinely
granted.”); Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) (citation
omitted) (“The standard for a preliminary injunction is essentially the same as for a permanent
injunction with the exception that the plaintiff must show a likelihood of success on the merits
rather than actual success.”).

       In deciding whether to grant injunctive relief, the Federal Circuit has directed that the
Court consider four factors: (1) whether “the plaintiff has succeeded on the merits of the case; (2)
whether the plaintiff will suffer irreparable harm if the Court withholds injunctive relief; (3)
whether the balance of hardships to the respective parties favors the grant of injunctive relief;
and (4) whether it is in the public interest to grant injunctive relief.” PGBA, LLC v. United
States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citation omitted); FMC Corp. v. United States,
3 F.3d 424, 427 (Fed. Cir. 1993); OAO Corp. v. United States, 49 Fed. Cl. 478, 480 (2001).

       “Although the factors are not applied mechanically, a movant must establish the
existence of both of the first two factors to be entitled to a preliminary injunction.” Altana
Pharma AG v. Teva Pharm. USA, Inc., 566 F.3d 999, 1005 (Fed. Cir. 2009) (citing Amazon.com,
Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001)). In addition, the
Federal Circuit has held that “[n]o one factor, taken individually, is necessarily dispositive. . . .
[T]he weakness of the showing regarding one factor may be overborne by the strength of the
others.” FMC Corp., 3 F.3d at 427. Conversely, “the absence of an adequate showing with
regard to any one factor may be sufficient” to deny injunctive relief, given the weight or lack of
it assigned to the other factors, to justify the denial” of a motion for a preliminary injunction. Id.
And so, this Court has held that a “plaintiff that has not actually succeeded [upon] the merits of
its claim cannot prevail [upon a] motion for injunctive relief.” Argencord Mach. & Equip., Inc.
v. United States, 68 Fed. Cl. 167, 176 (2005) (citation omitted).

       D.      Judgment On The Administrative Record And Supplementing The Record

       RCFC 52.1 generally limits the Court’s review of an agency’s procurement decision to
the administrative record. Cf. Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379
(Fed. Cir. 2009) (“‘[T]he focal point for judicial review should be the administrative record

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already in existence . . . . ’” (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973))). Unlike a
summary judgment motion brought pursuant to RCFC 56, the existence of genuine issues of
material fact does not preclude judgment upon the administrative record under RCFC 52.1. See
RCFC 56; Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242-43 (2011). Rather, the Court’s
inquiry is whether, “given all the disputed and undisputed facts, a party has met its burden of
proof based on the evidence in the record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl.
126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)).

       The Federal Circuit has also held in Axiom Resource Management, that the “parties’
ability to supplement the administrative record is limited” and that the administrative record
should only be supplemented “if the existing record is insufficient to permit meaningful review
consistent with the APA.” Axiom Res. Mgmt., Inc., 564 F.3d at 1379-81; see also Caddell
Constr. Co., Inc. v. United States, 111 Fed. Cl. 49, 93 (2013). In Axiom, the Federal Circuit cited
to the Supreme Court’s decision in Camp v. Pitts, which held that “‘the focal point for judicial
review should be the administrative record already in existence, not some new record made
initially in the reviewing court.’” Axiom Res. Mgmt., Inc., 564 F.3d at 1379 (quoting Camp, 411
U.S. at 142). This focus is maintained in order to prevent courts from using new evidence to
“convert the arbitrary and capricious standard into effectively de novo review.” L-3 Commc’ns
EOTech, Inc. v. United States, 87 Fed. Cl. 656, 671 (2009) (internal quotation marks omitted)
(quoting Murakami v. United States, 46 Fed. Cl. 731 (2000)).

       This Court has interpreted the Federal Circuit’s directive in Axiom to mean that
supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is
not permitted when the documents proffered are unnecessary for an effective review of the
government’s procurement decision. Id. at 672. And so, this Court has precluded
supplementation of the administrative record with declarations that contain “post-hoc contentions
of fact and argument.” Id.

       E.      CICA And The Public Interest Exception

       Lastly, the Competition in Contracting Act generally requires procuring agencies to
engage in full and open competition. 41 U.S.C. § 3301(a). There are, however, seven
exceptions to this requirement that permit federal agencies to engage in “other than competitive
procedures.” 41 U.S.C. § 3304(a).

                                                                                                   13
        Particularly relevant to this dispute, the public interest exception under CICA provides
that:

        (a) WHEN NONCOMPETITIVE PROCEDURES MAY BE USED.—An
            executive agency may use procedures other than competitive procedures only
            when—
               ....
               (7) the head of the executive agency (who may not delegate the authority
                   under this paragraph)–
                       (A) determines that it is necessary in the public interest to use
                          procedures other than competitive procedures in the particular
                          procurement concerned; and
                       (B) notifies Congress in writing of that determination not less than
                           30 days before the award of the contract.
41 U.S.C. § 3304(a)(7).

        This Court has recognized that that judicial review of an agency head’s use of the public
interest exception must also include an examination of whether the agency head has complied
with the requirements of the FAR. See Spherix, Inc. v. United States, 58 Fed. Cl. 351, 356
(2003); see also Sikorsky Aircraft Corp., B-403471, B-403471.3, 2010 U.S. Comp. Gen. LEXIS
310, at *9-10 (Comp. Gen. Nov. 5, 2010). In this regard, FAR § 6.302-7 requires the agency
head to issue a D&F that separately complies with FAR Part 1.7. See 48 C.F.R. § 6.302-7(c); see
also 48 C.F.R. § 806.302-7(c).

        Specifically, FAR § 1.704 sets forth the requirements for the substance and form of the
Determination and Findings and requires that:

        Each D&F shall set forth enough facts and circumstances to clearly and
        convincingly justify the specific determination made. As a minimum, each D&F
        shall include, in the prescribed agency format, the following information:
               (a) Identification of the agency and of the contracting activity and specific
                   identifications of the document as a Determination and Findings.
               (b) Nature and/or description of the action being approved.
               (c) Citation of the appropriate statute and/or regulation upon which the
                   D&F is based.
               (d) Findings that detail the particular circumstances, facts, or reasoning
                   essential to support the determination. Necessary supporting
                   documentation shall be obtained from appropriate requirements and
                   technical personnel.

                                                                                                   14
                (e) A determination, based on the findings, that the proposed action is
                    justified under the applicable statute or regulation.
                (f) Expiration date of the D&F, if required (see 1.706(b)).
                (g) The signature of the official authorized to sign the D&F (see 1.706)
                    and the date signed.
48 C.F.R. § 1.704 (2017).

        While the Court does not second guess the agency’s determination of what constitutes the
public interest, the Court must confirm that the D&F clearly and convincingly justifies the
agency head’s decision to invoke the public interest exception. Sikorsky Aircraft Corp., 2010
U.S. Comp. Gen. LEXIS 310, at *10 (denying a protest because the claims amounted to “the
protester’s mere disagreement with the [agency]’s positions.”); 48 C.F.R. § 1.704. And so, the
Court will look to the D&F—and also to other evidence contained in the administrative record—
to find support for the agency head’s decision. Spherix, Inc., 58 Fed. Cl. at 517 (“. . . the clear
and convincing justification found in the Administrative Record is the exclusive basis of the
court’s holding . . . .”); 48 C.F.R. § 1.704(d).

IV.     LEGAL ANALYSIS

        The government and Cerner have moved to dismiss this challenge to the Secretary’s
decision to directly solicit a sole source contract from Cerner to provide the VA’s new electronic
health records system, upon the ground that CliniComp is not a qualified bidder with standing to
pursue this matter. See generally Def. XMJAR; Int. XMJAR. CliniComp counters in its
opposition to the defendants’ motions that it has standing to bring this matter, because
CliniComp is a prospective offeror and the VA has deprived CliniComp of the opportunity to
compete for the Cerner Contract. Pl. Resp. at 5-9.

        The parties have also filed cross-motions for judgment on the administrative record on
the issue of whether the Secretary’s sole source award decision was reasonable and in
accordance with CICA, the FAR, and other applicable laws, pursuant to RCFC 52.1. See
generally Pl. MJAR; Def. XMJAR; Int. XMJAR. In this regard, CliniComp argues that the
Secretary’s decision was irrational and unlawful because: (1) the Secretary’s Determination and
Findings regarding the Cerner Contract fails to comply with FAR § 1.704; (2) the Secretary
cannot rely upon the public interest exception to CICA to award the Cerner Contract under FAR
§ 6.302-7(b); (3) the Secretary cannot rely upon the public interest exception to CICA to award

                                                                                                      15
the Cerner Contract, because the VA failed to engage in advance planning; (4) the Secretary’s
award decision is a brand-name justification; (5) the Secretary’s award decision is arbitrary and
capricious; (6) the Secretary improperly failed to consider cost in making the award decision; (7)
the Secretary’s award decision violates FAR § 34.005-1, because the Cerner Contract involves a
major system; and (8) the Secretary failed to comply with the obligation to timely notify
Congress of the award of the Cerner Contract, as required under 41 U.S.C. § 3304(a)(7)(B). Pl.
MJAR at 13-40. The defendants counter that the Secretary’s award decision was lawful, because
the decision is clearly and convincingly justified in the Secretary’s Determination and Findings
and otherwise supported by the administrative record. See generally Def. XMJAR at 23-46; Int.
XMJAR at 4-41; Def. Reply at 6-20; Int. Reply at 1-19.

       In addition, the parties have filed several other motions. First, CliniComp has moved for
preliminary and permanent injunctions to enjoin the Secretary from make the planned sole
source award to Cerner, pursuant to RCFC 65. See generally Pl. Mot. CliniComp has also
moved to strike two declarations, and related documents, filed in support of Cerner’s motion to
dismiss—and the citations to a link to CliniComp’s corporate website and to congressional
reports contained in the government’s motion to dismiss and cross-motion for judgment on the
administrative record—as well as a motion to amend the motion to strike. See generally Pl. Mot.
to Strike; see also Def. XMJAR at 21-22, 46. Lastly, Cerner has moved for leave to a file
supplemental brief in support of its motion to dismiss and CliniComp has moved for leave to file
a supplemental brief in support of its cross-motion for judgment on the administrative record.
See generally Int. Mot. to Supp.; Pl. Mot. to Supp.

       For the reasons discussed below, the Court GRANTS CliniComp’s motions to strike and
to amend its motion to strike; GRANTS the government’s and Cerner’s respective motions to
dismiss this matter for lack of subject-matter jurisdiction; DENIES as moot the parties’ cross-
motions for judgment upon the administrative record; DENIES CliniComp’s motion for
preliminary and permanent injunctions; and DENIES Cerner’s and CliniComp’s respective
motions for leave to file supplemental briefs.

       A.      The Court Grants CliniComp’s Motion To Strike
       As an initial matter, the Court grants CliniComp’s motion to strike. In its motion to
strike, CliniComp seeks to strike the declarations of Kyle R. Jefcoat and Charles Safran, M.D.,


                                                                                                  16
and related documents, which Cerner has filed to support its motion to dismiss, upon the ground
that these materials are extraneous to the administrative record. Pl. Mot. to Strike at 2.
CliniComp also moves to strike references to its corporate website and to certain congressional
reports contained in the government’s motion to dismiss and cross-motion for judgment upon the
administrative record for this same reason. Id.

       CliniComp is correct in noting that, generally, RCFC 52.1 limits the Court’s review of an
agency’s procurement decision to the administrative record, and the administrative record should
only be supplemented “if the existing record is insufficient to permit meaningful review
consistent with the APA.” Axiom Res. Mgmt., Inc., 564 F.3d at 1379-81; see also Caddell
Constr. Co., 111 Fed. Cl. at 93. But, the Jefcoat and Safran declarations and the citation to
CliniComp’s website are relied upon by the defendants to support their respective motions to
dismiss this matter for lack of subject-matter jurisdiction. See Def. Resp. to Mot. to Strike at 3-
4; Int. Resp. to Mot. to Strike at 4-5; see also Def. XMJAR at 21-22; Int. XMJAR at 44-47. As
the government correctly observes in its opposition to CliniComp’s motion to strike, the Court
may look to matters beyond the administrative record to resolve the question of whether
CliniComp has standing. Def. Resp. to Mot. to Strike at 3; see, e.g., Digitalis, 97 Fed. Cl. at 93.
And so, the Court agrees with the defendants that the Court may consider these materials.

       CliniComp is on somewhat firmer ground in objecting to the government’s citation to
two congressional reports that are not included in the administrative record to support the
government’s motion for judgment on the administrative record. The government appears to
acknowledge that these reports address the merits of CliniComp’s claim that the VA violated the
notice obligations under 41 U.S.C. § 3304(a)(7)(B). Def. Resp. to Pl. Mot. to Strike at 4-5.
Nonetheless, the government argues that the Court may consider this material because the
government relies upon these reports to show that CliniComp has not been prejudiced by the
VA’s alleged statutory violation. Id. While the Court does not share the government’s view that
the subject congressional reports serve only to address the issue of prejudice, the Court
acknowledges that the existence and contents of these congressional reports are matters of public
record and not subject to reasonable dispute. See Fed. R. Evid. 201 (providing for judicial notice
of adjudicative facts). And so, the Court may also consider this material.




                                                                                                  17
       The Court concludes, however, that the existing administrative record in this matter—and
CliniComp’s complaint—contain sufficient information for the Court to resolve the parties’
pending motions to dismiss and cross-motions for judgment upon the administrative record. And
so, for this reason, the Court GRANTS CliniComp’s motion to strike the Jefcoat and Safran
declarations, as well as the citations to CliniComp’s website and to the congressional reports
contained in the government’s filings.

       B.       CliniComp Fails To Establish Standing

       The Court also grants the defendants’ motions to dismiss this matter for lack of subject-
matter jurisdiction, because CliniComp has not established that it has standing to pursue this pre-
award bid protest matter. RCFC 12(b)(1). In their motions to dismiss, the government and
Cerner argue that that CliniComp lacks standing to bring this challenge to the Secretary’s sole
source award decision, because CliniComp is not a qualified bidder that could have competed for
the contract to provide the VA’s new electronic health records system. See Def. XMJAR at 18-
23; Int. XMJAR at 42-47. For the reasons discussed below, the Court agrees.

       It is well-established that standing is a threshold matter which implicates the jurisdiction
of this Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). And so, if CliniComp
cannot establish standing, the Court must dismiss this matter for lack of subject-matter
jurisdiction. Id.; Myers, 275 F.3d at 1369-70.

       To establish standing, CliniComp must show two things: (1) that it is “an actual or
prospective bidder or offeror” and (2) that it has a “direct economic interest [which] would be
affected by the award of the contract or by failure to award the contract.” 31 U.S.C. § 3551(2).
In this case, there is no dispute that CliniComp is a prospective bidder for the contract in dispute.
Pl. Mem. at 5-6; Def. XMJAR at 21-23; Int. XMJAR at 42-43 (arguing that, although CliniComp
“claim[s] that [it] would have submitted a proposal if the procurement were not a sole source
procurement,” CliniComp still must show that it had a substantial chance of winning the
contract). And so, the question presented here is whether CliniComp has a “direct economic
interest” that would be affected by the award of the Cerner Contract. 31 U.S.C. § 3551(2); Am.
Fed. of Gov’t. Employees, 258 F.3d at 1302.




                                                                                                  18
        Generally, the Court assesses “direct economic interest” by inquiring whether, but for the
alleged error, a plaintiff would have had a substantial chance of receiving the contract. Orion,
704 F.3d at 1349; Myers, 275 F.3d at 1370. In Myers, the Federal Circuit made clear that the
“substantial chance test” applies in bid protests involving a challenge to a sole source award.
Myers, 275 F.3d at 1370; see also, Digitalis, 664 F.3d at 1385 (holding that “[w]e see no reason
to limit [the substantial chance] rule to competitive procurements.”).

        The Federal Circuit has also recognized that, in the context of a challenge to a sole source
award, a plaintiff must show that it would have been able to compete for the contract—i.e., that
the bidder or offeror was qualified—to satisfy the substantial chance test. Myers, 275 F.3d at
1370-71; Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1085 (Fed. Cir. 2001).
This standard is not high. “To have standing, the plaintiff need only establish that it ‘could
compete for the contract’ if the bid process were made competitive.” Myers, 275 F.3d at 1370
(emphasis added) (quoting Impresa, 238 F.3d at 1334). But, the mere fact that a protestor might
have submitted a bid or offer, alone, is not sufficient to establish standing.3 Id.

        In light of these legal standards, the Court inquires here as to whether CliniComp could
have competed for the Cerner Contract if the procurement process for that contract had been
competitive, to determine whether CliniComp has standing. Myers, 275 F.3d at 1370-71; see
also Orion, 704 F.3d at 1349. When applying this test to the facts of this case, the Court
concludes that the answer to this question must be no for several reasons.

        First, while it is undisputed that CliniComp is a long-time, incumbent provider of EHR
systems, and that CliniComp has provided such services to the VA, the evidence before the
Court shows that CliniComp could not have competed for the planned contract to provide the
VA’s new electronic health records system. Pl. Resp. at 8; see also Compl. at 1-3; Compl. Ex.
10 at 1-2. In that regard, the administrative record shows that cost of the VA’s planned contract
significantly exceeds the value of the government contracts that CliniComp has previously


3
  The Federal Circuit has held the Court may apply a different test to determine direct economic
interest—namely, whether a plaintiff has a “non-trivial economic interest” in a particular government
procurement—in certain pre-award bid protest matters involving a challenge to the terms of a solicitation.
Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1362 (Fed. Cir. 2009). But, the Federal
Circuit has also recognized that the “non-trivial economic interest” test does not necessarily apply to all
pre-award bid protests. Orion Tech., Inc. v. United States, 704 F.3d 1344, 1349 (Fed. Cir. 2013).

                                                                                                        19
performed. Specifically, the administrative record shows that the subject contract is expected to
cost $[***] billion, to be spent over a 10-year period. AR at 2135. While there is no dispute that
CliniComp has successfully performed under government contracts to provide EHR services to
the VA and DoD, CliniComp does not dispute that it has not performed a government contract
valued at, or near, the multi-billion dollar value anticipated for the Cerner Contract. Pl. Resp. at
8-9; Def. Mot. at 22-23. And so, CliniComp has provided no evidence to show that it has
experience performing under a government contract of comparable value to the contract at issue
in this case. Oral Arg. Tr. at 17:5-22.

       CliniComp also fails to show that it has experience providing EHR services for the
substantial number of facilities that will be covered by the VA’s planned contract with Cerner.
In this regard, the record evidence shows that the services to be provided under the Cerner
Contract will cover approximately 1,600 VA health care sites located across all 50 states. AR at
1. The administrative record also reflects that, during the past three years, the VA and DoD have
collectively treated more than 3.7 million patients at their respective health care facilities. AR at
423.

       By comparison, CliniComp represents that it provides EHR services for 44 VA health
care facilities nationwide and 56 DoD medical treatment facilities and clinics worldwide.
Compl. Ex. 10 at 1-2. Although CliniComp does not indicate how many patients are treated at
these particular facilities, it is reasonable for the Court to conclude that the number of patients
treated at these 100 facilities would be significantly less than the millions of patients collectively
treated by the VA and the DoD worldwide.

       Lastly, the administrative record also makes clear that CliniComp has no comparable
experience performing the comprehensive tasks required under the VA’s planned contract with
Cerner. In this regard, the record evidence shows that the Cerner Contract will be a
comprehensive, multi-year contract to revamp the VA’s entire electronic health records system.
AR 1-5, 2131-2149. For example, the Secretary’s D&F describes the Cerner Contract as an
“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.” AR at 1.



                                                                                                      20
       The Secretary’s D&F also makes clear that Cerner will:
       provide the full scope of services, including integration, configuration, testing,
       deployment, hosting, organizational change management, training, and
       sustainment, and licenses necessary to deploy the DoD’s EHR system in a manner
       that meets VA needs.

Id. at 5; see also id. at 2146 (noting that the awardee will “operate, repair, and maintain systems,
applications, and [information technology] environments in support of the EHR and/or system
components for production environments.”).

       Again, by comparison, CliniComp has not shown that it has any experience providing
such comprehensive services. In response to the Court’s question about CliniComp’s experience
performing under a contract of this nature during oral argument, CliniComp argued that it could
compete for the Cerner Contract because “CliniComp provides [electronic] health record
services to the VA and to the DoD presently.” Oral Arg. Tr. at 17:7-9. But, CliniComp
acknowledges in this litigation that its experience has involved providing in-patient EHR
services at approximately 100 government facilities. See Compl. Ex. 10 at 1-2. It is undisputed
that the Cerner Contract will require support of outpatient, as well as in-patient services, at more
than ten times this number of facilities. See AR at 5, 2135-36, 2145-47.

       While the Court agrees that CliniComp need not provide exhaustive proof of its
capabilities to establish standing, CliniComp must at least show that it could compete for the
Cerner Contract. Pl. Resp. at 9; see Myers, 275 F.3d at 1370-71. The evidence before the Court
makes clear that CliniComp has not shown that CliniComp has the kind of experience that would
enable it to compete for the work contemplated by the VA’s planned contract with Cerner. And
so, the Court must conclude that CliniComp lacks standing to bring this matter. Myers, 275 F.3d
at 1370-71.

       The Court is also not persuaded by CliniComp’s argument that it has standing because
CliniComp can offer an alternative solution that could meet the VA’s needs. See Tr. at 20:9-25.
Even if true, the question before the Court is not whether CliniComp could offer the VA an
alternative solution. But, rather, whether CliniComp could compete for the contract that the
Secretary has decided to award to Cerner. Myers, 275 F.3d at 1370 (quoting Impresa, 238 F.3d
at 1334) (“To have standing, the plaintiff need only establish that it ‘could compete for the
contract’ if the bid process were made competitive.”). As discussed above, CliniComp has not

                                                                                                  21
shown that it could compete for the Cerner Contract. And so, CliniComp’s argument misses the
mark.

        CliniComp’s argument that it need not prove that it is a qualified bidder, because the
requirements for the Cerner Contract are unknown, is similarly without merit. Oral Arg. Tr.
23:19-28:13. The administrative record contains ample evidence regarding the nature and scope
of the Cerner Contract. In particular, the D&F states that:
        The contract will . . . address all EHR functions supporting clinical care including
        revenue cycle, in-patient, ambulatory, as well as home care, ancillaries, and
        specialties to include dental. The contract will also address non-clinical core
        functional requirements, which may include inventory management/supply chain
        capabilities.

AR at 5. The acquisition plan for the contract also states that the Cerner Contract will be
implemented in 48 phases, which will include site visits, user training, and onsite support. Id. at
2138-39. The acquisition plan also states that “[t]his acquisition, at a minimum, shall include the
full scope of services and products necessary to deploy the DoD EHR solution in a manner that
meets the needs of the VA from Cerner.” Id. at 2145. The anticipated services include, among
other things: “project management;” “planning;” “systems/software engineering;” “data
management;” “architecture design and development;” and “business intelligence and data
analytics.” Id. And so, the administrative record shows that the requirements for the Cerner
Contract are known and that the Cerner Contract calls for comprehensive EHR system services.

        Given the weight of this evidence, CliniComp has simply not met its burden to establish
standing.4 And so, the Court must dismiss this action for lack of subject-matter jurisdiction.
RCFC 12(b)(1).

        C.      The Administrative Record Supports The Secretary’s Decision

         Because the Court finds that CliniComp lacks standing to challenge the Secretary’s sole
source award decision, the Court need not reach the merits of CliniComp’s claims. Nonetheless,

4
  Even if the Court applied the “non-trivial competitive injury” test that CliniComp proposes to determine
standing, CliniComp fails to meet this standard, because it has not put forward sufficient information to
show that it would be a qualified bidder for the VA’s planned contract. See IHS Glob., Inc. v. United
States, 106 Fed. Cl. 734, 746 n.8, 746-47 (2012) (citing Myers, 275 F.3d at 1370-71) (requiring the
protester to show that it is a qualified bidder under the non-trivial economic injury test); Def. XMJAR at
20 n.6.


                                                                                                       22
the Court observes that the administrative record appears to support the Secretary’s sole source
award decision. And so, even if CliniComp could establish that it has standing to bring this
action, CliniComp is not likely to prevail upon the merits of any of its claims.

       In this regard, the administrative record shows that the Secretary’s D&F complies with
the requirements of FAR §§ 1.704 and 6.302-7. FAR § 1.704 requires that:

       Each D&F shall set forth enough facts and circumstances to clearly and
       convincingly justify the specific determination made. As a minimum, each D&F
       shall include, in the prescribed agency format, the following information:
               (a) Identification of the agency and of the contracting activity and specific
                   identifications of the document as a Determination and Findings.
               (b) Nature and/or description of the action being approved.
               (c) Citation of the appropriate statute and/or regulation upon which the
                   D&F is based.
               (d) Findings that detail the particular circumstances, facts, or reasoning
                   essential to support the determination. Necessary supporting
                   documentation shall be obtained from appropriate requirements and
                   technical personnel.
               (e) A determination, based on the findings, that the proposed action is
                   justified under the applicable statute or regulation.
               (f) Expiration date of the D&F, if required (see 1.706(b)).
               (g) The signature of the official authorized to sign the D&F (see 1.706)
                   and the date signed.
48 C.F.R. § 1.704.

       A review of the Secretary’s D&F makes clear that this document satisfies the
aforementioned requirements with regards to form. The D&F identifies the VA as the relevant
agency and also identifies that this document contains the Secretary’s Determination and
Findings. AR at 1. The D&F also contains a description of the award of the Cerner Contact,
cites the appropriate statutes and VA regulations upon which the D&F is based, details the
particular circumstances and facts essential to support the Secretary’s award decision, and
contains the Secretary’s signature. Id. at 1-5.

       The Secretary’s D&F also appears to clearly and convincingly justify the Secretary’s
decision to pursue a single common EHR system with the DoD. Specifically, the D&F states
that “[a] Veteran’s complete and accurate health record in a single common system is critical to


                                                                                                23
providing seamless, high-quality, [and] integrated care and benefits . . . .” Id. at 1. With regards
to improving patient safety, the D&F further states that “[c]ommon workflows, common
cybersecurity architecture, and terminology based on national standards, along with a patient
portal that transitions with the patient from active duty to Veteran status, will result in improved
medical outcomes, improved patient safety, and a consistent patient-physician relationship.” Id.
at 3.

        The D&F also states that a single common system will “facilitate the transition of active
duty military members to VA,” because “[r]ecords residing in a single common system will
eliminate the reliance on complex clinical interfaces or manual data entry between DoD and
VA.” Id. at 2. In addition, the D&F states that having a single common system will provide
“faster disability determinations because the records will already be in a common system.” Id. at
3.

        The Court notes, however, that there is less evidence in the administrative record to
specifically support the Secretary’s decision to award the subject contract to Cerner. Pl. MJAR
14-18; see generally AR. In this regard, the D&F states that:

        [The] VA can take advantage of standard commercial practice by contracting
        directly with Cerner as the prime contractor. . . . As the prime contractor and
        EHR software developer, Cerner is best positioned to not only lead software
        implementation, but also to conduct a robust review of VA clinical processes for
        quality improvement and business transformation.
AR at 3-4. But, the administrative record does not provide any other information to explain why
the Secretary selected Cerner to perform this contract. See generally id. at 230-347, 418-36,
733-1040, 1129-2149.5


5
  During oral argument, the government pointed to a February 2014 United States Government
Accountability Office (“GAO”) report and the congressional testimony of several GAO officials as
evidence to support the Secretary’s decision to award the contract at issue to Cerner. Oral Arg. Tr. at
42:15-43:1. But, a review of the GAO report cited by the government shows that this report provides a
summary of the VA’s longstanding challenges in ensuring interoperability with DoD in connection with
the VA’s EHR system and that this report does not specifically address the award to Cerner. AR at 15-61.
The March 29, 2017 congressional testimony of the program executive officer for defense healthcare
management systems, which was also cited by the government during oral argument, also does not
specifically address the basis for the Secretary’s decision to award the contract at issue to Cerner. AR at
408-17. In fact, the testimony makes no mention of Cerner’s interoperability capabilities with regards to
the VA. AR at 411.


                                                                                                        24
       Notwithstanding this concern, as discussed above, the evidence in this case demonstrates
that CliniComp lacks standing to bring this action. And so, for this reason, the Court DENIES
as moot the parties’ respective cross-motions for judgment on the administrative record.

       D.      CliniComp Is Not Entitled To Injunctive Relief
       CliniComp has also moved for preliminary and permanent injunctions to enjoin the
Secretary from making the planned sole source award to Cerner, pursuant to RCFC 65. See
generally Pl. Mot. As discussed above, CliniComp has not established that the Court possesses
subject-matter jurisdiction to consider this matter. And so, the Court must also DENY
CliniComp’s request for injunctive relief. Argencord Mach. & Equip., Inc. v. United States, 68
Fed. Cl. 167, 176 (2005) (holding that a plaintiff that has not actually succeeded upon the merits
of its claim cannot prevail upon a motion for injunctive relief.).

       E.      The Court Denies The Parties’ Requests To File Supplemental Briefs

       As a final matter, the Court denies CliniComp’s and Cerner’s belated requests to file
supplemental briefs in this matter. On October 4, 2017, Cerner filed a motion for leave to file a
supplemental brief to provide additional record citations pertaining to certain factual matters
raised during oral argument. See generally Int. Mot. to Supp. On October 6, 2017, CliniComp
filed a consolidated opposition and response to Cerner’s motion for leave to file a supplemental
brief and motion for leave to file a supplemental brief. See generally Pl. Mot. to Supp.

       This Court has inherent power “to control the disposition of the causes on its docket with
economy of time and effort.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (recognizing
the right of courts to stay proceedings). To that end, the Court, in consultation with the parties,
established an expedited briefing schedule for the timely resolution of this pre-award bid protest
dispute. See generally Scheduling Order, August 22, 2017. Following the completion of the
briefing on the parties’ motions to dismiss and cross-motions for judgment on the administrative
record, the Court also scheduled oral argument to afford each party the opportunity to further
address the issues to be resolved in this matter. See generally Scheduling Order, Sept. 26, 2017.

       The motions for leave to file supplemental briefs filed by Cerner and CliniComp have
been submitted well beyond the conclusion of the briefing schedule for this matter and after all
parties have presented their oral arguments. Further briefing with regards to these matters would
also serve to unnecessarily delay the resolution of this pre-award bid protest. And so, for this

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reason, the Court DENIES Cerner’s motion for leave to file a supplemental brief and DENIES
CliniComp’s motion for leave to file a supplemental brief.

V.      CONCLUSION

        In sum, CliniComp has not met its burden to show that it has standing to pursue this pre-
award bid protest dispute. Rather, the record evidence shows that CliniComp could not compete
for the VA’s planned contract to provide the agency’s new electronic health records system if the
procurement process for that contract were competitive. And so, the Court must dismiss this
matter for lack of subject-matter jurisdiction. RCFC 12(b)(1).

        Because CliniComp has not established standing, CliniComp similarly fails to establish
that it is entitled to the injunctive relief that it seeks in this matter. In addition, the Court strikes
the Jefcoat and Safran declarations submitted in support of Cerner’s motion to dismiss and
certain citations contained in the government’s motion to dismiss and cross-motion for judgment
upon the administrative record, because the administrative record and CliniComp’s complaint
contain sufficient information for the Court to resolve the parties’ pending motions. Finally, the
Court denies the belated requests by Cerner and CliniComp to file supplemental briefs in this
matter, because supplemental briefing at this late stage would unnecessarily delay the resolution
of this matter.

        And so, for the foregoing reasons, the Court:

     1. GRANTS CliniComp’s motions to strike and to amend its motion to strike;

     2. GRANTS the government’s and Cerner’s respective motions to dismiss this matter for
         lack of subject-matter jurisdiction;

     3. DENIES as moot the parties’ respective cross-motions for judgment on the
         administrative record;

     4. DENIES CliniComp’s motion for preliminary and permanent injunctions;

     5. DENIES Cerner’s and CliniComp’s respective motions for leave to file supplemental
         briefs; and

     6. DISMISSES the complaint.

        Each party to bear its own costs.

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       Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on August
23, 2017. This Memorandum Opinion and Order shall therefore be filed UNDER SEAL. The
parties shall review the Memorandum Opinion and Order to determine whether, in their view,
any information should be redacted in accordance with the terms of the Protective Order prior to
publication. The parties shall FILE a joint status report identifying the information, if any, that
they contend should be redacted, together with an explanation of the basis for each proposed
redaction on or before November 9, 2017.

       IT IS SO ORDERED.




                                                   s/ Lydia Kay Griggsby
                                                   LYDIA KAY GRIGGSBY
                                                   Judge




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