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ANADAC, INC. v. U.S. DEPT. OF JUSTICE

February 19, 1999

ANADAC, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT, AND DIGITAL BIOMETRICS, INC., INTERVENORDEFENDANT.



The opinion of the court was delivered by: Urbina, District Judge.

MEMORANDUM OPINION

Denying Plaintiff's Request for a Preliminary Injunction

I. INTRODUCTION

Having considered the plaintiff's motion, and oppositions thereto, as well as the administrative record, the court concludes that the plaintiff has failed to show a substantial likelihood of success on the merits. Accordingly, the court denies the plaintiff's motion for a preliminary injunction. Because of this ruling, the court also denies ANADAC's motion for expedited discovery and to shorten the time for response. Additionally, the court will not grant the INS leave to file its surreply memorandum, and the court will deny as moot ANADAC's motion to strike the surreply.

II. BACKGROUND

On September 10, 1998, the INS solicited a price quote for the purchase of 276 live-scan electronic fingerprint scanning systems. (Def.'s Opp'n at 2.) The INS planned to use these fingerprint scanning systems to capture the fingerprint images of naturalization applicants and to electronically submit the images to the Federal Bureau of Investigation. (Compl. at ¶ 8.) The INS sought this system after Congress inserted a provision in the 1998 Department of Justice Appropriation Act disallowing the use of fingerprint cards in criminal background checks. (Administrative Record, Tab 2, p. 1.)

The INS sought proposals from three companies, including ANADAC and Digital Biometrics, using the Blanket Purchase Agreement method of simplified acquisition set forth in Part 13 of the Federal Acquisition Regulations ("FAR").*fn1 (See Compl. at ¶ 9.) The INS request included a Statement of Work, which set forth the technical and contract requirements. The Statement of Work stated that the INS would select a contractor "based upon the lowest price proposed, with the condition that the apparent lowest-priced bidder will have to demonstrate that their [sic] equipment meets the requirements of this Statement of Work, prior to the award of the order." (Compl. at ¶ 10.) The Statement of Work indicated that the demonstration would occur within five days after the due date and that the INS would evaluate the live-scan systems in accordance with FAR section 11.801 ("under comparable in-use conditions"). (Compl. at ¶ 10.) The Statement of Work stated that deliveries would be "done according to the criteria specified in the BPA [`Blanket Purchase Agreement']." (Administrative R., Tab 10, C.5.)

The three companies submitted bids by the September 18, 1998 closing date. (See Mem. of Intervenor in Opp'n at 12.) ANADAC submitted its bid for $9,103,883, (Compl. at ¶ 13), and Digital Biometrics submitted its bid for $8,828,544, $425,338 less than ANADAC's, (Mem. of Intervenor in Opp'n at 12). The INS selected Digital Biometrics as the apparent low bidder and invited Digital Biometrics to demonstrate its compliance with the technical requirements of the Statement of Work on September 23, 1998. (Compl. at ¶ 14.)

On September 25, 1998, ANADAC filed a protest with the General Accounting Office, alleging that Digital Biometrics had failed the technical demonstration and that Digital Biometrics intentionally misrepresented its ability to meet the financial requirements of the Statement of Work. (See Administrative R., Tab 19, pp. 5-7.) By letter dated October 7, 1998, the Comptroller General of the United States dismissed the protest because the INS had not yet awarded the contract for live-scan fingerprint systems, making the protest anticipatory. (Administrative R., Tab 21.)

On January 4, 1999, approximately three months after the first technical demonstration, the INS again invited Digital Biometrics to demonstrate compliance with the technical requirements specified in the Statement of Work. (Compl. at ¶ 22.) On January 8, 1999, the INS notified ANADAC that it had awarded the contract to Digital Biometrics as the low price offeror. (Compl. at ¶ 16.) The contract specified an eleven-month delivery schedule, with the first twelve systems due during the first two months of the contract, followed by an additional forty by the end of the fourth month. (Compl. at ¶ 18.)

ANADAC subsequently brought this seven-count suit, filed under seal, seeking declaratory and injunctive relief to enjoin the INS from proceeding with performance of the contract. ANADAC alleges violations of the Administrative Procedure Act, 5 U.S.C. § 701-706 ; the Competition in Contracting Act, 41 U.S.C. § 253 et seq.; and the Federal Acquisition Regulations, 48 C.F.R. Chapter 1.

ANADAC's suit centers on three claims. First, ANADAC asserts that Digital Biometrics failed to demonstrate its ability to comply with the technical requirements of the Statement of Work and that the INS engaged in improper communications with Digital Biometrics for the purpose of bringing its systems into technical compliance. Second, ANADAC asserts that Digital Biometrics does not have the financial ability to satisfy the contract. Third, ANADAC asserts that the INS improperly allowed Digital Biometrics a relaxed, eleven-month delivery schedule, rather than a 90- or 120-day schedule specified in Digital Biometrics's Blanket Purchase Agreement and Federal Supply Schedule.

ANADAC also moved for expedited discovery and to shorten the time for response. Subsequently, by consent motion, the INS agreed to provide the Administrative Record to ANADAC and Digital Biometrics; the parties agreed to an expedited scheduling order; and ANADAC agreed it would not pursue its application for a temporary restraining order until February 19, 1999. This Memorandum Opinion addresses ANADAC's motion for a preliminary injunction.

III. ANALYSIS

A. Standard for Preliminary ...


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