Corel Corp. v. U.S., CIV. A. 99-3348 (RWR).

CourtUnited States District Courts. United States District Court (Columbia)
Citation165 F.Supp.2d 12
Docket NumberNo. CIV. A. 99-3348 (RWR).,CIV. A. 99-3348 (RWR).
PartiesCOREL CORPORATION Plaintiff, v. UNITED STATES of America Defendant.
Decision Date17 September 2001
165 F.Supp.2d 12
UNITED STATES of America Defendant.
No. CIV. A. 99-3348 (RWR).
United States District Court, District of Columbia.
September 17, 2001.

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David M. Nadler, Gilbert, Heintz & Randolph, Washington, DC, John Theodore Kotelly, Dickstein, Shapiro, Morin & Oshinsky, L.L.P., Washington, DC, for Corel Corp.

Claire M. Whitaker, U.S. Attorney's Office, Charles D. Raymond, Assoc. Sol. for Employment and Training Legal Services, Scott Glabman, Office of Sol., U.S. Dept. of Labor, Washington, DC, for U.S.

Thomas Christopher Papson, McKenna & Cuneo, L.L.P., Washington, DC, for Government Technology Services, Inc.


ROBERTS, District Judge.

Corel Corporation ("Corel"), a computer software manufacturer, has brought this action seeking declaratory and injunctive relief to enjoin the United States Department of Labor ("DOL") from implementing its decision to standardize its software applications exclusively to software manufactured by Microsoft Corporation ("Microsoft"). Plaintiff has filed an application for a preliminary injunction and was granted a consolidated hearing on the merits. The government has countered that this action must be dismissed because this Court lacks subject matter jurisdiction over Corel's claims and that, even if jurisdiction is proper, Corel has failed to state a claim on which relief can be granted. In the alternative, the government has moved for summary judgment based on the administrative record. Because I find that the manner in which DOL conducted its

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procurement of Microsoft software neither violated the applicable federal procurement statute nor was unreasonable, the government's motion for summary judgment will be granted and Corel's motion for a preliminary injunction will be denied.


I. DOL's Decision to Standardize to Microsoft

In 1996, Congress passed the Federal Acquisition Reform Act and the Information Technology Management Reform Act, Pub.L. No. 104-106, 110 Stat. 659 (1996) (codified in scattered sections of 40 U.S.C. and 41 U.S.C.), which together came to be known as the Clinger-Cohen Act. The Clinger-Cohen Act required federal agencies to develop a comprehensive plan for their information technology systems and acquisitions to assure maximum efficiency in those acquisitions consistent with the agency's strategic and management goals. See 40 U.S.C.A. § 1425(d) (West Supp. 2000).

In accordance with the Clinger-Cohen Act, DOL began to reassess its information technology systems. In or around April of 1998, DOL created a Management Review Council ("MRC") to oversee DOL's information technology acquisitions and retained Abacus Technology Corporation ("Abacus") to advise the MRC. (Administrative Record ("AR") Tab 12 at 381.) Abacus subsequently issued two reports, in August and September of 1998 respectively, which assessed DOL's existing information technology infrastructure and recommended improvements. (AR Tab 61; Tab 64.) In November of 1998, the MRC created the Technical Review Board ("TRB") to serve as the MRC's first-tier review board of Abucus's findings. (AR Tab 49 at 1664-65, 1669.)

The Abacus reports revealed that DOL was operating primarily in what is known as a "best of breed" software environment, meaning that several types of software applications from various manufacturers were being used on DOL computers. (AR Tab 12 at 381-83; AR Tab 61 at 2118; AR Tab 64 at 2314-16.) For example, a given component within DOL might have been using Corel's WordPerfect for word processing, Lotus 1-2-3 for spreadsheets, and Microsoft Powerpoint for graphics design. Abacus also found that different components of DOL were not only using different brands of software products, but were also using different versions of each brand of product. (AR Tab 36 at 845-46.) For instance, some components would use Microsoft Word for their word processing while others would use Corel WordPerfect. (Id.) Of the components using WordPerfect, some would be using WordPerfect version 6.1 while others would be using the more recent WordPerfect version 8. (Id.) According to DOL, this lack of standardization resulted in continued computer problems which DOL attributed largely to lack of "interoperability" between the operating system and the software applications and a lack of "integration" between the software applications themselves. (AR Tab 12 at 383-84; Tab 12a at 392a-392q; Tab 64 at 2314-16.)

In light of these findings, the MRC decided to explore standardizing to a single office automation "suite" (i.e. a single package of applications consisting of word processing, spreadsheet, data base, and graphics design programs). (AR Tab 55 at 1839.) It instructed Abacus to collect information on available office suites and selected an evaluation team to recommend which office suite DOL should purchase. (AR Tab 36; Tab 53.) The two competing office suites identified as potentially meeting DOL's needs were Microsoft Office and Corel Office Suite. (AR Tab 12 at 387.)

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Microsoft Office was the clear favorite early on and throughout the process. Abacus had recommended conversion to Microsoft Office at the outset (AR Tab 61 at 2120), although that recommendation was not included in Abacus's final report comparing Microsoft Office and Corel Office Suite. (AR Tab 36.) However, a draft justification for choosing Microsoft Office over Corel Office Suite was circulated to DOL's constituent agencies only two days after Microsoft representatives made their presentation to the DOL evaluation team on March 24, 1999. (AR Tab 41 at 1349a-1349d; Tab 42.) Corel did not make its presentation until April 15, 1999, (AR Tab 17 at 466; Tab 28 at 671-72), and provided updated cost and pricing data shortly thereafter. (AR Tab 27 at 666-67.)

On April 19, 1999, the evaluation team recommended to the TRB that Microsoft Office be chosen as DOL's standard office suite. (AR Tab 22 at 587-608.) The evaluation team's justification cited Microsoft Office's compatibility with other Microsoft products being used throughout DOL, particularly Microsoft's operating system. (Id. at 601.) The justification also noted the perceived superior "integration" amongst the various components of Microsoft Office (i.e. the word processor, spreadsheet, and data base programs all worked together smoothly). (Id.) The evaluation team added that Microsoft Office was the market leader in office suites, having been "installed on more than 80 percent of all personal computers" and noted that "the majority of the Department is already using or planning to move to Microsoft Office." (Id. at 601) (emphasis in original). Finally, the evaluation team asserted that a conversion to Microsoft Office would be less expensive than a conversion to Corel Office Suite. (Id. at 604.)

In late May or early June of 1999, the TRB concurred with the evaluation team and subsequently issued its final recommendation to the MRC on June 15. (AR Tab 12.) The TRB adopted the evaluation team's reasoning that DOL's predominant use of Microsoft's operating system, the fact that many agencies within DOL had were already using or planned to convert to Microsoft, Microsoft Office's reputation from market research as "the top-rated automation suite for the value it provides to its users," and the lower cost of converting to Microsoft as opposed to Corel all militated in favor of selecting Microsoft Office over Corel Office Suite. (Id. at 385.) On June 17, 1999, the MRC officially adopted the TRB's recommendation that Microsoft Office be chosen. (AR Tab 11.)

The process leading up to the MRC's final recommendation was not without controversy. Several DOL constituent agencies, particularly those that were using Corel software, roundly criticized the analysis and purported justifications for standardizing to Microsoft-only software. (AR Tab 8 at 337-44, Tab 20 at 476-84.) These agencies expressed serious concerns about the adequacy of the cost-benefit analysis that had been done and strongly questioned the soundness of Abacus's technical assessment of the benefits associated with switching completely to Microsoft. (Id.) Moreover, Corel repeatedly expressed its concern in writing to DOL officials regarding DOL's purported failure to comply with applicable federal procurement rules which, in Corel's view, required DOL to provide Corel with more specific information about DOL's minimum technical specifications so that Corel could make a comprehensive presentation of its product. (AR Tab 9 at 354-56; Tab 17 at 460-61.) Although not every criticism and complaint was resolved, DOL proceeded with its decision to standardize to Microsoft.

II. DOL's Implementation of the Standardization Decision

To implement its standardization decision, DOL obtained quotes on Microsoft

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Office from several authorized resellers of Microsoft products and ultimately accepted an offer from Government Technologies Services, Inc. ("GTSI"). (AR Tab 3 at 10-12.) GTSI is a National Institute of Health ("NIH") multiple award/delivery order contractor authorized to resell brand name computer products to federal government agencies through the "Electronic Computer Store Program" operated by the NIH. The Electronic Computer Store Program is an indefinite delivery/indefinite quantity ("IDIQ") contract as well as a government-wide agency contract ("GWAC") which allows other federal agencies to place delivery orders for computer products under NIH's contract on an as needed basis.

The agreement between DOL and GTSI gives DOL the right to place delivery orders with GTSI under the NIH contract over three years at a total cost of approximately $2.8 million. (AR Tab 3A at 13.) On July 8, 1999, DOL's Office of the Assistant Secretary for Administration and Management ("OASAM") placed with GTSI a $350,000 delivery order for various Microsoft software...

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