Information Handling v. Defense Automated Printing

• Decision Date: 12 August 2003
• Docket Number: No. 02-5192.,02-5192.
• Citation: 338 F.3d 1024
• Parties: INFORMATION HANDLING SERVICES, INC., Appellant, v. DEFENSE AUTOMATED PRINTING SERVICES, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1024

338 F.3d 1024

INFORMATION HANDLING SERVICES, INC., Appellant, v. DEFENSE AUTOMATED PRINTING SERVICES, et al., Appellees.

No. 02-5192.

United States Court of Appeals, District of Columbia Circuit.

Argued April 17, 2003.

Decided August 12, 2003.

Appeal from the United States District Court for the District of Columbia (No. 98cv02796).

David T. Ralston, Jr. argued the cause for appellant. With him on the briefs was John G. DeGooyer.

W. Mark Nebeker, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and HENDERSON and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Information Handling Services, Inc. brought suit alleging that the Department of Defense violated statutory and regulatory requirements by developing and maintaining an Internet-accessible database for the dissemination of government documents, without first determining whether the private sector could do so at lower cost. The district court dismissed the complaint for lack of standing and, in the alternative, granted summary judgment. We reverse.

I

The Defense Automated Printing Services (DAPS) is the component of the Department of Defense (DoD) that is responsible for managing, maintaining, and distributing over 50,000 documents relating to unclassified military specifications and standards. DAPS lists the documents in the Department of Defense Index of Specifications and Standards (DoDISS). The Department uses those documents (hereinafter "DoDISS documents") to describe the products or services that it wishes to obtain, and private contractors and government agencies rely on them in responding to DoD solicitations.

Beginning in the late 1970s, the Department sought to automate its management of DoDISS documents. It eventually created an official electronic index of military standardization documents, known as the Acquisition Streamlining and Standardization Information System (ASSIST). ASSIST, however, did not contain the text of the documents, which, until the late 1990s, were distributed to government agencies, defense contractors, and the general public only in hard copy.

Information Handling Services, Inc. (IHS) is a commercial publisher of government and industrial standards and specifications. For many years, the company has obtained DoDISS documents from the government and made them available to its customers on a subscription basis. In the late 1980s, IHS developed a searchable electronic database of DoDISS documents, called the DoDISS Plus Index, which the company provided on CD-ROM to subscribing customers. Users of this "value-added" database could search for particular specifications or standards by document number, title, subject, or keyword. Like users of ASSIST, however, IHS customers who identified their desired document still had to obtain the full-text version from IHS or the Department in hard copy. Then, in the early 1990s, IHS produced a CD-ROM database of full-text DoDISS documents that it linked to its DoDISS Plus Index, allowing a subscriber to search for and immediately print a particular military specification or standard. The company has continued to develop and market this product, and current subscribers can access IHS' database on CD-ROM or through the Internet, and can retrieve full-text DoDISS documents in various electronic formats, including portable document file (PDF) versions.

The present dispute concerns the Defense Department's development of what the plaintiff describes as a document search and retrieval system similar to the enhanced DoDISS Plus Index. The government's database was developed in the mid-1990s. On October 1, 1998, an Internet version called ASSIST On-Line became fully operational, allowing users to search for and immediately retrieve current PDF versions of DoDISS documents.

On November 17, 1998, IHS filed suit against various officials and components of the Department of Defense, including DAPS (hereinafter "DAPS" or "the Department"), in the United States District Court for the District of Columbia. IHS' complaint, brought under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., contained two causes of action. First, IHS asserted that DAPS had developed and was continuing to maintain ASSIST On-Line without first determining through a bona fide cost comparison that it could do so at lower cost than the private sector, as required by 10 U.S.C. § 2462 and the relevant DoD procurement regulation, 32 C.F.R. § 169.4. In the complaint's second count, IHS contended that, by allowing users to access ASSIST On-Line free of charge, DAPS was violating the requirement of 10 U.S.C. § 2328 that, if "required to release technical data under" the Freedom of Information Act, the agency must recoup from the person requesting the documents "all reasonable costs attributable to search, duplication, and review." IHS sought a declaratory judgment as well as injunctive relief barring DAPS from "developing, marketing, implementing, distributing, and selling" ASSIST On-Line without first undertaking an appropriate cost comparison and recovering the government's costs.

On April 18, 2002, after denying IHS' requests to take discovery, the district court dismissed plaintiff's first count on the ground that IHS lacked standing to assert it. In the alternative, the court granted summary judgment against the plaintiff on that count, as well as on the second count. See Information Handling Servs., Inc. v. Defense Automated Printing Servs., No. 98-2796 (D.D.C. Apr. 18, 2002). IHS filed a timely notice of appeal.

II

Before turning to the legal analysis, we pause for a moment to clarify the scope of the issues on appeal. As just mentioned, IHS' complaint was stated in two counts: the first premised on alleged violations of § 2462 and the Department's procurement regulation, and the second on an alleged violation of § 2328. The plaintiff's appellate briefs directly addressed only the first count, and at oral argument IHS confirmed that it was not appealing the court's grant of summary judgment on the second. We therefore restrict our review to the claimed violations of § 2462 and the regulation.

Section 2462 states as follows:

§ 2462. Contracting for certain supplies and services required when cost is lower

(a) In general. — Except as otherwise provided by law, the Secretary of Defense shall procure each supply or service necessary for or beneficial to the accomplishment of the authorized functions of the Department of Defense (other than functions which the Secretary of Defense determines must be performed by military or Government personnel) from a source in the private sector if such a source can provide such supply or service to the Department at a cost that is lower ... than the cost at which the Department can provide the same supply or service.

(b) Realistic and fair cost comparisons. — For the purpose of determining whether to contract with a source in the private sector for the performance of a Department of Defense function on the basis of a comparison of the costs of procuring supplies or services from such a source with the costs of providing the same supplies or services by the Department of Defense, the Secretary of Defense shall ensure that all costs considered... are realistic and fair.

10 U.S.C. § 2462. The relevant procurement regulation, 32 C.F.R. § 169.4, states in pertinent part:

(b) Achieve Economy and Quality through Competition. Encourage competition with the objective of enhancing quality, economy, and performance. When performance by a commercial source is permissible, a comparison of the cost of contracting and the cost of in-house performance shall be performed to determine who shall provide the best value for the Government....

(d) Rely on the Commercial Sector. DoD Components shall rely on commercially available sources to provide commercial products and services except when required for national defense, when no satisfactory commercial source is available, or when in the best interest of direct patient care. DoD Components shall not consider an in-house new requirement, an expansion of an in-house requirement, conversion to in-house, or otherwise carry on any [commercial activities] to provide commercial products or services if the products or services can be procured more economically from commercial sources.

32 C.F.R. § 169.4(b), (d); see also id. § 169a.4(c)-(d).

The first count of the plaintiff's complaint alleged that DAPS violated these statutory and regulatory requirements by (1) developing, and (2) maintaining ASSIST On-Line without undertaking a cost comparison study to determine whether DAPS could "develop and maintain a digitized database for DoDISS documents more economically than commercial sources." Compl. ¶ 29. At argument before this court, IHS abandoned its claim regarding the development of ASSIST On-Line. Plaintiff's counsel made clear that, although IHS still believes that DAPS violated 10 U.S.C. § 2462 and 32 C.F.R. § 169.4 by developing the product inhouse, it does not contend that the statute or regulation requires the government to discard a product that it has already developed — even if it was developed in violation of the law. Accordingly, because ASSIST On-Line was developed during the mid-1990s and became operational in 1998 — and hence was completed before the plaintiff filed suit — IHS has withdrawn any claim to relief for the development of the website and associated database.

This leaves only one claim remaining for our consideration: IHS' charge that DAPS is currently violating § 2462 and the Department's regulation by maintaining ASSIST On-Line without considering whether the private sector can do so at lower cost. The district court dismissed that claim on the ground that IHS lacked standing to raise it. In the...