The judge's written opinion rejecting Oracle's protest against the JEDI cloud contract is now out. It's also now becoming clear that any future protests will have a hard time gaining traction.
It would literally take an act of Congress or a presidential intervention to stop the Defense Department from awarding the JEDI cloud infrastructure contract to either Microsoft or Amazon Web Services.
That’s my conclusion after reading the newly-released opinion by U.S. Court of Federal Claims Judge Eric Bruggink that ruled against Oracle's protest against JEDI.
Yes: I said earlier that the judge's decision might lay the ground work for a future protest, but that was before I read the decision.
Bruggink's opinion systematically dismantles each of Oracle’s arguments that it should still be in the running for JEDI. The company complained about possible conflicts of interest, requirements that were too narrow and that DOD’s single-award strategy was wrong.
Bruggink denied Oracle’s claims of conflicts of interest by outlining the type of activities and work undertaken by several people who worked for AWS, then DOD and then back to AWS during the time JEDI was being developed.
In quoting from the contacting officer investigative report, Bruggink said the conflicts either didn’t exist or were not significant. Even if they were significant, they had been mitigated.
Besides, Oracle couldn’t get through the gateway requirement so they were eliminated from consideration anyway.
There was one area where the judge agreed with Oracle, but because of the gateway issue it didn’t matter.
The judge agreed with Oracle’s argument that DOD’s decision to make JEDI a single award contract rather than a multiple-award contract violated some procurement rules.
So DOD violated some rules, but that doesn’t really matter as far as Oracle is concerned because it couldn’t get past the gateway.
But if DOD violated procurement rules in justifying a single award over multiple awards, does it matter going forward?
If either Microsoft or AWS lose the competition, can they use the judge’s ruling as grounds for a protest?
I don’t think so. Because they should have raised that objection by now. Once the award is made, it might just be too late for a protest on those grounds.
While I thought that a post-award protest could raise the issue of conflicts of interest again, I’m very doubtful now that I have read Bruggink’s decision. Something new would have to be raised.
A post-award protest would most likely have to be something that raises problems with the evaluation of the proposals. That’s a common complaint in protests but also a challenge to win.
Is JEDI protest-proof at this stage? Maybe.
But with the president talking about a review and some members of Congress asking for a review, who knows what will happen from here. Congress likely can’t act fast enough and I’m not sure President Trump will follow through on his rhetoric.
JEDI will happen. Microsoft or AWS will win. The losing bidder will be unhappy but probably won’t protest. JEDI has a large $10 billion ceiling but it will not be the only cloud at the Defense Department. It won’t even be the cloud to rule all clouds.
A couple years from now we might look back and think, JEDI, what was the big deal?
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