DOD asks appeals court to end Oracle's JEDI fight

Amazon will eventually have its day in court to challenge the Defense Department’s selection of Microsoft for the JEDI cloud infrastructure contract after a series of motions and rulings.

But Oracle’s own legal fight over its elimination from the competition continues despite its previous legal defeats and the Defense Department is asking a Court of Appeals for the Federal Circuit judge in that case to end it.

In a 114-page filing submitted Dec. 26, attorneys representing the government said DOD’s selection of Microsoft over AWS in October makes Oracle's case largely irrelevant because the crux of Oracle’s allegations involve charges of conflicts of interest involving DOD employees and Amazon. They claim those conflicts affected the potential $10 billion Joint Enterprise Defense Infrastructure procurement.

Oracle filed its lawsuit against DOD over the JEDI downselect in December 2018 and the Court of Federal Claims ruled against the company in July 2019. DOD had narrowed the field to AWS and Microsoft through a set of gateway criteria and other requirements including those for security.

Microsoft’s win of the contract is essentially an elimination of AWS from the competition. AWS' case with the Court of Federal Claims raises different issues than those raised by Oracle, DOD said in its appeals court filing.

For its part, AWS remains involved in the Court of Appeals for the Federal Circuit proceedings surrounding JEDI as an intervenor-defendant alongside DOD given the nature of Oracle’s allegations. That is taking place even as AWS pursues its own protest alleging political influence in the final source selection through a lawsuit filed in November at the Court of Federal Claims, which unsealed the much-redacted complaint in December.

Attorneys representing AWS submitted their own 53-page filing to the Court of Appeals for the Federal Circuit that also argues Oracle’s allegations against Amazon and DOD are moot given that Microsoft was chosen for the contract.

DOD in its appeals court filing defends both the lower court’s ruling against Oracle and the approach of JEDI as a single-award contract, which is arguably the most controversial aspect of this procurement.

Oracle scored one minor victory at the Court of Federal Claims when Judge Eric Bruggink found some fault in DOD’s justification for making the contract a single award, even while conceding that finding was somewhat in tension with previous rulings.

At the same time, Bruggink ruled that Oracle had no standing to make a pre-award protest as it could not meet the gate criteria on in the competition and thus could not have won in the end.

Oracle’s goal in its legal fight remains the same: stop JEDI as it is currently constructed and start it all over again but as a multiple-award contract. The company’s appeal also claims the gate criteria could only be passed by AWS and Microsoft and would not have been used in a multiple-award competition.

But DOD says it would not have to restart the contract even if Oracle were successful in stopping it on grounds that the single-award structure broke some procurement laws.

DOD has told the court it instead would more likely re-open the JEDI procurement, make it a single-award competition again under a “public interest exception” and still choose Microsoft.

The Pentagon’s filing also claims that Oracle would not have been eligible for the contract even if it were a multiple-award competition, which would have included gate criteria.

No dates have been set for oral arguments at the appeals court regarding Oracle’s case or at the Court of Federal Claims for AWS’ lawsuit.

AWS has not asked for a preliminary injunction yet to pause work on JEDI but has said it is keeping that option open.