Oracle files court brief outlining its JEDI appeal
- By Ross Wilkers
- Nov 05, 2019
Oracle is keeping up its fight against the Defense Department’s JEDI cloud infrastructure contract with two familiar refrains: the contract’s single-award structure broke federal procurement laws and it was unfairly tilted toward Amazon Web Services.
A 144-page opening brief filed Friday to the Court of Appeals for the Federal Circuit also has a familiar request by the company: that the judge should order DOD to stop the Joint Enterprise Defense Infrastructure contract and start it all over again but as multiple-award.
The timing of Oracle’s appeal and continued claims of bias in the procurement is curious given that Microsoft won the JEDI contract on Oct. 25 in a head-to-head competition with AWS. Oracle did not make any allegations against Microsoft to either the Government Accountability Office in a bid protest or the Court of Federal Claims when it filed its protest with that court.
Oracle’s brief to the Court of Appeals for the Federal Circuit does not mention the award of JEDI to Microsoft on Oct. 25. In fact, the only event related to JEDI this year mentioned in the brief is the lead contracting officer’s review of potential conflicts of interest surrounding DOD employees who worked for the department and AWS at various points throughout the JEDI procurement process.
Oracle’s continued fight against JEDI appeals a July ruling by the Court of Federal Claims against the company’s claims that it was unfairly ruled out of the competition. In that forum, Judge Eric Bruggink ruled that Oracle did not meet key requirements including gate criteria and thus had no standing to challenge the contract.
DOD in April narrowed the competition through a downselect from four bidders that left Microsoft and AWS as the final two, with Oracle and IBM eliminated. All but AWS have at various points criticized the single-award approach, including Microsoft in a response to a 2017 request for information for JEDI. Microsoft said "DOD's mission is better served through a multi-vendor cloud approach."
Bruggink’s ruling on the legality of JEDI being a single-award contract was not as straight forward as that of Oracle’s standing. The lead JEDI contracting officer’s justification was “reasonably justified,” while another by Defense Department acquisition chief Ellen Lord “does not fit the contract.”
Two different DOD officials must give separate justifications for indefinite-delivery/indefinite-quantity contracts, which JEDI is, to be structured as a single award.
In its case at the Court of Federal Claims, Oracle argued the gate criteria was illegal. But in the appeals court, Oracle says it can now meet the gate criteria and that the Court of Federal Claims should not have used those requirements as a reason to not order DOD to change JEDI from single-award to multiple-award.
Oracle continues to claim that JEDI has been tainted from inception by alleged conflicts of interest involving DOD employees, and in its latest brief said Bruggink incorrectly relied on the contracting officer’s judgment that any conflicts did not affect the contract and were properly mitigated.
The company says DOD should have immediately stopped the JEDI procurement once the potential conflicts were discovered. In this instance, the JEDI contracting officer referred the matter to the DOD inspector general and the procurement went forward.
DOD’s inspector general gave the department the green light to proceed on an award for JEDI.
As of this story’s publication, AWS has not filed a post-award protest to GAO. The company is likely going through an enhanced debriefing process set up by the 2018 National Defense Authorization Act, so it could take weeks to learn whether AWS does protest the award to Microsoft.
Ross Wilkers is a senior staff writer for Washington Technology. He can be reached at firstname.lastname@example.org. Follow him on Twitter: @rosswilkers. Also find and connect with him on LinkedIn.