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By Nick Wakeman

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Nick Wakeman

Oracle opens JEDI appeal with familiar complaints

Oracle has made an initial filing to describe why it is appealing the U.S. Court of Federal Claims decision to deny its protest of the JEDI cloud computing infrastructure contract.

A formal brief has not yet been filed with the U.S. Court of Appeals for the Federal Circuit. But Oracle this week filed what is called a “docketing statement,” which is a questionnaire about the case.

The company says the Court of Federal Claims was wrong to rule that Oracle “did not suffer prejudice” when the Defense Department decided to go with a single-award for JEDI, a strategy that Oracle claims is illegal.

While the potential $10 billion apparently is close to being awarded to either Amazon Web Services or Microsoft, it has been held up by a review by Defense Secretary Mark Esper. His review was prompted by comments by President Trump that he was concerned the procurement favored AWS.

In its filing, Oracle said the “Court (of Federal Claims) also erred in its treatment of numerous, manifest conflicts of interest and in its determination that the competition Gate Criterion…is lawful.”

The gate criterion is really what sunk Oracle in court. The company acknowledged it couldn’t meet that criteria. The court ruled the criteria was reasonable so Oracle would be eliminated from the competition at that point, which means the other alleged flaws didn’t matter. Oracle was not hurt by them. So other problems with the solicitation didn’t really matter for Oracle because the company couldn’t get through the gate.

Oracle wants the Court of Appeals for the Federal Circuit to look again at the single-award strategy, the gate criterion and the conflict of interest allegations.

The Defense Department, through its Justice Department lawyers, has also filed a docketing statement. DOD restates the conclusions of the Court of Federal Claims -- Oracle couldn’t pass the gate criterion, which was “an enforceable solicitation requirement.” Because of that, "(Oracle) could not demonstrate prejudice as a result of other alleged errors in the procurement process,” DOD wrote.

AWS, which is a party in the case, has yet to file a docketing statement of its own.

In response to the docket statement question about whether the case could be settled through mediation, both Oracle and DOJ said "No."

DOJ wrote, “We intend to defend the trial court’s decision to deny Oracle injunctive relief. Accordingly, settlement is unlikely.”

Oracle wrote; “To date, DOD has not acknowledged and continues to defend the illegal single award approach, flawed gate criteria, and conflicts of interest that taint the involved procurement.”

But Oracle did say it was willing to participate in mediation.

DOJ answered that question with a simple "N/A".

Looks like there isn’t going to be any quick resolution to this one.

No hearing dates have been set with the court.

Posted by Nick Wakeman on Sep 27, 2019 at 1:38 PM

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