Oracle takes JEDI back to court with appeal to rebid contract

The Department of Defense awarded its 10-year, $10-billion enterprise cloud computing contract to Microsoft on Oct. 25, but a lawsuit that alleged that the requirements were constructed with Amazon Web Services in mind is still proceeding.

Oracle filed an appeal in its long-running lawsuit against DOD alleging multiple violations of procurement law and practices in putting the Joint Enterprise Defense Infrastructure contract out for bid as a single-award, indefinite-delivery/indefinite-quantity acquisition. Additionally, Oracle claimed that key figures with business ties to AWS helped shape the requirements to favor the cloud computing giant and that the Court of Federal Claims was in error when it accepted the contracting officer's "flawed determination that the admitted misconduct did not corrupt the procurement."

According to Oracle's filing, "a remand to DoD to resolicit JEDI lawfully and restore the public trust in this high dollar acquisition is both required and needed."

Does the JEDI award to Microsoft, which goes unmentioned in the filing, mean that Oracle is out of court when it insists the procurement was in the tank for AWS?

Not necessarily, said one expert on procurement law.

"Strange as it may seem, there's no reason to think that DOD's award to Microsoft dramatically alters Oracle's litigation -- or, more accurately, appellate -- strategy or its likelihood of success," Steven Schooner, professor of government procurement law at George Washington University, told FCW via email. "It might be easier to think of it as a largely unrelated parallel track."

Schooner said he doesn't think that the Federal Circuit Court of Appeals will second-guess DOD's exclusion of Oracle on technical grounds, but the facts of the conflict of interest established in the DOD's own report and included in the Court of Federal Claims decision could be decisive on their own.

"I could easily see a panel of Federal Circuit judges being sufficiently troubled by the conflicts of interest -- that Judge [Eric] Bruggink detailed at length -- and concluding that DOD has to take a step back and more proactively address those concerns before it can proceed," he said.

In his decision, Bruggink wrote that the "facts on which Oracle rests its conflicts of interest allegations are certainly sufficient to raise eyebrows. The [Department of Defense contracting officer] concluded that at least two DOD officials disregarded their ethical obligations by negotiating for AWS employment while working on this procurement."

Oracle's hope, according to the filing, is that a new JEDI solicitation might not contain the same kind of restrictive requirements with regard to security clearance and authorization and other factors it says were driven by conflict of interest. Additionally, DOD might opt for a multi-cloud procurement rather than rebid a single-award IDIQ and risk further legal complications.

"No factual basis exists for the apparent speculation that DoD would approach a remand with obstinate rigidity," Oracle stated in its filing.

Other vendors have objected to the single-award procurement in JEDI, including IBM and the eventual winner, Microsoft. In responses to DOD's 2017 initial request for information, Microsoft said that "DOD's mission is better served through a multi-vendor cloud approach."