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The government and Amazon Web Services both laid out detailed arguments this week for why a federal court should reject a bid protest by Oracle America against the Defense Department’s multibillion dollar JEDI cloud contract.

The filings represent one of the last opportunities to defend the cloud procurement before the Court of Federal Claims issues an expected ruling in mid-July. In them, Justice Department and AWS attorneys argue that Oracle’s multifaceted challenge is without merit, and that DoD should be able to proceed with its planned award to either AWS or Microsoft in July.

Many of the arguments attempt to dismantle Oracle’s claims that the JEDI contract was fatally flawed because of conflicts of interest by three separate DoD employees with connections to Amazon. Oracle has argued that at least two of those employees — Deap Ubhi and Victor Gavin — had job offers from AWS in hand at the time they were involved in or influencing the planning process for JEDI.

But government and AWS attorneys said those concerns already had been investigated and addressed by the JEDI contracting officer, Chandra Brooks.

In Ubhi’s case, the filings acknowledge that Ubhi committed ethics violations by talking to AWS about future employment while he was still working for the Defense Digital Service and involved in JEDI, and that he tried to “conceal” those violations.

“Based upon a thorough investigation, however, the contracting officer also determined Mr. Ubhi did not introduce bias in favor of AWS during the procurement, and, even if he did, Mr. Ubhi’s bias has no impact on the procurement,” DOJ attorneys wrote.

AWS also spent considerable time in its filing pushing back against Oracle’s claims of Ubhi, Gavin —whose name continues to be redacted in the filings — and Anthony DeMartino’s role in the procurement.

“DoD thoroughly investigated the limited involvement of former government officials Deap Ubhi, [Victor Gavin] and Anthony DeMartino in the procurement, and rationally determined that they could not have negatively impacted JEDI and did not negatively impact JEDI. Oracle disagrees with those determinations, but it does so by ignoring controlling legal precedent and misreading the factual record,” AWS states. “Regarding Mr. Ubhi, for example, Oracle continues to grossly exaggerate his role, incorrectly referring to him as the JEDI ‘lead PM’ and ‘one of four DDS personnel leading JEDI.’ In reality, Mr. Ubhi’s role was limited to preliminary market research.”

AWS says Ubhi recused himself from JEDI in October 2017, which was:

• Before the Joint Requirements Oversight Council identified the initial requirements in December 2017;
• Before DoD published draft solicitations in March, April and May of 2018;
• Before DoD submitted the RFP package for a detailed peer review in April 2018;
• Before DoD finalized the acquisition strategy and Solicitation in July 2018; and
• Before the contracting officer, under secretary, and Defense Digital Service Deputy Director approved the single-award and gate criteria determinations in July 2018.

“Mr. Ubhi was not even working at DoD during these critical time periods. Thus, Oracle’s assertion that Mr. Ubhi somehow influenced each decision is not only illogical but a nakedly self-serving attempt to impugn the integrity of the entire Department of Defense,” AWS states.

Violations may have occurred

The government acknowledged that Ubhi had been a strong advocate for the single-award strategy DoD eventually settled on, but that he had left the department long before a final decision was made on the issue. And the filings assert that even though he may have had access to internal information on the department’s acquisition strategy, he never shared that information with AWS.

Likewise, the filings acknowledge that a second official, Gavin, may have violated the Procurement Integrity Act by attending at least one JEDI acquisition strategy meeting after he’d been offered a job by AWS. But they say Brooks was well within her discretion to decide that the potential violation still didn’t influence the procurement, partly because she was satisfied that he never gave any sensitive procurement information to Amazon.

At the meeting, which Brooks also attended,  Gavin “did not show any bias toward any particular vendor,” lawyers wrote. “[He] argued unsuccessfully for a multiple-award approach, but did not provide any suggested edits to the draft acquisition strategy. The contracting officer concluded that he should not have participated in this meeting, as he had just accepted a job offer from AWS. Nevertheless, in light of her personal knowledge of the meeting, she reasonably determined that conflict has no impact on the JEDI acquisition decisions and documents.”

Oracle has also argued the Pentagon’s decision to structure JEDI as a single-award contract was illegal, since federal procurement laws generally require agencies to make indefinite-delivery/indefinite quantity awards to multiple vendors “to the maximum extent practicable.”

But there, too, the new filings say the court should defer to the contracting officer’s judgement, particularly for a procurement that impacts national defense. They argue that not only was DoD allowed to issue JEDI as a single-award contract, but that under the circumstances, it was required to.

“The same statute that requires regulations establishing a ‘preference’ for multiple awards also requires regulations that ‘establish criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the federal government,’” attorneys wrote.

They added that Brooks identified at least three reasons a multiple-award ID/IQ wouldn’t be appropriate: DoD would get better pricing with a single award, the cost of administering multiple awards would outweigh the benefits, and a general conclusion that multiple awards would not be in DoD’s best interest. The part of the Federal Acquisition Regulation she relied on required her to look at those criteria and avoid a single-award contract if any of them came into play, they said.

“Determining whether these three situations apply requires the contracting officer to exercise her business judgment and discretion. So long as the contracting officer rationally determined that one of these situations exists, it cannot be considered ‘practicable’ to use a multiple-award approach for the JEDI procurement.”

Oracle is ‘not in the same class’

In April, DoD narrowed the field of potential competitors for JEDI — eliminating Oracle and IBM from the “competitive range” — keeping only AWS and Microsoft in the competition. It did so on the basis of “gate criteria” the department laid out in its initial request for proposals.

One such “gate” specified the amount of storage and bandwidth each cloud competitor needed to be providing to commercial customers as of January and February 2018, so the department could be sure that JEDI would not make up more than half of the winner’s cloud business. Another required vendors to have their data centers certified by the government’s FedRAMP program even before bids were due.

Oracle claims the gates were illegal and irrational. For instance, it says that if the size of its commercial customer base was measured just one month later — March rather than February — it would have cleared the first gate.

The first gate outlined DoD’s minimum requirements for cloud services focused on hosting applications and data critical to its mission.

But the government claims Oracle’s service offerings were clearly not up to DoD’s requirements, and there was no reason to consider the rest of its proposal after it failed to clear the gates.

“Oracle’s odds of being awarded the JEDI contract are slim, even if the gate criteria it challenges were removed. Contrary to the suggestion in its supplemental brief, Oracle is not in the same class as Microsoft and AWS when it comes to providing commercial IaaS and PaaS cloud services on a broad scale.”

AWS also spent considerable time in its filing addressing the gate criteria and why Oracle’s arguments against DoD’s decisions don’t hold water.

AWS states, DoD’s “analyses were thorough and well-reasoned, and Oracle’s arguments to the contrary present nothing more than mere disagreement founded on repeated misstatements of fact and law and a fundamental refusal to engage with DoD’s documented findings on national security and mission-critical requirements.”

Amazon Web Services also asks the judge several times in its filing to rule against Oracle because the company isn’t qualified based on failing the first gate criteria.

“Oracle ignores its heavy burden and the necessary predicates for its various allegations. But, when properly understood, Oracle’s arguments are nothing more than a house of cards ready to topple,” AWS states. “The first — indeed, the only issue this court must decide is whether Oracle meets DoD’s minimum needs, as expressed in Gate Criteria I. I. If Oracle does not, then it cannot be prejudiced by, and lacks standing to raise, any of its remaining challenges.”

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