Oracle is not relenting in its attempt to head off the Defense Department’s massive and controversial JEDI Cloud procurement.
On Thursday, the tech firm filed a bid protest lawsuit with the U.S. Court of Federal Claims, an escalation of its earlier protest to the Government Accountability Office.
The exact basis of the new complaint is still unknown, because Oracle filed the complaint under seal. In filings, the firm told the court that its documents contained sensitive propriety information, but also supplied a proposed redacted version. That document has not yet been made public either, although attorneys for Oracle and DoD conferred with the judge by telephone on the matter in a closed session on Friday morning.
On Nov. 14, GAO rejected almost all of the claims Oracle made when it asserted that the up to $10 billion cloud computing procurement was set up as an unfair competition. GAO decided the Pentagon was within its rights to issue the solicitation as a single-award contract. And it generally deferred to the department’s claims that national security concerns justified its acquisition approach.
GAO left open the possibility that DoD and Amazon Web Services, another bidder, had a conflict of interest. But the office said that issue was not ripe for a decision, since no award has been made yet.
Oracle representatives did not immediately respond to a request for comment about the new protest.
Thursday’s lawsuit was only the latest legal challenge to the JEDI contract. IBM filed its own pre-award protest with GAO in October; a decision on that case is not due until Jan. 18.
And it was not immediately clear Friday how the new Oracle lawsuit would impact the IBM case. GAO often dismisses protests when at least one party to the same procurement has filed a court challenge, but the IBM matter was still listed as “Open” on GAO’s electronic docket on Friday morning.
A GAO official said the office was likely to dismiss the IBM case in the next several days and allow the court to settle all legal disputes surrounding JEDI, but that it first needed to examine Oracle’s lawsuit in order to be sure IBM did not raise any separate legal issues the court might not address.
IBM declined to comment on the new court case.
Although the Court of Federal Claims does sometimes decide cases in ways that differ from earlier GAO decisions, there is no reason to assume Oracle will stand a better chance before the court than it did at the GAO level, said Joe Petrillo, a government procurement attorney with the firm Petrillo and Powell.
“It’s a look at the issue by another party who might have a different perspective on it, but on these issues, there isn’t a major difference in the legal standard that’s going to be applied,” he said. “And there probably isn’t a difference in the records that are going to get reviewed to determine whether or not the protest against the solicitation has merit. I don’t think the court will necessarily be any less deferential on national security issues.”
However, the suit was a logical next step for Oracle, and one of its few remaining options if the primary goal is to persuade DoD to change JEDI into a multiple-award contract. Bidders are generally not allowed to challenge the terms of a solicitation after an award is made.
“If there’s an issue that’s in the solicitation, you have to protest it before offers are submitted,” Petrillo said. “If you go ahead and compete in the procurement [and lose], you can’t come back and say, ‘Hey, the solicitation was screwed up.’ The courts want these issues resolved on the front end so that people don’t meaninglessly go through a competition that was flawed from the outset.”