When Judge Eric Bruggink handed down his decision on Oracle’s protest of the Defense Department’s JEDI cloud contract on July 12, many government contracts lawyers were more than mildly surprised. And when the US Court of Federal Claims released the judge’s mostly unredacted decision 14 days later, the rationale behind the ruling in favor of the Defense Department strategy and against Oracle’s claims of conflicts of interest and arbitrary decisions didn’t quite put the case to rest. With the JEDI drama far from over, Federal News Network asked Antonio Franco, a senior partner in PilieroMazza’s Government Contracts Group, to weigh in on Bruggink’s decision.
What are your overall thoughts on the judge’s decision?
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Franco: Overall, the Court of Federal Claim’s decision does not come as a complete surprise. The judge reasonably recognized that DoD’s justification for a single award was improper; however, Oracle’s concession that it could not satisfy minimum gate criteria 1.2, in order to be considered a viable competitor, put it at a severe disadvantage in demonstrating prejudicial error, a concession that the court could not overlook. To be successful in this protest, Oracle had to satisfy two legal standards. First, the court is to determine whether the procurement official’s decision lacked a rational basis or the procurement procedure involved a violation of a regulation or procedure. Second, if the answer is yes, then the court must determine whether or not the protester was prejudiced by said error. Because Oracle conceded on the record that it could not meet Federal Risk Authorization Management Program (FedRAMP) authorization (representing the DoD’s minimum security requirements for processing or storing DoD information) even with the court’s recognized procurement error, Oracle was not prejudiced by such error. As such, no further analysis from the court was really required, which is why this reasoning took center stage in the court’s initial two-page ruling.
If the gate criteria was not a factor in the procurement, would DoD’s failure to comply with statute requiring multiple awards be enough to have sustained the protest?
Franco: If the gate criteria were not a factor in the procurement, it is possible the court’s decision could have come down differently. Since the court found the D&F relied on an exception to 10 U.S.C. § 2304(a)(d)(3) that did not accurately reflect the structure of the JEDI cloud solicitation, the court could have also found that Oracle was prejudiced by such error. Under this scenario, Oracle’s concession to gate criteria 1.2 would be non-existent and Oracle would stand a better chance of being awarded the contract under a multiple-award scheme.
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What message does the judge’s decision on the gate criteria send about the ability to narrow protest rights using the gate approach?
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Franco: The judge found the various gate criteria imposed by DoD to be enforceable, even though it was applied as part of the first step of the evaluation process. If an agency can plausibly demonstrate that its gate criteria is being used to ensure its evaluation was not wasted on offerers who could not meet the agency’s minimum needs, more agencies could begin to use such gate criteria in the first evaluation phase of future procurements.
Does Oracle have any next move? If so, what is it?
Franco: Oracle may have a leg to stand on as a result of the Court’s determination that the D&F relied on an exception that did not accurately reflect the structure of the JEDI cloud solicitation. Although the Court ultimately found Oracle could not demonstrate prejudice as a result of the flawed D&F, such a decision recognizing an inconsistency in the solicitation could form the basis for Oracle to appeal to the Court of Appeals for the Federal Circuit.
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Excerpt taken from the article “DoD’s Win in Federal Court Doesn’t Mean JEDI is Out of the Woods, Experts Say” by Jason Miller for Federal News Network. To view the full article, please visit this link.