Oracle Takes Last Stab at Convincing High Court to Grant Cert. in $10B DOD Contract Case

On Tuesday, petitioner Oracle America Inc. reiterated its request that the high court review a Department of Defense (DOD) cloud contract’s purportedly illegal bidding structure and compromised integrity. Oracle contends that respondent Amazon Web Service Inc.’s (AWS) filing only underscores the importance of granting certiorari and protecting separation-of-powers principals.

The case stems from Oracle’s challenge to the DOD’s $10 billion cloud computing solicitation known as JEDI. Oracle was eliminated from the running because it failed to meet threshold requirements. In its legal challenge, Oracle contested the contract’s one-bidder structure and DOD employee conflicts of interest it felt tainted the process.

Earlier this month, AWS contended that the high court should not review the Federal Circuit Court of Appeals decision rendered in its and the DOD’s favor because the case presents questions that are non-outcome determinative and fact-intensive. In its final rebuttal, Oracle raised three points.

The brief first reiterated that Oracle’s petition does not ask the Supreme Court to render any fact-bound decisions, rather it focuses on two legal errors purportedly made by the Federal Circuit. These, Oracle said, relate to how the appellate court addressed its conflict arguments, ultimately resulting in the application of an additional test and deference to the DOD’s own findings.  

Oracle also disputed its competitor’s contention that the conflicts question will not sway the final outcome of the case. “[T]hat is plainly wrong,” Oracle said, countering that the justices’ interpretation of a 1961 Supreme Court case could require reversal, should they find that it prohibits enforcement of a conflicted contract.

Finally, the brief points out that “Amazon’s role in these conflicts of interest further underscores the importance of this Court’s review.” AWS, Oracle argues, dances around the fact that it was the entity improperly connected to the three DOD employees at issue, not some other bidder. “It is time for this Court … to enforce the statutory conflict-of-interest prohibition as Congress wrote it, and to reaffirm the judiciary’s critical role in protecting accountability and integrity in government contracting” Oracle concluded.

The petitioner is represented by Arnold & Porter Kaye Scholer LLP, respondent AWS by Crowell & Moring LLP and Gibson Dunn & Crutcher LLP, and respondent the Department of Defense by the U.S. Department of Justice.