A filing from Oracle America Inc. submitted last Friday rebuts arguments made by the federal government concerning the challenged Joint Enterprise Defense Infrastructure (JEDI) Cloud solicitation, a $10 billion cloud-computing contract. The supplemental brief submitted to the nation’s high court says that nothing in the U.S. Department of Defense’s (DoD) brief filed earlier this month notifying the court of the contract’s cancellation, changes the worthiness of Oracle’s petition for review.
The filing is the latest in Oracle’s fight with the federal government over the contract, which the petitioner claims had unfair selection criteria and was tainted by DoD employees’ professional bias. The case was first heard administratively and eventually made its way to the Federal Circuit Court of Appeals, and most recently the United States Supreme Court.
In last week’s brief, Oracle argues that the DoD has fallen short of demonstrating that it has both ended the challenged conduct, and that it is completely clear the behavior at issue could not reasonably be expected to recur. “Cases do not become moot simply because a defendant issues a press release claiming to have ceased its misconduct,” Oracle asserts.
Oracle’s main mootness contention concerns the DoD’s proposed new solicitation, a similar cloud-computing contract. According to the petitioner, the DoD will “presumptively award the contract to Microsoft and respondent Amazon Web Services as the ‘only’ eligible competitors,” while excluding other candidates “based on infected research and requirements drawn directly from the challenged procurement.”
The DoD, Oracle claims, essentially concedes that the misconduct will continue, to Oracle’s disadvantage. As such, Oracle requests that, if nothing else, the Supreme Court “hold the petition until the Department of Defense establishes that the new procurement does not reproduce the legal defects of the old one.” If, on the other hand, the court sides with the government, Oracle requests that the court “vacate the decision below and remand in accordance with its ordinary practice.”
Oracle is represented by Arnold & Porter Kaye Scholer LLP.