On Wednesday, the United States, through Acting Solicitor General Brian H. Fletcher, filed a supplemental brief in the dispute between Oracle America Inc. and the Department of Defense (DoD) over a $10 billion cloud computing contract. In the filing, the government argues that the DoD’s cancellation of the Joint Enterprise Defense Infrastructure (JEDI) Cloud solicitation in July has rendered the case moot.
Previously, Oracle challenged the contract’s single-vendor structure and accused DoD employees of bias that tainted the bidding process. The case started as an administrative matter within the DoD, then was unsuccessfully appealed several times in a bid to “unwind the solicitation and the award of the single-source contract to Microsoft,” as described by this week’s brief.
The United States explained that it cancelled the JEDI Cloud solicitation on July 6, and subsequently announced a new multiple-award procurement called Joint Warfighting Cloud Capability (JWCC), to be conducted anew in the coming months. The respondent argued that in view of the cancellation, Oracle “has effectively received all the relief it could have obtained in its bid protest (and more).”
Injuries the petitioner allegedly suffered in the solicitation process are no longer redressable, the filing contended. The most Oracle would have been entitled to had it won the case, “would have been the termination of the contract with Microsoft and a remand to the agency to conduct anew the JEDI Cloud procurement.” As such, the federal government asserted, the judiciary can provide it with no additional relief.
The brief further argues that this not an appropriate case in which to grant the petition and vacate the current decision on the basis that Oracle’s grievances warranted further review even before the JEDI Cloud solicitation was cancelled. Vacatur under a 1950 Supreme Court case “is appropriate only if, among other things, the petition for a writ of certiorari would have merited this Court’ s plenary review had it not become moot,” the brief explained.
In addition, the United States asserted that any issue Oracle may have with the JWCC should be the subject of a separate proceeding. The petition was distributed to the justices in June and is scheduled to be discussed at a conference on September 27.
Oracle is represented by Arnold & Porter Kaye Scholer LLP.
