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Government attorneys argued that Oracle's allegations are moot, now that Microsoft won the Joint Enterprise Defense Infrastructure procurement.
Although Microsoft was awarded the Defense Department's $10 billion, 10-year cloud contract in October, losing bidder Oracle still has a lawsuit appealing the award, alleging that the Pentagon skewed the acquisition requirements to favor Amazon Web Services.
In a Dec. 23 court filing, Justice Department attorneys acting on behalf of DOD wrote in the appeal that the outcome of the Joint Enterprise Defense Infrastructure procurement should settle the matter.
"Microsoft winning the JEDI contract has mooted Oracle's allegations that AWS obtained an unfair competitive advantage in the competition by hiring former government employees," the government attorneys stated.
The government wants the Court of Appeals for the Federal Circuit to uphold the decision made by the trial judge rejecting Oracle's claim that it was unfairly prejudiced by actions of DOD contracting officials with ties to AWS.
Throughout the appeals process, Oracle’s goal has remained the same: Stop JEDI as it is currently constructed and restart it as a multiple-award contract. The company has claimed the gate criteria could only be passed by AWS and Microsoft and would not have been used in a multiple-award competition.
But DOD said it would not have to restart the contract even if Oracle were successful in stopping it on grounds that the single-award structure broke some procurement laws. DOD told the court it instead would more likely re-open the JEDI procurement, make it a single-award competition again under a “public interest exception” and still choose Microsoft. Further, Oracle would not have been eligible for the contract even if it were a multiple-award competition, which would have included gate criteria, DOD said.
AWS weighed in with its own brief, filed Dec. 26, focusing on the conflict-of-interest aspects of the case, arguing that Oracle lacks standing to bring its case, that an internal review at DOD determined there was no conflict of interest in the procurement, and that judgment was backed up by the trial judge when Oracle sued.
AWS is now pursuing its own bid protest case in the Court of Federal Claims, disputing the award of the JEDI contact to Microsoft, arguing that personal and public interference by President Donald Trump influenced the outcome of the procurement. According to a recent filing, the administrative record in that case tops 180,000 pages and totals almost 300 gigabytes of data.
No dates have been set for oral arguments at the appeals court regarding Oracle’s case or at the Court of Federal Claims for AWS’ lawsuit.
AWS has not asked for a preliminary injunction yet to pause work on JEDI but has said it is keeping that option open.