[00:00:00] Speaker 05:
Thank you.

[00:00:01] Speaker 05:
The next argued case is number 192326, Oracle America Incorporated against the United States.

[00:00:09] Speaker 05:
Mr. Holman, proceed.

[00:00:14] Speaker 02:
Good morning.

[00:00:16] Speaker 02:
May it please the court, Craig Holman for Oracle America, Inc.

[00:00:21] Speaker 02:
The United States Court of Federal Plains correctly found that DOD's 10-year, $10 billion single award

[00:00:30] Speaker 02:
Jedi cloud procurement with near constant technology refresh provisions violates 10 USC 2304A's prohibition on large single award indefinite delivery indefinite quantity contracts.

[00:00:51] Speaker 05:
You're not saying it's an absolute prohibition, or are you, but rather that it's something to be given significant weight?

[00:01:02] Speaker 02:
Your Honor, we believe it is indeed a prohibition with four exceptions to it.

[00:01:07] Speaker 02:
And DOD invoked one of those exceptions incorrectly, as the lower court found.

[00:01:14] Speaker 02:
Our contention here on appeal is that the lower court

[00:01:19] Speaker 02:
indeed then went forward and aired breaking with extensive Supreme Court and Federal Circuit precedent when assessing the harmless error or competitive prejudice as it is known in bid protests.

[00:01:32] Speaker 02:
So I'll touch on this in greater detail as you like or I'm happy to now, Your Honor.

[00:01:38] Speaker 02:
But this is just from our perspective.

[00:01:40] Speaker 07:
Council, if we agree with you that the explanation or the exception relied upon

[00:01:49] Speaker 07:
was incorrect.

[00:01:53] Speaker 07:
Could DOD just go back and rely on a different exception?

[00:01:59] Speaker 02:
Well, I mean, the exception would have to fit, Your Honor, and we don't know whether DOD indeed would even try to do that.

[00:02:07] Speaker 02:
You know, we've had Congress, two different Congresses speak out against a single award structure.

[00:02:13] Speaker 02:
There's no reason to believe that this was remanded because

[00:02:16] Speaker 02:
the exception selected doesn't fit, that DOD would just try to do it again.

[00:02:23] Speaker 04:
And indeed, Why wouldn't that be a determination that DOD would be in the best position to make?

[00:02:31] Speaker 02:
I think it would have to be, Your Honor.

[00:02:32] Speaker 02:
I don't think we're not asking.

[00:02:35] Speaker 04:
What I mean is that you're suggesting that it's unlikely that DOD would select one of the other exceptions.

[00:02:46] Speaker 04:
Your argument is that we can't make a determination of harmless error under Tannery, but if DOD, if we were to remand to DOD for the undersecretary to make a determination as to whether absent the exception that was invoked, she would have invoked one of the other exceptions.

[00:03:05] Speaker 04:
Isn't that a determination that DOD would be free to make?

[00:03:10] Speaker 02:
I do believe DOD could make that determination under secretary for solicitation.

[00:03:16] Speaker 04:
I would think it would just be, had we known that we couldn't invoke the exception that we invoked, we would have invoked another exception.

[00:03:26] Speaker 04:
And then your argument would simply be limited, it would seem to me, to saying that the invocation of the other exception was invalid.

[00:03:37] Speaker 02:
I think that's correct, Your Honor.

[00:03:39] Speaker 02:
I mean, the very teaching of SEC v. Chenery is that neither this court nor the lower court could take that discretion away from DOD.

[00:03:48] Speaker 02:
So how the Department of Defense would exercise that discretion on remand, I'm not arguing for this court to take that discretion from DOD.

[00:03:58] Speaker 02:
I am telling this court that DOD didn't choose any of the other exceptions.

[00:04:02] Speaker 02:
This was in front of DOD, and they didn't believe

[00:04:04] Speaker 02:
that any of the other shoes fit the circumstance, and any of the other exceptions worked here.

[00:04:11] Speaker 02:
So there is no basis for anybody to assert what DOD might or might not do on remand.

[00:04:18] Speaker 02:
My belief is that certainly it could go back down, and certainly if they were to exercise discretion under another one of the exceptions, the case could come back.

[00:04:32] Speaker 02:
You know, none of that is an appropriate role for a court in this environment.

[00:04:39] Speaker 02:
And that's what SEC versus Channery tells us.

[00:04:42] Speaker 02:
And indeed, that's the very error that, a little bit different, that the judge made below on prejudice, right?

[00:04:48] Speaker 02:
It's the judge that would.

[00:04:50] Speaker 04:
You have a second harmless error problem to get over, don't you?

[00:04:54] Speaker 04:
And that is the trial court's conclusion that even if there had been

[00:05:02] Speaker 04:
a multi-source selection that gate 1.2 still would have been in place and you would not have been able to succeed in getting the procurement.

[00:05:19] Speaker 04:
And the judge found that that was based on evidence, substantial evidence in the record that that

[00:05:27] Speaker 04:
is exactly what would have happened.

[00:05:30] Speaker 04:
And so isn't that a separate harmless error argument from the 2304A harmless error argument?

[00:05:38] Speaker 02:
Yes.

[00:05:38] Speaker 02:
Well, first of all, I mean, I don't think 2304A exceptions can be characterized as harmless error because we don't know what DOD would do on remand.

[00:05:47] Speaker 02:
And there's no evidence that DOD would take one of these other exceptions.

[00:05:52] Speaker 02:
But as to the prejudice question,

[00:05:54] Speaker 02:
Your Honor, I think it suffers from the exact same SEC versus Chenery flaw that you just mentioned.

[00:06:01] Speaker 02:
So if we're sitting here talking about what DOD would do on remand, so if this goes back, Congress put this prohibition in place precisely to stop IT contracts with technology refresh provisions like this one.

[00:06:14] Speaker 02:
If this thing goes back to DOD,

[00:06:18] Speaker 02:
The question that Judge Brugink and Mr. Rayl were discussing that Judge Brugink colorfully called Rayl on the facts and Mr. Rayl acknowledged was not in the record is how would DOD structure this on remand?

[00:06:33] Speaker 02:
How would DOD structure this procurement if it were complying with 10 USC 2304A?

[00:06:39] Speaker 02:
And as soon as the lower court started engaging

[00:06:45] Speaker 02:
in that type of decision making, it was breaking with SEC versus Channeling.

[00:06:51] Speaker 02:
There is nothing in the record about how DOD would structure a multiple award procurement.

[00:06:57] Speaker 02:
That's a decision that DOD would make on remand under SEC versus Channeling.

[00:07:05] Speaker 02:
And it is also worth noting that we have four different reasons why that prejudice finding is wrong, Your Honor.

[00:07:10] Speaker 04:
Well, let me ask you then about that.

[00:07:14] Speaker 04:
You say there's nothing in the record that indicates what the department would have done in a multi-source selection, but if you look at appendix 100462, that is the memorandum for the contracting officer's file and that's the contracting officer and,

[00:07:41] Speaker 04:
Mr. Van Naim, the signatories.

[00:07:46] Speaker 04:
And the finding is made is that I find that multiple awards increase security risks.

[00:07:52] Speaker 04:
So the trial courts found based on that that there would be essentially no likelihood that the security provision in gate 1.2 would be relaxed if there were multiple sources.

[00:08:11] Speaker 04:
What's wrong with that conclusion?

[00:08:14] Speaker 02:
There's two flaws with that conclusion.

[00:08:18] Speaker 02:
One, that is not the basis on which the Department of Justice asserted that the security issue would remain the same.

[00:08:32] Speaker 02:
Indeed, it's a completely different document than was pointed to by the Department of Justice with respect to that.

[00:08:40] Speaker 02:
But second of all, that is a finding that was made in the rationale in connection with a single award decision.

[00:08:48] Speaker 02:
It is not a description of what would be the right approach with a multiple award.

[00:08:54] Speaker 02:
And indeed, there is nothing in the record that would do that.

[00:09:00] Speaker 02:
What we have shown, what we showed below in the lower court, was that DOD has entirely different guidelines for how to structure

[00:09:09] Speaker 02:
a multiple award than it does for a single award.

[00:09:12] Speaker 02:
And what the record does show, Your Honor, is there are multiple other procurements that DOD hand-selected, hand-selected for their, uh, to pattern this procurement after, and none of them, none of them are structured this way.

[00:09:27] Speaker 02:
So there is no reason.

[00:09:28] Speaker 07:
Counsel?

[00:09:28] Speaker 07:
Counsel?

[00:09:29] Speaker 02:
Yes.

[00:09:29] Speaker 07:
Counsel, this is Judge O'Malley.

[00:09:31] Speaker 07:
Um, so, as I understand it then, you

[00:09:34] Speaker 07:
don't need us to conclude that Gate 1.2 is unenforceable as written because you believe that there's no way for us to know for sure that Gate 1.2 would be re-employed with the same language in a multiple source contract.

[00:09:59] Speaker 07:
Is that right?

[00:10:00] Speaker 02:
I believe that's absolutely correct, Your Honor, and I also assert that the judge, when the judge talked, when Judge Brueggenck talked about 1.2 and when he applied the question about 1.2, he did it at the wrong point in time.

[00:10:14] Speaker 02:
This court has repeatedly spoken to the issue of pre-award protest and prejudice and what you need, the question you need to ask.

[00:10:23] Speaker 02:
And the question Judge Brueggenck should have asked was could, even if he thought 1.2 remained, was could

[00:10:30] Speaker 02:
based on the record in front of me, or in Oracle Meet 1.2 on remand, right?

[00:10:37] Speaker 02:
This is exactly addressed precisely by the Federal Circuit in common.

[00:10:43] Speaker 07:
It's addressed in... But what's your response to the argument that there's a difference between pre-bid protests

[00:10:55] Speaker 07:
and protests that are made after a bid has been submitted so you know who the players are, you know what their qualifications are, and you know whether they can satisfy the gates.

[00:11:09] Speaker 02:
I think that's a false argument in this context by the Department of Justice.

[00:11:13] Speaker 02:
First of all, because the question is on this particular issue, it's on remand, could Oracle meet Gate 1-2?

[00:11:21] Speaker 02:
In neither the Department of Justice nor the Court of Federal Claims ever addressed that.

[00:11:27] Speaker 02:
What the evidence was presented was that Oracle couldn't meet it in September 2018.

[00:11:33] Speaker 02:
What Oracle said in its proposal to the government was that it was on the cusp of meeting it, and indeed today it far exceeds that standard.

[00:11:43] Speaker 02:
The question that the Court should have been asking is,

[00:11:46] Speaker 02:
on remand, if gate 12 is left in this procurement, could Oracle meet it?

[00:11:52] Speaker 02:
And the court never asked that question.

[00:11:54] Speaker 02:
What it looked at is, could it meet it in September 2018, which was itself an error under comment in Impreza.

[00:12:01] Speaker 07:
Can I ask you a question?

[00:12:03] Speaker 07:
Sure.

[00:12:03] Speaker 07:
Counsel, before you sit down, I have one more question.

[00:12:05] Speaker 07:
I'm sorry.

[00:12:06] Speaker 07:
Is that okay, Judge Newman?

[00:12:07] Speaker 05:
Of course.

[00:12:08] Speaker 05:
And I have a question, too, about gate 12.

[00:12:11] Speaker 07:
Okay.

[00:12:12] Speaker 07:
So let's proceed.

[00:12:13] Speaker 07:
Is it your theory under a proper application of tennery that we wouldn't even be permitted to address your argument that 1.2 is unenforceable unless we get two or three steps farther down the road?

[00:12:33] Speaker 02:
I think, no, Judge, because we have a separate account attacking 1-2.

[00:12:38] Speaker 02:
I don't have to win on 1-2 to win on 23-04A is what I was trying to say.

[00:12:43] Speaker 02:
But we do have a separate account that 1.2 in itself is a violation of the Competition and Contracting Act because by that gating factor, DOD, which is part of FedRAMP, remember, this is a FedRAMP, FedRAMP is a Department of Defense U.S.

[00:13:00] Speaker 02:
government tool.

[00:13:01] Speaker 02:
By setting these gates,

[00:13:03] Speaker 02:
DOD precisely knew who could meet them, and that it was AWS and Microsoft.

[00:13:08] Speaker 02:
It was this solicitation was no different than DOD putting out a solicit.

[00:13:13] Speaker 02:
When it put that gate one two in, it was no different than DOD saying to the world, only AWS and Microsoft may bid, because it was their gate, their system, they knew who met it, and they knew only those two companies did.

[00:13:26] Speaker 02:
That's why this competition went from 60 plus interested participants

[00:13:32] Speaker 02:
down to only four, four of the largest cloud computing companies in the world bidding, and two of them, Oracle and IBM, were out on these gates.

[00:13:42] Speaker 02:
DoD knew from the get-go that only AWS and Microsoft could clear these gates, and they never complied with Competition and Contracting Act's rules for restricting competition.

[00:13:54] Speaker 02:
And so, Your Honor, we do think these are separate issues.

[00:13:58] Speaker 02:
We think Gate 1-2 clearly falls on its own.

[00:14:01] Speaker 02:
But even if gate 12 doesn't fall, we still win on 2304A because the lower court never should have been asking the question, how would DOD restructure this procurement on remand?

[00:14:14] Speaker 02:
That's the exact thing SEC versus Chenery and countless other courts say they can't do.

[00:14:19] Speaker 02:
That's not a harmless error finding.

[00:14:22] Speaker 02:
That's the lower court intruding onto DOD's discretion.

[00:14:25] Speaker 02:
It's doing exactly what the Supreme Court said in SEC versus Chenery could not happen.

[00:14:32] Speaker 05:
Okay, now that was the point that I wanted to raise, that really the court must consider the points that you've been making about Gate 1-2 and the fact that it was established in the original procurement.

[00:14:47] Speaker 05:
But without that, you really can't prevail, isn't that right?

[00:14:53] Speaker 02:
If Gate 1.2 falls, we win, Your Honor, clearly because it needs to go back and be restructured

[00:15:01] Speaker 02:
If you were to rule against us on gate 1.2, the court would still have to consider 2304A because we can pass gate 1.2 today.

[00:15:10] Speaker 02:
And that's what we were telling the lower court.

[00:15:13] Speaker 02:
That's what we've been saying all along.

[00:15:16] Speaker 02:
They set this gate at a particular point in time, Your Honor.

[00:15:24] Speaker 02:
They set this gate September 2018 when Oracle was on the cusp

[00:15:30] Speaker 02:
of getting FedRAMP high, an even higher standard.

[00:15:34] Speaker 02:
And they said that you had to meet it at the time of bid submission.

[00:15:38] Speaker 02:
So if this case went back on, even if gate 1.2 were in a multiple award solicitation today, Oracle would pass it easily, easily.

[00:15:49] Speaker 02:
So if it went back down on remand, and this is what the judge was doing, one of the things that the judge was doing wrong on prejudice.

[00:15:55] Speaker 02:
There were a bunch of things, unfortunately, that were done wrong on prejudice because

[00:15:59] Speaker 02:
The Department of Justice invited the judge to engage in this speculation, but one of the other things was he was applying the prejudice test at the wrong time.

[00:16:10] Speaker 02:
It's quite clear in Comet and Impreza that the question is, could Oracle meet this on remand, not did Oracle meet it in the original flawed procurement?

[00:16:20] Speaker 02:
That's what the judge was talking about, that we couldn't meet it under the original flawed procurement, and the evidence was ample.

[00:16:26] Speaker 02:
there was no conflicting evidence that Oracle could meet it if it got remanded.

[00:16:31] Speaker 05:
Okay.

[00:16:32] Speaker 05:
Thank you.

[00:16:33] Speaker 05:
Any more questions at the moment from the show?

[00:16:38] Speaker 05:
Okay.

[00:16:38] Speaker 05:
Then we're here for Mr. Rayl.

[00:16:41] Speaker 01:
Thank you, Judge.

[00:16:43] Speaker 01:
Thank you, Your Honor.

[00:16:44] Speaker 01:
May I please record?

[00:16:46] Speaker 01:
It's undisputed that the Jedi Cloud acquisition is an important high-value procurement with significant implications for our national defense.

[00:16:52] Speaker 01:
For this reason, the Joint Requirements Oversight Council

[00:16:55] Speaker 01:
led by the Vice Chairman of the Joint Chiefs of Staff, issued war fighting requirements for the procurement in December 2017, and the solicitation implementing those requirements has been thoroughly reviewed by numerous stakeholders within DOD to ensure that it accurately reflects the government's requirements.

[00:17:12] Speaker 01:
Oracle admits that it failed to meet multiple minimum requirements set forth in the solicitation, including one related to data security, which is contained in sub-factor 1.2.

[00:17:21] Speaker 01:
The trial court correctly determined that Oracle has not demonstrated anything irrational or illegal about sub-factor 1.2, so the trial court correctly found that Oracle was not prejudiced by any of its other alleged errors.

[00:17:33] Speaker 01:
Now, since prejudice was the main topic of discussion in Mr. Holman's argument, I'll go there.

[00:17:43] Speaker 01:
Because the trial court correctly determined that the Fed grant moderate authorization requirement is enforceable, and Oracle admits that it didn't meet this requirement,

[00:17:51] Speaker 07:
trial court correctly found that Oracle was not prejudiced by any other alleged errors, including... So your point is that if we don't agree that the mere fact that it... If we don't agree with counsel that he is entitled to a remand regardless of the gates because the gates might be considered

[00:18:19] Speaker 07:
or reconsidered by DOD.

[00:18:21] Speaker 07:
If we don't agree with that, then your view is we need to remand to the trial court if we find 1.2 unenforceable.

[00:18:28] Speaker 07:
Is that right?

[00:18:29] Speaker 01:
If the court were to find 1.2 unenforceable, yes, the court would need to remand to the trial court.

[00:18:41] Speaker 01:
But the court, obviously our position throughout our briefs is that 1.2 is in fact enforceable.

[00:18:48] Speaker 01:
There's a rational basis for these terms that there was, there's no violation of CICA here.

[00:18:55] Speaker 01:
This was full and open competition.

[00:18:57] Speaker 01:
Everyone was, everyone was permitted to submit proposals.

[00:19:01] Speaker 01:
It's not correct to say that the agency knew that only Amazon and Microsoft could compete because there was the opportunity for teaming arrangements in the solicitation.

[00:19:11] Speaker 01:
But nevertheless, that's not, that's not the way.

[00:19:14] Speaker 05:
You're not saying, you're not asking us to assume

[00:19:18] Speaker 05:
that they didn't know and, in fact, wouldn't it be quite extraordinary if, in fact, with something as significant that in setting the standard, there wasn't some sense as to how the public contributors can comply with that standard.

[00:19:37] Speaker 05:
It seems to be extraordinarily rigorous for so large a solicitation.

[00:19:42] Speaker 01:
Sure, Your Honor, that's fair.

[00:19:44] Speaker 01:
My only point there was that it's possible there could have been teaming combinations and the agency didn't know what that was.

[00:19:51] Speaker 01:
But nevertheless, our main point is that it doesn't matter whether the agency knew that Amazon and Microsoft were the only ones that could meet this requirement because they provided for a solicitation with full and open competition.

[00:20:05] Speaker 01:
The question here is cases like

[00:20:09] Speaker 01:
like CHE Consulting's advantage demonstrate is that the question is whether the terms that are in the solicitation, this gate 1.2 in particular that we're talking about now, was unduly restrictive of competition because it lacked a rational basis.

[00:20:24] Speaker 01:
You know, CHE Consulting is a great example there where the plaintiff alleged that an agency's decision to include both hardware and software maintenance requirements in a solicitation violated CECA's full and open competition requirement because only one company in its licensees

[00:20:39] Speaker 01:
supported the software for the system at issue.

[00:20:42] Speaker 07:
But the question isn't just whether it was unduly restrictive, but the question is, is it a specification requirement or a qualification requirement, right?

[00:20:52] Speaker 01:
That is a separate issue, Your Honor.

[00:20:55] Speaker 01:
That's correct.

[00:20:55] Speaker 01:
And there's two points on the qualification requirement issue.

[00:21:01] Speaker 01:
One, Oracle waived this objection by not raising it prior to the close of bidding.

[00:21:06] Speaker 01:
And second, sub-factor 1.2 is a Jedi-specific evaluation criterion.

[00:21:10] Speaker 01:
It's not a qualification requirement.

[00:21:14] Speaker 01:
So Oracle did not raise prior to October 12, 2018, the close of bidding for this procurement, the proposal submission deadline.

[00:21:24] Speaker 01:
It didn't raise an argument that sub-factor 1.2 or any other sub-factor violated 10 USC 2319, which contains the

[00:21:33] Speaker 01:
the requirements if you want to implement a qualification requirement.

[00:21:37] Speaker 07:
But it did object to 1.2, did it not?

[00:21:41] Speaker 01:
Absolutely, Your Honor, yes.

[00:21:43] Speaker 01:
Oracle did object to 1.2 on the grounds that it was unduly restrictive of competition.

[00:21:50] Speaker 01:
Oracle did not object on the grounds that it violated a separate statute, a separate requirement, the 2319 qualification requirement.

[00:21:59] Speaker 01:
That objection didn't come until after the close of bidding.

[00:22:02] Speaker 01:
which Blue and Gold and its progeny teaches is too late to raise that objection.

[00:22:13] Speaker 01:
The main argument they make on appeal is that they reference pre-qualification in a pre-October 12th GAO filing, but for one thing, they didn't raise that argument in their briefing below, and the other point is that

[00:22:29] Speaker 01:
there's still no reference to 2319.

[00:22:30] Speaker 01:
They didn't say this is an illegal qualification requirement.

[00:22:35] Speaker 01:
They called it prequalification because they're saying that it exceeds DOD's legitimate needs because it required FedRAMP moderate authorization at the time of proposal.

[00:22:45] Speaker 07:
Right, well that's exactly what the distinction between a qualification requirement and a specification requirement is.

[00:22:51] Speaker 07:
If it doesn't

[00:22:54] Speaker 07:
isn't necessary for the particular program or the particular contract, then it becomes a qualification requirement, right?

[00:23:04] Speaker 01:
No, Your Honor.

[00:23:04] Speaker 01:
That would mean if it's not necessary for the particular program, it would be unduly restrictive of competition because it's not necessary to meet the agency's minimum needs.

[00:23:15] Speaker 07:
It's like two sides to the same coin, right?

[00:23:19] Speaker 01:
No, Your Honor.

[00:23:19] Speaker 01:
A qualification requirement is something different.

[00:23:22] Speaker 01:
A qualification requirement is

[00:23:24] Speaker 01:
It's a systemized quality assurance demonstration requirement on a continuing basis as an eligibility for award.

[00:23:30] Speaker 01:
That's what the Court of Federal Claims, the GAO have explained.

[00:23:34] Speaker 01:
So in other words, a qualification requirement is something outside of a particular procurement that potential contractors are required to meet, some sort of testing or quality assurance program that contractors are required to meet.

[00:23:50] Speaker 01:
in order to be eligible to compete for future procurements for that particular, it's usually products for that particular product.

[00:23:58] Speaker 01:
Like you would have your heat exchanger or something for an aircraft tested, go through this process in order to show that you're able to provide this to the government and then the government will issue solicitations and say that you have to have met this qualification requirement to be in there.

[00:24:14] Speaker 01:
Only three people are eligible to compete if they're on this qualified products list or if they're

[00:24:20] Speaker 01:
an approved source pursuant to the qualification requirement.

[00:24:22] Speaker 01:
That's not what we have here.

[00:24:23] Speaker 01:
What we have here is a JEDI-specific requirement, sub-factor 1.2.

[00:24:27] Speaker 01:
I mean, Oracle admits itself that FedRAM-moderate authorization is not typically required at the time of proposal submission or before award in any event in order to compete in cloud requirements.

[00:24:43] Speaker 01:
This requirement was put in specifically for JEDI.

[00:24:47] Speaker 01:
The agency explained, Mr. Van Naam explained in his memoranda why this requirement was being included for this particular procurement and the court of federal claims found that to be rational and that was correct.

[00:25:02] Speaker 07:
How do you distinguish Yates with the door system requirement that we found to be a qualification requirement?

[00:25:10] Speaker 01:
Well, in Yates, Your Honor, the solicitation issue, it listed specific pre-qualified manufacturers.

[00:25:18] Speaker 01:
It put those names in the actual solicitation, which seems to indicate that there was some sort of qualification requirement outside of this particular procurement for hangar doors in order for the agency to get those names that it was listing as pre-qualified.

[00:25:38] Speaker 01:
If Oracle's interpretation of 2319 and Yates is correct, I mean, this would essentially invalidate all pre-award gate criteria, all gate criteria that are designed to ensure that an offer can perform the work at issue in that solicitation.

[00:25:58] Speaker 05:
I mean, that's essentially what... You're asking us to assume?

[00:26:02] Speaker 05:
that the government, again, was innocent of the impact of this qualification requirement.

[00:26:09] Speaker 05:
And one of the points which constantly comes to mind as one looks at this is with the solicitation of this magnitude, the importance of the public policy aspects of government procurement, which seems to underline the statutes that we're here concerned with,

[00:26:31] Speaker 05:
breadth of the procurement, the scope that seems to go beyond simply saying who's got the best background to do this work.

[00:26:43] Speaker 05:
And the question that federal claims seem to be wrestling with is where the boundary is in terms of the judicial role in assuring that procurements comply with the policy of the law

[00:27:01] Speaker 05:
Of course, this raises the question as well.

[00:27:05] Speaker 05:
We haven't gotten into it of prejudice and the participation, many of the issues that are raised in the briefs.

[00:27:13] Speaker 05:
Would you comment particularly on the emphasis that the oracles brief makes on the presence of the people who were involved and their connection with potential bidders in this case?

[00:27:31] Speaker 05:
is the Amazon connection.

[00:27:34] Speaker 01:
Sure, Your Honor.

[00:27:36] Speaker 01:
I can address that.

[00:27:37] Speaker 01:
And that, you know, I mean, there's no question.

[00:27:43] Speaker 05:
Address the impact on his face that these arguments have on the objectivity of the procurement process.

[00:27:53] Speaker 05:
It's true it didn't, I know you're saying your briefs made no difference because they didn't get the contract, but it is a factor that I think is of public significance.

[00:28:09] Speaker 01:
Sure, Your Honor, and I'll approach that in two ways.

[00:28:13] Speaker 01:
One, with regard to the particular sub-factor here that the

[00:28:19] Speaker 01:
that Oracle doesn't meet, or one of them, sub-factor 1.2, in terms of two of the people that Oracle alleged, Mr. Gavin and Mr. DiMartino, there's no allegation that they had anything to do with the GATE criteria.

[00:28:31] Speaker 01:
With regard to Mr. Ubi, the particular requirement that's at issue here, the FedRAMP moderate requirement, that wasn't added to a draft solicitation until after

[00:28:42] Speaker 01:
March 2018, the first draft solicitation did not include the federal and moderate requirements.

[00:28:48] Speaker 01:
So Mr. Ubi was long gone from DOD by the time that this particular requirement was included.

[00:28:55] Speaker 01:
More broadly, there's no dispute here that Mr. Ubi's actions and to a more limited extent Mr. Gavin's actions were inappropriate in this case, that they violated FAR 3.101,

[00:29:13] Speaker 01:
in terms of avoiding the appearance of conflicts of interest.

[00:29:18] Speaker 01:
But the FAR gives the contracting officer discretion to determine the, determine how to handle these issues, to determine what's the effect of these particular, of the particular issues that occurred during the process.

[00:29:35] Speaker 01:
I mean, just speaking generally, FAR 1.602-2,

[00:29:39] Speaker 01:
says that contracting officers are responsible for ensuring performance of all necessary actions for effective contracting.

[00:29:45] Speaker 01:
And in order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment.

[00:29:52] Speaker 01:
And that includes ensuring that contractors receive impartial, fair, and equitable treatment.

[00:29:57] Speaker 01:
So this responsibility comes to the contracting officer.

[00:30:01] Speaker 01:
And FAR 9.505 gets more specific in terms of organizational conflicts of interest.

[00:30:09] Speaker 01:
in talking about how it's, you know, the exercise of common sense, good judgment, and sound discretion is required in determining whether a significant potential conflict exists and if it does, developing the appropriate means of resolving it.

[00:30:22] Speaker 01:
So, you know, I mean, Oracle's argument here that a potential 18 U.S.C.

[00:30:29] Speaker 01:
208 violation, or excuse me, 10 U.S.C.

[00:30:32] Speaker 01:
208 violation by Mr. Hoobie or Mr. Gavin, which incidentally no court or agency has actually found.

[00:30:39] Speaker 01:
If they, but their argument that a violation of this statute would mean that the procurement is essentially void, Your Honor, may I continue?

[00:30:49] Speaker 05:
No, please continue.

[00:30:50] Speaker 05:
Yes, this is important.

[00:30:52] Speaker 01:
Yeah, I mean the idea that this procurement would then be void of an issue, it was flatly rejected in the Godley case.

[00:31:01] Speaker 01:
The Godley case specifically said, illegal acts by a government contracting agent

[00:31:05] Speaker 01:
do not alone taint the contract and invoke the void of initial rule.

[00:31:09] Speaker 01:
Rather, the record must show some causal link between the illegality and the contract provisions.

[00:31:16] Speaker 01:
And Oracle's attempt to distinguish Godley on the basis of that, you know, this case involves, quote, conflicting incentives.

[00:31:23] Speaker 01:
I mean, Godley involves a contracting official is pled guilty to bribery.

[00:31:28] Speaker 01:
So if that's not a conflicting incentive, then I mean, nothing is.

[00:31:33] Speaker 01:
So the contracting officer looked at the involvement of these particular individuals, particularly Mr. Ubi, did a very thorough look at Mr. Ubi's involvement in the solicitation, a detailed review of interviews with DOD employees, a detailed review of emails, Slack messages, Google Drive documents, culminating in a 28-page no-impact determination.

[00:31:58] Speaker 01:
And she determined that Mr. Ubi

[00:32:03] Speaker 01:
you know, while he did, he should not have been participating in the procurement that ultimately he had no impact.

[00:32:10] Speaker 01:
The main reason being that all the key decisions for the Jedi Cloud procurement such as the actual RFP terms and whether to award one or multiple contracts were made well after Mr. Ubi recused himself after being vetted by numerous DOD personnel to ensure that the Jedi Cloud RFP truly reflects DOD's requirement.

[00:32:29] Speaker 05:
You're telling us that... Okay, I'll proceed.

[00:32:35] Speaker 05:
What I hear you saying is never mind if there are facially illegal acts, excepting that these haven't been litigated, but facially illegal acts, you just proceed and if it turns out in the end it didn't make a difference or arguably didn't make a difference, then never mind the illegal acts

[00:32:58] Speaker 05:
are tolerated and need not be remedied along the way but can be accepted because I don't think anyone has said that the possible conflict was unknown, at least to those who were involved with the alleged conflict.

[00:33:17] Speaker 05:
You're saying you just wait and see how it comes out.

[00:33:19] Speaker 01:
Well, it certainly was unknown, Your Honor.

[00:33:22] Speaker 05:
I'm sorry.

[00:33:23] Speaker 05:
It wasn't unknown to them.

[00:33:25] Speaker 01:
It wasn't unknown to Mr. Ubi, that's true, but he was misleading the Department of Defense as to, he wasn't telling anyone that he was conducting discussions with Amazon about employment while he was working on JEDI.

[00:33:42] Speaker 01:
He gave a completely different explanation for why he recused himself in October 2017.

[00:33:49] Speaker 01:
So the contracting officer's duty was then to look at this situation

[00:33:54] Speaker 01:
and assess whether that was, whether this impacts the procurement.

[00:33:58] Speaker 01:
And she did a very thorough review of this.

[00:34:02] Speaker 01:
And, I mean, one way to look at this is, you know, if there was an impact on the procurement, I mean, what if hypothetically Mr. Ubi had written the solicitation himself?

[00:34:12] Speaker 01:
What would be the remedy for that?

[00:34:13] Speaker 01:
Well, the remedy would presumably be for the agency to go back, take a look at its requirements without Mr. Ubi's involvement.

[00:34:20] Speaker 01:
and make sure that these are still the requirements or change them if they're not.

[00:34:23] Speaker 01:
But the agency has already done that multiple times.

[00:34:26] Speaker 01:
It's gone through a DPAP review, a review by the Department of Defense Chief Information Officer and reviewed by numerous stakeholders within DOD well after Mr. Ubi had left the government.

[00:34:39] Speaker 01:
So, I mean, the Jedi cloud requirements are well established

[00:34:48] Speaker 07:
This would all require us to assume that Mississippi Valley is no longer good law.

[00:34:56] Speaker 07:
Is that right?

[00:34:57] Speaker 01:
Absolutely not, Your Honor.

[00:34:58] Speaker 01:
No.

[00:34:59] Speaker 01:
Mississippi Valley is still good law, but the Godley Court explained what Mississippi Valley means.

[00:35:06] Speaker 01:
It doesn't mean that simply because there was a violation of Section 208 that that alone taints the contract.

[00:35:13] Speaker 01:
It has to actually

[00:35:15] Speaker 01:
the contract has to actually result from the illegality.

[00:35:19] Speaker 01:
And the Godley court explained that.

[00:35:22] Speaker 01:
It wasn't, Godley obviously was in, or excuse me, this court was obviously in no position to overturn Mississippi Valley and Godley.

[00:35:29] Speaker 01:
It was simply explaining what it means.

[00:35:31] Speaker 01:
And Oracle simply has a very different view of Mississippi Valley than this court does.

[00:35:37] Speaker 04:
Mr. Rao, I have a question, if I may.

[00:35:39] Speaker 04:
Yes.

[00:35:41] Speaker 04:
On going back to the whole issue of Chenery,

[00:35:44] Speaker 04:
and harmless error.

[00:35:46] Speaker 04:
I mean, we struggled in various cases with the field that is occupied by Chenery as opposed to the field where harmless error has a role to play when the reviewing court finds that there was error but ultimately finds that the error was not prejudicial.

[00:36:05] Speaker 04:
Can you explain why it is that you think in this case the Court of Federal Claims harmless error analysis

[00:36:14] Speaker 04:
should apply as opposed to the Chenery doctrine.

[00:36:20] Speaker 01:
Thank you, Your Honor.

[00:36:20] Speaker 01:
I did want to get back to that.

[00:36:22] Speaker 01:
I mean, Chenery is not a harmless error case.

[00:36:26] Speaker 01:
The holding of Chenery in these other cases that Oracle is citing is that a court cannot, it can't affirm an agency's decision

[00:36:40] Speaker 01:
based on a rationale that the agency didn't give.

[00:36:44] Speaker 01:
It can't put in its own rationale.

[00:36:46] Speaker 01:
It can't say, well, the overarching decision is reasonable because of a reason that the agency didn't give but the court has determined in its wisdom.

[00:36:59] Speaker 04:
That's not what... But in this case, isn't what Judge Brugink did ultimately was to say

[00:37:08] Speaker 04:
that there was harmless error here because the agency, had it been required to do this as a multi-source procurement, would have kept gate 1.2 in effect.

[00:37:24] Speaker 01:
Right, and he based that on the administrative record.

[00:37:27] Speaker 01:
That's a proper harmless error analysis.

[00:37:30] Speaker 01:
He wasn't saying gate 1.2 is reasonable.

[00:37:34] Speaker 01:
based on, you know, whatever reasons he can come up with.

[00:37:38] Speaker 01:
He was saying that if this error had not occurred, then it's likely that gate 1.2 would have remained, this dead grant moderate requirement would have remained because in DOD's view, which he found to be reasonable, security requirements increase in a multiple award.

[00:38:02] Speaker 01:
situation, and that's a perfectly logical, reasonable, harmless error requirement.

[00:38:08] Speaker 01:
And it's the harmless error requirement that's required by this court in cases such as Clinicom, Glenn Defense, the Wellpoint decision that was just issued a few months ago.

[00:38:19] Speaker 01:
Wellpoint's a great example where the court found that even if the offeror should have been given a higher rating for a particular factor,

[00:38:30] Speaker 01:
it's still not a substantial chance it would have gotten the award.

[00:38:35] Speaker 01:
I mean, there's no suggestion in the Wellpoint case that the agency had done this hypothetical analysis with the increased corporate experience and capability rating.

[00:38:47] Speaker 01:
But based on the evidence of record, this court was able to say that there's not a substantial chance.

[00:38:53] Speaker 01:
A contractor doesn't have to prove it would have won the award if it hadn't

[00:39:00] Speaker 01:
if the error hadn't occurred, but it does need to demonstrate a substantial chance, or at a minimum, that it could have competed.

[00:39:06] Speaker 05:
And that's what Orbs will... Okay, but just to complete that thought, I recall Judge Breving didn't discuss whether the compliance with Gate 112 had to be complete

[00:39:21] Speaker 05:
before the initial bidding process.

[00:39:24] Speaker 05:
And as we've heard today, Oracle says that they've well over now complied with that threshold requirement.

[00:39:33] Speaker 05:
But where as to how harmless error also applies to drawing this line, which they tell us was arbitrary.

[00:39:44] Speaker 05:
Is there anything that you can elaborate on that?

[00:39:50] Speaker 01:
Sure.

[00:39:50] Speaker 01:
If I think I understand the court's question, it's getting to Oracle's argument that the court was looking at the wrong timeframe, I guess, for the prejudice.

[00:40:04] Speaker 01:
In Oracle's view, in other words, the question is whether or not they could compete if there's a remand versus whether or not they were harmed by the actual error.

[00:40:15] Speaker 05:
But the solicitation went too far in requiring the compliance

[00:40:20] Speaker 05:
before the beginning of bidding.

[00:40:23] Speaker 01:
Yes.

[00:40:23] Speaker 01:
Well, that's Oracle's argument, yes.

[00:40:24] Speaker 01:
And if they're correct about that, then that's an issue for us.

[00:40:29] Speaker 01:
And our position, as we've explained in the briefing here at argument, is that sub-factor 1.2 is in fact enforceable.

[00:40:37] Speaker 01:
And if sub-factor 1.2 is enforceable, getting to the practice question, what would have happened if

[00:40:44] Speaker 01:
the agency hadn't made this error that the trial court found of invoking an inapplicable exception to the single award prohibition in the statute.

[00:40:56] Speaker 01:
And the trial court correctly found that the sub-factor 1.2 would not have changed and oracles would still not be eligible for award.

[00:41:10] Speaker 01:
in this case.

[00:41:11] Speaker 01:
And the idea that we should instead be looking at what might happen in the future on remand, I mean, that raises fundamental fairness concerns in the government procurement context.

[00:41:23] Speaker 01:
Just to give an example, let's say a plaintiff came in and argued that the government had conducted improper discussions during the evaluation, that if they had told that particular offer or something,

[00:41:37] Speaker 01:
they might have changed their proposal.

[00:41:39] Speaker 01:
But in looking at that, the court can say, well, there's no way they would have changed their proposal enough to actually get the award at that time.

[00:41:48] Speaker 01:
So under a proper prejudice analysis, then you would say they're not prejudiced.

[00:41:52] Speaker 01:
But if the question is instead, what could they do on remand if the agency's forced to go back and look at those, do those discussions again, well, now they know the winner's price.

[00:42:02] Speaker 01:
So now they can set their,

[00:42:06] Speaker 01:
proposal to try to match the winner after learning all this information during a debriefing.

[00:42:11] Speaker 01:
And, you know, that's not the law of the Federal Circuit.

[00:42:15] Speaker 01:
The Federal Circuit is what would have happened if the error had not occurred.

[00:42:19] Speaker 01:
Cases like, I mean, Labatt is a great example of that.

[00:42:22] Speaker 01:
But it also raises, you know, fundamental fairness concerns.

[00:42:26] Speaker 01:
If it were simply could you compete in a rebid, that would not be the appropriate standard for that reason as well.

[00:42:37] Speaker 05:
Okay.

[00:42:38] Speaker 05:
Any more questions for Mr. Rayl?

[00:42:42] Speaker 05:
No, thank you.

[00:42:43] Speaker 00:
No.

[00:42:44] Speaker 00:
Okay.

[00:42:44] Speaker 05:
Thank you.

[00:42:45] Speaker 05:
Mr. Foreman, you have one minute.

[00:42:46] Speaker 05:
Thank you, Your Honor.

[00:42:48] Speaker 00:
Thank you, Your Honors.

[00:42:49] Speaker 00:
May it please the Court.

[00:42:50] Speaker 00:
Your Honors, we reserved only one minute because there's only one issue in the appeal that addresses AWS, and that's Oracle's organizational conflict argument.

[00:42:59] Speaker 00:
Now, while Oracle didn't address conflicts during its argument today,

[00:43:02] Speaker 00:
It's important to note that in its briefs, Oracle conflates its organizational and its individual conflict arguments, but they're separate and distinct issues and must be evaluated as such.

[00:43:12] Speaker 00:
Your Honor, individual conflict arguments concern the actions of individual government employees.

[00:43:18] Speaker 00:
In sharp contrast, organizational conflicts concern a company's actions, and they're analyzed under a completely separate set of regulations.

[00:43:26] Speaker 00:
Your Honor, those regulations provide the contracting officer with the sole discretion to evaluate and resolve

[00:43:32] Speaker 00:
the alleged complex.

[00:43:34] Speaker 00:
And as we set forth in our brief, the contracting officer here conducted a thorough investigation and concluded that there were no organizational conflicts.

[00:43:42] Speaker 00:
And that turned on the fact that AWS did not receive any competitively useful non-public information.

[00:43:49] Speaker 00:
The Court of Federal Claims correctly held that the CO determination was rational.

[00:43:55] Speaker 00:
Accordingly, Your Honor, the decision below should be affirmed.

[00:43:59] Speaker 05:
Any questions for Mr. Foreman?

[00:44:02] Speaker 05:
All right, thank you.

[00:44:03] Speaker 05:
We'll return to the other side.

[00:44:05] Speaker 05:
See you for Mr. Holman.

[00:44:09] Speaker 05:
Michael, would you enlarge the rebuttal time by the amount we've run over?

[00:44:14] Speaker 03:
Okay, for your reference, Your Honor, we exceeded Appellee's time by 12 minutes.

[00:44:20] Speaker 03:
There was one minute and 17 seconds remaining for Appellant's argument, so I could set it for 11 minutes if you'd like.

[00:44:27] Speaker 05:
All right, let's start with that.

[00:44:29] Speaker 03:
Okay, thank you.

[00:44:31] Speaker 05:
Thank you.

[00:44:31] Speaker 05:
Okay, Mr. Holman.

[00:44:33] Speaker 02:
Thank you, Your Honor.

[00:44:34] Speaker 02:
I want to pick up really where Mr. Foreman just left off because I think it ties into some things Mr. Rayl said.

[00:44:42] Speaker 02:
Indeed, maybe one of the few things I agree with on Mr. Foreman in this case, but there are fundamentally different rules for government conflicts and contractor conflicts that the United States has conflated in its arguments.

[00:44:56] Speaker 02:
What we're dealing with primarily when we're talking about

[00:45:00] Speaker 02:
Mr. Ubi, Mr. Gavin and Mr. DiMartino are government conflicts.

[00:45:04] Speaker 02:
These are not Mr. Rail reference FAR 9.5.

[00:45:07] Speaker 02:
These are not FAR 9.5 conflicts.

[00:45:09] Speaker 02:
These are different conflicts and they're subject to different rules.

[00:45:13] Speaker 02:
And one of the very important things to me is that Mississippi Valley is good law.

[00:45:21] Speaker 02:
Mississippi Valley is correct law and Mississippi Valley is indeed quite like this case.

[00:45:28] Speaker 04:
I'm sorry, Mr. Holman.

[00:45:32] Speaker 04:
Mississippi Valley, it seemed to me after reading, it is a case in which there was a conclusion by the court that the conflict infected, I think that was the court's word, the contract.

[00:45:48] Speaker 04:
Isn't it the case that, as Mr. Rayl says, that Godley, and there are several other cases following Godley from our court, say that Mississippi

[00:45:58] Speaker 04:
is limited to cases in which the contract was, I think the quote is, tainted by fraud.

[00:46:06] Speaker 04:
And the conclusion that was reached in this case was this is not such a contract.

[00:46:11] Speaker 04:
Why isn't that a proper reading of Mississippi?

[00:46:16] Speaker 02:
Well, Your Honor, let me just say first of all, if that's where you came out, it wouldn't bother me because I think you would still have to rule in Oracle's favor.

[00:46:24] Speaker 04:
Let me tell you why.

[00:46:26] Speaker 04:
It wouldn't bother you.

[00:46:27] Speaker 04:
I'm trying to find out what is the correct reading of Mississippi Valley.

[00:46:32] Speaker 04:
And the reading that we have given in the past is that there is some tape required.

[00:46:37] Speaker 04:
Otherwise, if it were a per se rule that the contract is void, if there's any conflict of interest anywhere in the vicinity, then that would just

[00:46:53] Speaker 04:
It seems to me go way beyond anything that we've recognized as an appropriate sphere for overturning a contract.

[00:47:03] Speaker 02:
Well, let me answer that directly, and then I do want to switch back to Godley for one second.

[00:47:08] Speaker 02:
But I want to answer that directly.

[00:47:10] Speaker 02:
The test, Your Honor, is in 18 USC section 208.

[00:47:14] Speaker 02:
And that's what the court said in Mississippi Valley.

[00:47:18] Speaker 02:
And that's what numerous cases have said since.

[00:47:21] Speaker 02:
And it's an objective test.

[00:47:23] Speaker 02:
And the question is, and it was talked about by this court's predecessor in KNR as well, the question is, on the issue you're talking about, was there personal and substantial participation in the record, the record, not only all of the facts that we've laid out, but the record itself identifies Mr. Ubi

[00:47:46] Speaker 02:
as personally and substantially participating in JEDI.

[00:47:50] Speaker 02:
That is 18 U.S.C.

[00:47:52] Speaker 02:
208.

[00:47:53] Speaker 04:
And that's the objective test that Congress.

[00:47:55] Speaker 04:
What I'm focusing on here is the language, particularly language from Godley that says the record must show some causal link between the illegality and the contract provisions.

[00:48:07] Speaker 04:
Now, Mr. Ubi may have been involved to some extent at least early on in the,

[00:48:16] Speaker 04:
negotiations, internal negotiations over the form that the procurement should take.

[00:48:22] Speaker 04:
But if the conclusion is correct that was reached by the contracting officer and sustained by the COFC that there was no taint from his participation, then isn't that the correct rule to apply in the case of a conflict and its effect on the contract?

[00:48:46] Speaker 04:
The question of whether you had an effect, just looking at the rule, isn't that a correct statement of the proper rule?

[00:48:57] Speaker 02:
I think that the test that Congress set, Your Honor, was meant to be objective, precisely because people hide.

[00:49:04] Speaker 02:
This is the teaching of Mississippi Valley, is that people who are doing things improper don't admit them.

[00:49:11] Speaker 02:
not going to put them out in the public.

[00:49:12] Speaker 02:
That's why Congress set an objective test as if a person is personally and substantially involved, right?

[00:49:19] Speaker 02:
It doesn't matter.

[00:49:20] Speaker 02:
It's not what they did.

[00:49:21] Speaker 02:
It's are they personally and substantially involved such that they could have an impact on this because by the very nature of somebody who is violating the law is going to hide what they're doing.

[00:49:32] Speaker 02:
What's complicated in this case, what becomes more complicated in this case,

[00:49:36] Speaker 02:
is that indeed the contracting officer who's making the findings that your honor is seeking to rely on was found by the court of federal claims to have missed these conflicts in the first place.

[00:49:48] Speaker 02:
The contracting officer was responsible for this.

[00:49:51] Speaker 02:
That's why Mississippi Valley says Congress didn't empower the agency to review the 18 USC issue because the very people who missed this conflict and who, excuse me, made this mistake in this procurement

[00:50:06] Speaker 02:
are the very ones who were writing things saying, we didn't hurt anybody by the mistake we made.

[00:50:12] Speaker 04:
And that's not a... I mean, isn't the principle with respect to Mr. Ubi at least, isn't the principle source of missing the conflict was that they were operating under a misapprehension which was generated by Mr. Ubi as to the nature of his interaction with AWS which AWS later corrected.

[00:50:34] Speaker 04:
I think it's unquestionable, Your Honor, from the record.

[00:50:38] Speaker 02:
It's unquestionable, Your Honor, that Mr. Ubi lied to the Department of Defense.

[00:50:46] Speaker 02:
That's unquestionable.

[00:50:49] Speaker 02:
But indeed, nobody screened Mr. Ubi, which is a Department of Defense DEFAR's requirement.

[00:50:55] Speaker 02:
Nobody got Mr. Ubi to sign his conflict of interest statement prior to participating in the procurement, which he was required to do.

[00:51:03] Speaker 02:
None of that occurred in this case.

[00:51:04] Speaker 02:
So in this $10 billion procurement, one of the four people that was leading it, and that's their description of him, one of the four people leading JEDI, was set onto this procurement, this $10 billion procurement with nobody screening them for conflicts of interest and no NDA in place.

[00:51:22] Speaker 02:
He then proceeded to lie about this stuff to DOD, no doubt about it.

[00:51:26] Speaker 02:
But let me tell you the other thing that's important that goes to what you said because you said the court of federal claims

[00:51:33] Speaker 02:
The CO found something and the Court of Federal Claims agreed on impact.

[00:51:37] Speaker 02:
Let's be clear what happened.

[00:51:39] Speaker 02:
The contracting officer after this had to get sent back on remand and after the memorandum analysis said that Mr. Ubi didn't impact this procurement in particular.

[00:51:50] Speaker 02:
One of the things we focus on is the single award decision which he was the architect of and the person driving it inside DOD.

[00:51:57] Speaker 02:
The contracting officer when you read her memorandum says Mr. Ubi didn't impact that.

[00:52:02] Speaker 02:
because the decision wasn't made until summer of 2018, after April 2018, summer of 2018, when Secretary Lord signs the DNS.

[00:52:14] Speaker 02:
There's reams of evidence to the contrary in the record.

[00:52:18] Speaker 02:
So what the Court of Federal Claims said, and this, again, breaking with Supreme Court precedent, breaking with this court's precedent in OMV, the lower court said the single award decision

[00:52:31] Speaker 02:
had left the train before the procurement started.

[00:52:35] Speaker 02:
So the court, looking at the same record that the CO says the decision is not made until summer of 2018, the lower court concludes that it was made before, that the award decision was made before the procurement started.

[00:52:48] Speaker 02:
And there's no way to reconcile these two facts.

[00:52:51] Speaker 02:
And when you look through the record, what you're going to see is that Ubi was the architect of the single award decision.

[00:52:56] Speaker 02:
which AWS was the only competitor pressing at the time.

[00:53:00] Speaker 02:
He was actively lobbying the people.

[00:53:03] Speaker 02:
This is all through the record.

[00:53:05] Speaker 02:
And there is no way to say that Mr. Ubi did not impact this procurement.

[00:53:10] Speaker 02:
And that's why there's been so much public outcry about this particular issue, Your Honor.

[00:53:17] Speaker 02:
And that is the harm that Mississippi Valley was telling us that Congress was trying to avoid.

[00:53:23] Speaker 02:
And that indeed that the courts needed to try and avoid, which was a lack of public trust in the procurement because of conflicted government official.

[00:53:34] Speaker 02:
And here we have somebody who's not only negotiating with AWS while it's involved in the procurement, it's communicating with AWS.

[00:53:41] Speaker 02:
AWS came in and met with Mr. Ubi while Mr. Ubi was cloaked in Department of Defense clothes.

[00:53:48] Speaker 02:
Nobody got told AWS came in and met about the procurement.

[00:53:52] Speaker 02:
IAWS didn't tell DOD, UBI didn't tell DOD, no one told DOD.

[00:53:58] Speaker 02:
And indeed, this is not a procurement that can survive an objective test because at the end of the day, that's what needs to be applied here under Section 208.

[00:54:10] Speaker 02:
I want to just very quickly touch on Godley because it's important.

[00:54:13] Speaker 02:
The government keeps relying on Godley and, you know, it's important to note that in Godley, what was happening was the government,

[00:54:20] Speaker 02:
was asking this court to reverse the lower court for not finding the contract void ab initio.

[00:54:27] Speaker 02:
And this court did that.

[00:54:28] Speaker 02:
And Godley didn't involve a section 208 finding.

[00:54:33] Speaker 02:
It did involve references to Mississippi Valley.

[00:54:35] Speaker 02:
But there's nothing helpful when you read Godley for what it is, which is the United States saying to this court in Godley that it's imperative with these type of contracts that we have the ability to find them void ab initio.

[00:54:49] Speaker 02:
Because it's convenient in this large procurement for Mr. Rail to stand in front of you and tell this court a different thing today doesn't mean what the Department of Justice was telling this court in Godley reversed the lower court.

[00:55:03] Speaker 02:
We can't have these kind of tainted contracts is not the correct policy.

[00:55:07] Speaker 02:
Congress has spoken to Section 208, through Section 208, the Supreme Court has spoken to this issue in Mississippi Valley.

[00:55:15] Speaker 02:
If I could very quickly turn to and very quickly

[00:55:19] Speaker 02:
to FedRAMP, I want to touch on some of the points about gate 12 that Mr. Rail made.

[00:55:24] Speaker 02:
First of all, FedRAMP quite clearly is not a JEDI requirement.

[00:55:27] Speaker 02:
DOD repeatedly has admitted that.

[00:55:29] Speaker 02:
It's clear in the solicitation.

[00:55:30] Speaker 02:
Why?

[00:55:31] Speaker 02:
Because it takes too long to get through FedRAMP.

[00:55:33] Speaker 02:
They're not using FedRAMP to perform this contract.

[00:55:36] Speaker 02:
It is not a specification of performance.

[00:55:39] Speaker 02:
Indeed, FedRAMP itself prohibited

[00:55:43] Speaker 02:
If you went to the FedRAMP site when DOD was issuing this procurement, you would have seen a note up here on FedRAMP that they couldn't do exactly what they did, which was use it as a gating requirement.

[00:55:53] Speaker 02:
That's why it doesn't exist in other procurements.

[00:55:55] Speaker 02:
It's because FedRAMP prohibited it, and they went and they did it anyways.

[00:56:00] Speaker 02:
I hear that my time has expired.

[00:56:02] Speaker 05:
So if the court has... Are there any more questions to home?

[00:56:08] Speaker 07:
No.

[00:56:09] Speaker 07:
No.

[00:56:10] Speaker 05:
Okay, thank you all.

[00:56:12] Speaker 05:
The case is submitted.