No. 20-1057
`In the Supreme Court of the United States
`
`
`
`ORACLE AMERICA, INC., PETITIONER
`v.
`UNITED STATES OF AMERICA, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES IN OPPOSITION
`
`
`
` ELIZABETH B. PRELOGAR
`Acting Solicitor General
`Counsel of Record
`BRIAN M. BOYNTON
`Acting Assistant Attorney
`General
`PATRICIA M. MCCARTHY
`WILLIAM P. RAYEL
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`ORACLE AMERICA, INC., PETITIONER
`v.
`UNITED STATES OF AMERICA, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES IN OPPOSITION
`
`
`
` ELIZABETH B. PRELOGAR
`Acting Solicitor General
`Counsel of Record
`BRIAN M. BOYNTON
`Acting Assistant Attorney
`General
`PATRICIA M. MCCARTHY
`WILLIAM P. RAYEL
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`1. Whether under the provision in the Administra-
`tive Procedure Act stating that “due account shall be
`taken of the rule of prejudicial error” when reviewing
`agency action, 5 U.S.C. 706, a court may deny a bid pro-
`test when it determines that the plaintiff was not prej-
`udiced by an allegedly improper term in the agency’s
`solicitation because the plaintiff was ineligible for a con-
`tract award under a separate, lawful term of the solici-
`tation.
`2. Whether a court may defer to a federal contract-
`ing officer’s factual determinations, following an inves-
`tigation, that potential conflicts of interest on the part
`of certain agency employees did not affect the procure-
`ment.
`
`
`
`
`
`(I)
`
`
`
`ADDITIONAL RELATED PROCEEDINGS
`United States Court of Federal Claims:
`Amazon Web Services, Inc. v. United States, No. 19-
`cv-1796 (filed Nov. 22, 2019)
`United States Government Accountability Office:
`Oracle America, Inc., B-416657 et al., 2018 CPD
`¶ 391 (Comp. Gen. Nov. 14, 2018)
`
`
`
`(II)
`
`
`
`TABLE OF CONTENTS
`
`Page
`Opinions below .............................................................................. 1
`Jurisdiction .................................................................................... 1
`Statement ...................................................................................... 2
`Argument ..................................................................................... 14
`Conclusion ................................................................................... 32
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`Axiom Resource Management, Inc. v. United States,
`564 F.3d 1374 (Fed. Cir. 2009) ........................................... 30
`Camp v. Pitts, 411 U.S. 138 (1973) ....................................... 29
`Citizens to Preserve Overton Park, Inc. v. Volpe,
`401 U.S. 402 (1971).............................................................. 29
`CliniComp International, Inc. v. United States,
`904 F.3d 1353 (Fed. Cir. 2018) ........................................... 21
`Department of Commerce v. New York,
`139 S. Ct. 2551 (2019) ................................................... 20, 21
`Department of Homeland Security v. Regents of the
`University of California, 140 S. Ct. 1891 (2020) ............. 12
`Energy Transportation Group, Inc. v. Maritime
`Administration, 956 F.2d 1206 (D.C. Cir. 1992) ............. 26
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009).............................................................. 29
`Godley v. United States, 5 F.3d 1473 (Fed. Cir. 1993) ...... 28
`Little Sisters of the Poor Saints Peter & Paul Home
`v. Pennsylvania, 140 S. Ct. 2367 (2020) ..................... 19, 21
`Michigan v. EPA, 576 U.S. 743 (2015) ................................ 21
`National Association of Home Builders v. Defenders
`of Wildlife, 551 U.S. 644, (2007) ........................................ 20
`SEC v. Chenery Corp., 318 U.S. 80 (1943)..................... 12, 19
`Shapiro v. McManus, 577 U.S. 39 (2015) ........................... 25
`
`(III)
`
`
`
`IV
`
`Page
`Cases—Continued:
`Shinseki v. Sanders, 556 U.S. 396 (2009) .......... 15, 17, 20, 22
`Tyler Construction Group v. United States,
`570 F.3d 1329 (Fed. Cir. 2009) ........................................... 30
`United States v. Mississippi Valley Generating Co.,
`364 U.S. 520 (1961)........................................................ 27, 28
`U.S. Bank National Association v. Village at Lak-
`eridge, LLC, 138 S. Ct. 9608 (2018) ............................. 21, 22
`United States ex. rel. Siewick v. Jamieson Science &
`Engineering, Inc., 214 F.3d 1372 (D.C. Cir. 2000) .......... 27
`
`Statutes and regulations:
`National Defense Authorization Act for Fiscal Year
`2020, Pub. L. No. 116-92, Div. A, Tit. VIII,
`§ 816, 133 Stat. 1487.............................................................. 4
`Administrative Procedure Act,
`5 U.S.C. 701 et seq.:
`5 U.S.C. 706 ......................................... 15, 16, 17, 19, 20, 25
`5 U.S.C. 706(2)(A) ...................................................... 19, 29
`10 U.S.C. 2304a(d) (2018 & Supp. I 2019) ............................. 9
`10 U.S.C. 2304a(d)(3) (2018) ................................................... 4
`10 U.S.C. 2304a(d)(3) (Supp. I 2019) ............... 4, 14, 23, 24, 25
`10 U.S.C. 2304a(d)(3)(A) (Supp. I 2019) ................................ 4
`10 U.S.C. 2304a(d)(3)(A)-(D) (Supp. I 2019) ......................... 4
`10 U.S.C. 2304a(d)(3)(A)(i)-(iv) (Supp. I 2019) ...................... 4
`10 U.S.C. 2304a(d)(3)(A)(ii) (Supp. I 2019) ......... 9, 21, 23, 24
`10 U.S.C. 2304a(d)(3)(A)(ii)(II) (Supp. I 2019) ..... 5, 9, 23, 24
`10 U.S.C. 2304a(d)(4)(A) ......................................................... 2
`10 U.S.C. 2304a(d)(4)(B) ......................................................... 3
`10 U.S.C. 2304d ........................................................................ 2
`10 U.S.C. 2304d(1) ................................................................... 2
`10 U.S.C. 2304d(2) ................................................................... 2
`
`
`
`
`
`V
`
`Page
`Statutes and regulations—Continued:
`10 U.S.C. 2305(b)(1) ............................................................... 16
`18 U.S.C. 208 ............................................... 8, 14, 26, 27, 30, 31
`28 U.S.C. 1491(b)(1) ............................................................... 15
`28 U.S.C. 1491(b)(4) .................................................. 15, 25, 28
`41 U.S.C. 1303(a)(1) ............................................................... 29
`41 U.S.C. 1908 .......................................................................... 4
`48 C.F.R.:
`Pt. 1:
`Section 1.102(d) .......................................................... 30
`Section 1.602-2 ....................................................... 6, 29
`Section 1.602-2(b)................................................... 6, 29
`Pt. 3:
`Section 3.101 ................................................................. 8
`Section 3.104-7(a) ................................................... 6, 29
`Pt. 9:
`Section 9.505 ........................................................... 6, 30
`Pt. 16:
`Section 16.504 ............................................................... 9
`Section 16.504(c)(1)(ii)(B) ........................................... 3
`Section 16.504(c)(1)(ii)(B)(2) ....................................... 3
`Section 16.504(c)(1)(ii)(B)(3) ....................................... 3
`Section 16.504(c)(1)(ii)(B)(6) ....................................... 4
`
`
`
`
`
`Miscellaneous:
`Attorney General’s Manual on the Adminis-
`trative Procedure Act (1947) .............................. 25
`
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`No. 20-1057
`ORACLE AMERICA, INC., PETITIONER
`v.
`UNITED STATES OF AMERICA, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES IN OPPOSITION
`
`
`
`OPINIONS BELOW
`The opinion of the court of appeals (Pet. App. 1a-39a)
`is reported at 975 F.3d 1279. The opinion of the Court
`of Federal Claims (Pet. App. 40a-120a) is reported at
`144 Fed. Cl. 88. Prior orders of the Court of Federal
`Claims are reported at 143 Fed. Cl. 131 and 146 Fed. Cl.
`606. Another prior order of the Court of Federal Claims
`is not published in the Federal Claims Reporter but is
`available at 2019 WL 354705.
`JURISDICTION
`The judgment of the court of appeals was entered on
`September 2, 2020. On March 19, 2020, this Court ex-
`tended the time within which to file any petition for a
`writ of certiorari due on or after that date to 150 days
`from the date of the lower-court judgment, order deny-
`ing discretionary review, or order denying a timely pe-
`tition for rehearing. The petition for a writ of certiorari
`
`(1)
`
`
`
`2
`
`was filed on January 29, 2021. The jurisdiction of this
`Court is invoked under 28 U.S.C. 1254(1).
`STATEMENT
`Petitioner protested a Department of Defense (DoD)
`procurement at the Government Accountability Office
`(GAO). GAO denied that bid protest. Petitioner then
`filed a complaint in the Court of Federal Claims. The
`Court of Federal Claims denied petitioner’s protest and
`granted judgment in favor of the government on the ad-
`ministrative record. Pet. App. 40a-120a. The court of
`appeals affirmed. Id. at 1a-39a.
`1. a. This case arises out of the Joint Enterprise De-
`fense Infrastructure (JEDI) Cloud procurement, which
`is “directed to the long-term provision of enterprise-
`wide cloud computing services to [DoD].” Pet. App. 2a.
`The procurement contemplated the award of a single
`indefinite-quantity contract—called a “task order con-
`tract” (if for services) or “delivery order contract” (if for
`property). See 10 U.S.C. 2304d. Such a contract “does
`not procure or specify a firm quantity of services [or
`property] (other than a minimum or maximum quan-
`tity),” but instead “provides for the issuance of orders
`for the performance of tasks [or the delivery of prop-
`erty] during the period of the contract.” 10 U.S.C.
`2304d(1); see 10 U.S.C. 2304d(2).
`Congress has expressed a preference, though not a
`requirement, that task order and delivery order con-
`tracts be awarded to multiple sources, rather than a sin-
`gle source. For example, Congress required the issuance
`of regulations that “establish a preference for award-
`ing, to the maximum extent practicable, multiple task
`or delivery order contracts.” 10 U.S.C. 2304a(d)(4)(A).
`But Congress also required any such regulations to “es-
`tablish criteria for determining when award of multiple
`
`
`
`
`3
`
`task or delivery order contracts would not be in the best
`interest of the Federal Government.” 10 U.S.C.
`2304a(d)(4)(B). Accordingly, the Federal Acquisition
`Regulation sets forth a list of six circumstances when
`agencies “must not use the multiple award approach”
`when awarding indefinite-quantity contracts. 48 C.F.R.
`16.504(c)(1)(ii)(B).
`Here, the contracting officer determined that three
`of those circumstances were present, and that the JEDI
`Cloud procurement should therefore follow the single-
`award approach. First, the contracting officer found
`that “based on [her] knowledge of the market, more
`favorable terms and conditions,
`including pricing,
`will be provided if a single award is made.” Pet. App.
`55a (brackets and citation omitted); see 48 C.F.R.
`16.504(c)(1)(ii)(B)(2); C.A. App. 100,457-100,459. She
`explained that “a vendor is more likely to offer favora-
`ble price terms and make the initial investment to serve
`DoD’s needs if it can be assured it will recoup its invest-
`ment through packaging prices for classified and un-
`classified services.” Pet. App. 55a.
`Second, the contracting officer found that “the ex-
`pected cost of administration of multiple contracts out-
`weighs the expected benefits of making multiple
`awards.” Pet. App. 55a (brackets and citation omitted);
`see 48 C.F.R. 16.504(c)(1)(ii)(B)(3); C.A. App. 100,459-
`100,461. She “observed that administering multiple
`contracts is costlier and less efficient,” Pet. App. 55a,
`and estimated that over a potential ten-year contract
`award, a single-award approach would save more than
`$500 million in administrative costs, C.A. App. 100,460.
`She also observed based on historical averages that “a
`task order under [a] single award [approach] takes 30
`days to place,” but “a task order under [a] multiple
`
`
`
`
`
`4
`
`award [approach] takes 100 days”—a difference that
`would result in cumulative delays of more than 770
`years over the estimated 4032 task orders called for by
`the solicitation. Ibid.
`Third, the contracting officer found that “multiple
`awards would not be in the best interests of the Govern-
`ment.” Pet. App. 55a (brackets and citation omitted);
`see 48 C.F.R. 16.504(c)(1)(ii)(B)(6); C.A. App. 100,461-
`100,464. She explained that “[b]ased on the current
`state of technology,” awarding multiple contracts would
`(i) “increase security risks”; (ii) “create impediments to
`operationalizing data through data analytics, machine
`learning,” and “artificial intelligence”; and (iii) “intro-
`duce technical complexity in a way that both jeopardizes
`successful implementation and increases costs.” Pet.
`App. 55a-56a (citation omitted). The deputy director of
`the Defense Digital Service signed the contracting of-
`ficer’s memorandum, “[a]ttesting to the technical find-
`ings that support the [contracting officer’s] analysis”
`that multiple awards would not be in the government’s
`best interests. C.A. App. 100,464.
`Congress has further directed that agencies gener-
`ally may not award single-source task or delivery order
`contracts estimated to exceed a certain dollar threshold
`($100 million in the statute, inflation-adjusted to $112
`million here) “unless the head of the agency” makes at
`least one of four specified determinations “in writing.”
`10 U.S.C. 2304a(d)(3)(A) (Supp. I 2019)*; see 41 U.S.C.
`
`
`* Until recently, the four determinations in Section 2304a(d)(3)
`were contained in Subparagraphs (A) through (D). See 10 U.S.C.
`2304a(d)(3) (2018). Effective December 20, 2019, Congress redesig-
`nated those Subparagraphs as Clauses (i) through (iv) in Subpara-
`graph (A). See National Defense Authorization Act for Fiscal Year
`2020, Pub. L. No. 116-92, Div. A, Tit. VIII, § 816, 133 Stat. 1487. For
`
`
`
`
`5
`
`1908 (requiring inflation adjustment). Here, the Under
`Secretary, exercising the delegated authority of the
`head of the agency, made a written determination that
`a single-source contract was justified for the JEDI
`Cloud procurement because “the contract provides only
`for firm, fixed price task orders or delivery orders for
`* * * services for which prices are established in the
`contract for the specific tasks to be performed.” 10
`U.S.C. 2304a(d)(3)(A)(ii)(II); see Pet. App. 56a-57a.
`b. In addition to providing for the award of a single
`contract, the JEDI Cloud solicitation included seven
`“gate criteria” that an offeror had to meet at the thresh-
`old. Pet. App. 61a. One of those has been called “Gate
`1.2.” Id. at 2a. Among other things, Gate 1.2 required
`an offeror to demonstrate that it had “at least three ex-
`isting physical commercial cloud offering data centers
`within the United States, each separated from the oth-
`ers by at least 150 miles,” and each supporting certain
`commercial cloud offerings that had been qualified as
`meeting certain security requirements “at the time of
`proposal.” Ibid. Those requirements represented
`DoD’s longstanding “minimum security level for pro-
`cessing or storing the Department’s least sensitive in-
`formation.” Id. at 3a. The deputy director explained in
`a memorandum the agency’s view that “if an offeror
`could not satisfy th[os]e security requirements * * * at
`the time of proposal, that offeror would not be able to
`satisfy the more stringent security requirements the of-
`feror would be required to meet shortly after award.”
`Id. at 22a-23a. It is undisputed that petitioner did not
`satisfy the minimum security requirements set forth in
`
`convenience, this brief uses the current designations, as does the
`court of appeals’ opinion (but not the opinion of the Court of Federal
`Claims that predated the redesignation).
`
`
`
`
`6
`
`Gate 1.2 “at the time of proposal.” Id. at 2a; see id. at
`3a, 42a.
`c. During the solicitation process, potential conflicts
`of interest on the part of three former agency employ-
`ees came to light, all of them related to past or future
`employment with one of the offerors for the JEDI Cloud
`contract, Amazon Web Services (Amazon). See Pet.
`App. 11a. Under the applicable regulations, contracting
`officers must determine whether a “reported violation
`or possible violation [of certain federal conflict-of-
`interest statutes] has any impact on the pending award
`or selection of the contractor.” 48 C.F.R. 3.104-7(a).
`The regulations recognize that the “exercise of common
`sense, good judgment, and sound discretion is required
`in both the decision on whether a significant potential
`conflict exists and, if it does, the development of an ap-
`propriate means for resolving it.” 48 C.F.R. 9.505; see
`48 C.F.R. 1.602-2 and (b) (providing that “contracting
`officers should be allowed wide latitude to exercise busi-
`ness judgment” in “ensuring performance of all neces-
`sary actions for effective contracting,” including “[e]n-
`sur[ing] that contractors receive impartial, fair, and eq-
`uitable treatment”).
`The first employee, Deap Ubhi, worked for DoD
`from August 2016 to November 2017, but both before
`and after that tenure worked for Amazon. See Pet. App.
`28a. The contracting officer found that Ubhi “was in-
`volved in marketing research activities for the JEDI
`Cloud procurement and that he participated in drafting
`and editing some of the first documents shaping the
`procurement.” Ibid. In October 2017, Ubhi recused
`himself from participation in the JEDI Cloud procure-
`ment, but not before he had begun to negotiate his
`
`
`
`
`
`7
`
`return to Amazon. Id. at 28a-29a. The contracting of-
`ficer therefore determined that Ubhi “had violated
`[48 C.F.R.] 3.101-1 and possibly other statutory and
`regulatory provisions governing conflicts of interest, in-
`cluding 18 U.S.C. § 208.” Id. at 29a.
`The contracting officer determined, however, that
`Ubhi’s “conflict of interest had not tainted the JEDI
`Cloud procurement,” notwithstanding his “troubling”
`and “ ‘disconcerting’ ” behavior. Pet. App. 29a (citation
`omitted). The contracting officer explained that “the
`restrictions on [Ubhi’s] involvement based on his prior
`employment had expired by the time he began working
`on the procurement” and that Ubhi had not “shared any
`information with the team at [Amazon] that was work-
`ing on the JEDI Cloud procurement.” Id. at 28a-29a.
`When he returned to Amazon, Ubhi “did not work on
`the JEDI Cloud proposal team or in [Amazon’s] Federal
`Business Sector or its DoD Programs section.” Id. at
`29a. The contracting officer also explained that Ubhi’s
`“participation in the procurement was limited,” ibid.;
`that his “period of work on the preliminary planning
`stage of the JEDI Cloud procurement did not introduce
`bias in favor of [Amazon],” id. at 30a; and that he
`“lacked the technical expertise to substantively influ-
`ence the JEDI Cloud procurement,” id. at 78a. Finally,
`she explained that “most importantly, all the key deci-
`sions for the JEDI Cloud procurement, [including]
`whether to award one or multiple contracts, were made
`well after Mr. Ubhi recused himself, after being vetted
`by numerous DoD personnel to ensure that the JEDI
`Cloud [solicitation] truly reflects DoD’s requirement.”
`Ibid. (citation omitted).
`The second employee, Anthony DeMartino, had been
`a consultant for Amazon before joining DoD and “was
`
`
`
`
`
`8
`
`prohibited by applicable ethics rules from participating
`in matters involving [Amazon] throughout his tenure at
`the Department.” Pet. App. 35a. DeMartino partici-
`pated in “ministerial/administrative actions (such as
`scheduling meetings, editing/drafting public relations,
`etc.),” which a DoD ethics office determined “did not
`constitute participating in the JEDI Cloud acquisition
`itself.” Ibid. (brackets omitted). The contracting of-
`ficer found that DeMartino’s “involvement in the JEDI
`Cloud procurement” was “ ‘ministerial and perfunc-
`tory,’ ” that he had “ ‘provided no input into the JEDI
`Cloud acquisition documents,’ ” and that his “limited
`role” “ ‘did not negatively impact the integrity’ of the
`procurement.” Ibid.
`The third employee, Victor Gavin, was offered a job
`with Amazon in March 2018, which he eventually ac-
`cepted. Pet. App. 37a. In April 2018, however, Gavin
`“attended a meeting at which the attendees discussed
`the Draft Acquisition Strategy for the JEDI Cloud pro-
`curement.” Ibid. The contracting officer recalled that
`at the meeting, Gavin “did not advocate for any partic-
`ular vendor but instead advocated for a multiple-award
`approach.” Ibid. The contracting officer found that
`Gavin violated 48 C.F.R. 3.101 and possibly 18 U.S.C.
`208, but also found that his “involvement in the JEDI
`Cloud project did not taint the procurement.” Pet. App.
`37a. The contracting officer explained that “Gavin had
`limited access to the Draft Acquisition Strategy, did not
`furnish any input to that document, did not introduce
`bias into any of the meetings that he attended, and did
`not disclose any competitively useful information to
`[Amazon].” Ibid.
`d. Petitioner filed a pre-bid protest with GAO. See
`Pet. App. 3a. As relevant here, petitioner challenged
`
`
`
`
`
`9
`
`DoD’s decision to award a single-source contract, and
`alleged that the employees with conflicts of interest im-
`properly tainted the process because they “influenced
`the procurement by affecting the decision to use a sin-
`gle award and the selection of the gate criteria.” Id. at
`27a.
`GAO denied petitioner’s protest. 2018 CPD ¶ 391.
`As relevant here, GAO determined that DoD’s single-
`award approach complied with 10 U.S.C. 2304a(d) and
`48 C.F.R. 16.504. 2018 CPD ¶ 391, at *6-*9. GAO also
`determined that the agency “clearly articulated a rea-
`sonable basis for the [Gate] 1.2” security criteria, and
`that petitioner’s “complaints regarding [those] criteria
`are without merit.” Id. at *11. And GAO rejected peti-
`tioner’s challenges to the contracting officer’s determi-
`nations regarding the alleged conflicts of interest. Id.
`at *12-*13.
`2. Petitioner filed a complaint in the Court of Fed-
`eral Claims, which granted judgment in favor of the
`government on the administrative record. Pet. App.
`40a-120a.
`a. The Court of Federal Claims found the contract-
`ing officer’s determination that the applicable regula-
`tions required a single-source JEDI contract to be
`“completely reasonable.” Pet. App. 91a; see id. at 89a-
`91a. But the court concluded that DoD erred in finding
`that “the contract provides only for firm, fixed price
`task orders” for “services for which prices are estab-
`lished in the contract for the specific tasks to be per-
`formed,” 10 U.S.C. 2304a(d)(3)(A)(ii) and (II), as re-
`quired to award a single-source contract exceeding $112
`million. See Pet. App. 93a-94a. Although the court
`acknowledged that the solicitation “provide[d] only for
`firm, fixed price task orders,” the court explained that
`
`
`
`
`
`10
`
`the solicitation also contained a “technology refresh
`provision,” under which the awardee could potentially
`be required to provide “services not contemplated at
`the time of initial award * * * at a price not ‘higher than
`the price that is publicly-available in the commercial
`marketplace.’ ” Id. at 93a (citation omitted). That pro-
`vision, the court held, “appears to be at odds with” Sec-
`tion 2304a. Id. at 95a.
`The Court of Federal Claims nevertheless found that
`petitioner was not prejudiced by the decision to award
`a single-source rather than a multiple-source contract,
`because petitioner concededly could not satisfy the min-
`imum security requirements in Gate 1.2. Pet. App. 96a-
`98a. The court explained that those requirements and
`the attendant security concerns were “explicit” in Gate
`1.2, and that it had “no reason to doubt” the conclusion
`that those “security requirements are the minimum
`that will be necessary to perform even the least sensi-
`tive aspects of the JEDI Cloud project.” Id. at 97a.
`Based on its review of the “many” statements and ac-
`quisition documents in the record, the court found that
`“although this criteria presumes a single award, the
`only logical conclusion is that, if multiple awards were
`made, the security concerns would ratchet up, not
`down.” Ibid. Accordingly, the court concluded that pe-
`titioner was “not prejudiced by the decision to make a
`single award” because it “would not stand a better
`chance of being awarded this contract if the agency de-
`termined that the procurement must be changed to mul-
`tiple award.” Ibid.; see id. at 106a (concluding that “be-
`cause [petitioner] could not meet the agency’s properly
`imposed security requirements,” the court could “confi-
`dently” say that petitioner would not “have had a better
`
`
`
`
`
`11
`
`chance of competing for” a hypothetical multiple-source
`award).
`b. The Court of Federal Claims also found the con-
`tracting officer’s determination that the alleged con-
`flicts of interest “did not taint the process” to be
`“[r]ational and [c]onsistent” with the applicable regula-
`tions. Pet. App. 107a; see id. at 107a-119a. The court
`acknowledged that the “allegations are certainly suffi-
`cient to raise eyebrows,” and explained that it would be
`“fully prepared to enforce the agency’s obligation to
`redo part or all of this procurement if the [contracting
`officer’s] conclusion that there was no impact was un-
`reasonable in any respect.” Id. at 107a-108a. But “after
`a detailed examination of the record,” the court deter-
`mined that the contracting officer “understood the legal
`and factual questions and considered the relevant evi-
`dence,” and that her “work was thorough and even-
`handed.” Id. at 108a; see id. at 108a-119a (examining in
`detail each of the contracting officer’s conclusions about
`alleged individual and organizational conflicts, includ-
`ing six different conclusions about Ubhi). In contrast,
`the court explained that petitioner’s challenge to the
`contracting officer’s “thorough and even-handed” find-
`ings was based on “cherry pick[ing] * * * a few sugges-
`tive sound bites” from the record. Id. at 108a.
`3. The court of appeals affirmed. Pet. App. 1a-39a.
`a. The court of appeals agreed with the Court of
`Federal Claims that the JEDI Cloud procurement did
`not “provide[] only for firm, fixed price task orders or
`delivery orders for services for which prices are estab-
`lished in the contract” for the specific tasks to be per-
`formed, and that a single-source contract was therefore
`unwarranted. Pet. App. 14a (citation and ellipsis omit-
`
`
`
`
`
`12
`
`ted). But the court of appeals also agreed that peti-
`tioner was not prejudiced by that error. See id. at 16a-
`18a. Specifically, the court determined that the Court
`of Federal Claims was not “clearly erroneous” in mak-
`ing the factual finding that DoD “would have included
`Gate 1.2 even if it had modified the solicitation to allow
`for multiple awards, and that [petitioner] therefore
`would not have had a substantial chance of securing the
`contract.” Id. at 18a.
`The court of appeals rejected petitioner’s contention
`that the very making of such a finding was contrary to
`SEC v. Chenery Corp., 318 U.S. 80 (1943), which held
`that “judicial review of agency action is limited to ‘the
`grounds that the agency invoked when it took the ac-
`tion.’ ” Department of Homeland Security v. Regents of
`the University of California, 140 S. Ct. 1891, 1907
`(2020) (citation omitted). The court explained that
`Chenery “does not invariably require a remand to the
`agency whenever a court holds that the agency’s action
`was based on legally improper grounds.” Pet. App. 16a.
`Instead, “principles of harmless error apply to judicial
`review of agency action,” and a court may therefore af-
`firm agency action “so long as it is clear that the agency
`would have reached the same decision if it had been
`aware that the ground it invoked was legally unavaila-
`ble, or if the decision does not depend on making a find-
`ing of fact not previously made by the agency.” Ibid.
`Applying those principles here, the court of appeals
`observed that “based on the evidence in the administra-
`tive record,” the Court of Federal Claims found that
`DoD “would have stuck with Gate 1.2 even if it had been
`required to conduct the procurement on a multiple-
`award basis,” in particular because “ ‘if multiple awards
`were made, the security concerns would ratchet up, not
`
`
`
`
`
`13
`
`down.’ ” Pet. App. 16a-17a (citation omitted). The court
`of appeals explained that “[i]n light of the Claims
`Court’s careful consideration of the record evidence,”
`its “conclusion that [DoD] would have included Gate 1.2
`even if it had modified the solicitation to allow for mul-
`tiple awards, and that [petitioner] therefore would not
`have had a substantial chance of securing the contract,
`is not clearly erroneous.” Id. at 17a-18a.
`b. The court of appeals also agreed with the Court of
`Federal Claims’ conclusion “that the contracting of-
`ficer’s investigation [of the alleged conflicts of interest]
`was thorough and her ‘no effect’ determination was rea-
`sonable.” Pet. App. 24a; see id. at 24a-39a. The court
`of appeals rejected petitioner’s suggestion that United
`States v. Mississippi Valley Generating Co., 364 U.S.
`520 (1961), “sets forth a per se rule that conflicts of in-
`terest that violate the federal criminal conflict-of-
`interest statute invalidate any government contracts to
`which the conflicts relate.” Pet. App. 25a (citation omit-
`ted). Instead, the court explained that Mississippi Val-
`ley “is best read as providing that conflicts of interest
`invalidate government contracts only if the conflicts
`materially affect the contracts.” Ibid. The court also
`explained that a contracting officer’s determination
`about whether conflicts materially affected a solicita-
`tion “will be upheld unless it is ‘arbitrary, capricious, or
`otherwise contrary to law.’ ” Id. at 27a (citation omit-
`ted).
`The court of appeals ultimately “agree[d] with the
`Claims Court that the conflict of interest problems”
`identified by petitioner “had no effect on the JEDI
`Cloud solicitation.” Pet. App. 27a. The court of appeals
`reviewed the relevant findings with respect to the three
`
`
`
`
`
`14
`
`individuals with conflicts, see id. at 28a-39a, and re-
`jected each of petitioner’s challenges. For example,
`with respect to Ubhi, the court found “meritless” peti-
`tioner’s contention that the contracting officer “
`‘failed
`to consider an important aspect of the problem’ ” by not
`waiting for an inspector-general investigation to con-
`clude, id. at 30a-31a; found “facile” petitioner’s asser-
`tion that the Court of Federal Claims “upheld the con-
`tracting officer’s determination * * * on a ground dif-
`ferent from that adopted by the contracting officer,” id.
`at 32a; and found “no force to [petitioner’s] argument”
`that the “no-impact determination ‘runs counter to the
`evidence before the agency,’ ” id. at 33a. The court of
`appeals reached similar conclusions on petitioner’s chal-
`lenges to the findings with respect to DeMartino and
`Gavin. See id. at 35a-39a.
`ARGUMENT
`Petitioner contends (Pet. 13-34) that the court of ap-
`peals erred in affirming the Court of Federal Claims’
`holdings that (1) the agency’s decision to award a single-
`source contract did not prejudice petitioner, given that
`petitioner could not qualify for a contract under Gate
`1.2 anyway, and (2) three DoD employees’ conflicts of
`interest in potential violation of 18 U.S.C. 208 did not
`materially affect the procurement. Those rulings are
`correct and do not conflict with any decision of this
`Court or another court of appeals. Further review is
`unwarranted.
`1. a. Assuming for the sake of argument that the
`agency’s single-source solicitation violated 10 U.S.C.
`2304a(d)(3), but see pp. 23-25, infra, the court of appeals
`correctly determined that the Court of Federal Claims’
`no-prejudice finding was not clearly erroneous.
`
`
`
`
`
`15
`
`Congress has directed that “[i]n any action” by “an
`interested party objecting to a solicitation by a Federal
`agency for bids or proposals for a proposed contract,”
`“courts shall review the agency’s decision pursuant to
`the standards set forth in sect
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
