No. 20-1057
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`ORACLE AMERICA, INC.,
`
`Petitioner,
`
`v.
`UNITED STATES AND AMAZON WEB SERVICES, INC.,
`Respondents.
`
`
`
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Federal Circuit
`
`
`BRIEF IN OPPOSITION
`
`
`MARK A. PERRY
`
`DANIEL R. FORMAN
` Counsel of Record
`KELLAM M. CONOVER
`ROBERT J. SNECKENBERG
`CROWELL & MORING LLP
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`1001 Pennsylvania Avenue, N.W.
`Washington, D.C. 20036
`Washington, D.C. 20004
`(202) 955-8500
`(202) 624-2504
`MPerry@gibsondunn.com
`
`Counsel for Respondent
`Amazon Web Services, Inc.
`
`
`
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`ORACLE AMERICA, INC.,
`
`Petitioner,
`
`v.
`UNITED STATES AND AMAZON WEB SERVICES, INC.,
`Respondents.
`
`
`
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Federal Circuit
`
`
`BRIEF IN OPPOSITION
`
`
`MARK A. PERRY
`
`DANIEL R. FORMAN
` Counsel of Record
`KELLAM M. CONOVER
`ROBERT J. SNECKENBERG
`CROWELL & MORING LLP
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`1001 Pennsylvania Avenue, N.W.
`Washington, D.C. 20036
`Washington, D.C. 20004
`(202) 955-8500
`(202) 624-2504
`MPerry@gibsondunn.com
`
`Counsel for Respondent
`Amazon Web Services, Inc.
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`1. Whether the court of appeals correctly con-
`cluded that, because petitioner could not meet the gov-
`ernment’s requirements for participating in a procure-
`ment, petitioner could not challenge the structure of
`that procurement.
`2. Whether the court of appeals correctly con-
`cluded that the procurement was not prejudiced by
`any of the personal conflicts of interest alleged by pe-
`titioner.
`
`
`
`
`
`
`
`
`
`
`ii
`
`RULE 29.6 STATEMENT
`Respondent Amazon Web Services, Inc. states
`that Amazon.com, Inc.
`is respondent’s parent
`corporation and indirectly owns 100% of respondent’s
`stock.
`
`
`
`
`
`
`
`
`iii
`
`ADDITIONAL RELATED PROCEEDINGS
`In addition to the proceedings identified in the
`petition, the following proceedings are directly related
`to this case within the meaning of Rule 14.1(b)(iii):
`
` •
`
` Amazon Web Servs., Inc. v. United States, No.
`19-cv-1796 (Fed. Cl. filed Nov. 22, 2019)
`• Oracle Am., Inc., B-416657 et al., 2018 CPD
`¶ 391 (Comp. Gen. Nov. 14, 2018)
`
`
`
`
`
`iv
`
`TABLE OF CONTENTS
`
`Page
`BRIEF IN OPPOSITION ............................................ 1
`
`STATEMENT .............................................................. 2
`
`REASONS FOR DENYING THE PETITION ............ 6
`
`I. The Alleged Personal Conflicts Are
`Intensely Fact-Bound. .................................... 7
`
`II. The Alleged Personal Conflicts Are
`Not Outcome-Determinative. ......................... 8
`
`CONCLUSION .......................................................... 11
`
`
`
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Case
`
`Cooter & Gell v. Hartmarx Corp.,
`496 U.S. 384 (1990) ................................................ 8
`
`Other Authority
`
`Inspector General, U.S. Dep’t of Defense,
`Report on the Joint Enterprise Defense
`Infrastructure (JEDI) Cloud Procurement,
`No. DODIG-2020-079 (Apr. 2020) ..................... 6, 8
`
`
`
`
`
`
`
`
`
`
`
`BRIEF IN OPPOSITION
`
`Petitioner Oracle America, Inc. (“Oracle”), re-
`spondent Amazon Web Services, Inc. (“AWS”), and
`two other companies submitted proposals in response
`to the Department of Defense’s (“DoD’s”) $10 billion
`Joint Enterprise Defense Infrastructure (“JEDI”) pro-
`curement to provide cloud computing services to the
`armed forces. Oracle also filed the pre-award bid pro-
`test that is the subject of this petition and challenges
`the structure of the procurement and asserts conflict-
`of-interest allegations. While these challenges were
`pending, DoD disqualified Oracle for failure to satisfy
`DoD’s minimum requirements, described as “gate cri-
`teria.”
`In this Court, Oracle raises two distinct objections
`to the procurement: First, Oracle contends that the
`government was required to structure the procure-
`ment to allow multiple vendors rather than a single
`vendor. Second, Oracle contends that the procure-
`ment was tainted by the involvement of three govern-
`ment officials with alleged conflicts of interest.
`On the first question presented, AWS took no po-
`sition in the court of appeals and takes no position in
`this Court. On the second question presented, it is
`important to distinguish between personal conflicts of
`interest involving government employees and organi-
`zational conflicts of interest involving companies.
`Oracle’s petition addresses only the former: namely,
`that former DoD employees allegedly had conflicts of
`interest while employed at DoD. As explained below,
`this case is a poor vehicle for addressing those allega-
`tions because they are highly fact-bound and are not
`outcome-determinative in this case. Although Oracle
`
`
`
`
`
`2
`
`previously argued that AWS also had an organiza-
`tional conflict of interest, that argument was rejected
`below as unfounded and is not included in the peti-
`tion. Because Oracle has abandoned that claim, AWS
`does not address it further herein.
`Oracle’s petition should be denied.*
`
`STATEMENT
`Oracle was eliminated from the JEDI competition
`because it failed to meet DoD’s minimum require-
`ments, known as gate criteria. After Oracle initially
`filed with the Government Accountability Office
`(“GAO”) a pre-award protest challenging, inter alia,
`DoD’s minimum requirements, the GAO denied the
`pre-award protest. Pet. App. 3a. Oracle then filed a
`complaint in the Court of Federal Claims, which
`granted judgment on the administrative record to the
`government. Pet. App. 40a. The court of appeals af-
`firmed. Pet. App. 1a.
`1. The JEDI Cloud procurement is “directed to
`the long-term provision of enterprise-wide cloud com-
`puting services to [DoD].” Pet. App. 2a. The JEDI
`solicitation sought a single contractor to fulfill DoD’s
`cloud requirements. Ibid. Prospective bidders were
`required to satisfy seven threshold gate criteria: If an
`offeror passed all seven gates, it would be eligible for
`further evaluation; if an offeror failed even one gate,
`
`
`* AWS is currently protesting the final award decision at the
`Court of Federal Claims, on the grounds that DoD’s technical
`evaluation of proposals was flawed and that the Trump Admin-
`istration improperly interfered in the award. This petition,
`which arises from Oracle’s pre-award protest, is unrelated to
`AWS’s post-award protest.
`
`
`
`
`
`3
`
`however, it would be ineligible for further evaluation
`or award. Pet. App. 60a–61a.
`2. Oracle filed a pre-award challenge with the
`GAO, arguing that DoD’s justifications for awarding
`the JEDI procurement to a single contractor were in-
`sufficient under applicable statute and regulation,
`Pet. App. 3a, challenging certain of the solicitation’s
`threshold gate criteria, ibid., and claiming that the
`procurement was tainted by alleged conflicts of inter-
`est, Pet. App. 27a.
`The GAO rejected Oracle’s protest. The GAO up-
`held the single-award structure and each of the chal-
`lenged gate criteria, and held that the alleged per-
`sonal conflicts could not have tainted the procurement
`given that the solicitation reflected DoD’s actual
`needs. See C.A.J.A. 105,900–105,918.
`3. Oracle then filed a complaint in the Court of
`Federal Claims. Pet. App. 3a. While that case was
`pending, DoD excluded Oracle from the procurement
`for its failure to satisfy multiple gate criteria: Specif-
`ically, DoD found that Oracle’s proposal failed to sat-
`isfy Gate 1.1, and Oracle conceded that it failed to sat-
`isfy Gate 1.2 “at the time of proposal.” Pet. App. 2a;
`see Pet. App. 3a, 42a. DoD also completed an exhaus-
`tive investigation of potential conflicts of interest,
`finding none that could have tainted the procurement.
`Pet. App. 24a.
`a. Oracle’s principal challenge was to the single-
`award structure and Gates 1.1 and 1.2. Pet. App. 41a,
`98a. Oracle’s conflicts challenges concerned three
`DoD employees. The contracting officer (“CO”) had
`found that none of these employees “tainted the JEDI
`Cloud procurement.” Pet. App. 29a; see also Pet. App.
`37a.
`
`
`
`
`
`4
`
`The first DoD employee, Deap Ubhi, “was involved
`in marketing research activities for the JEDI Cloud
`procurement” and “participated in drafting and edit-
`ing some of the first documents shaping the procure-
`ment.” Pet. App. 28a. Oracle alleged that, in October
`2017, Mr. Ubhi did not recuse himself from participat-
`ing in the procurement until after beginning to nego-
`tiate his return to work at one of the offerors in the
`procurement. Pet. App. 28a–29a. The CO found, how-
`ever, that Mr. Ubhi “had not tainted the JEDI Cloud
`procurement” because his “participation in the pro-
`curement was limited,” Pet. App. 29a, he “lacked the
`technical expertise to substantively influence the
`JEDI Cloud procurement,” and, “‘most importantly,
`all the key decisions for the JEDI Cloud procurement,
`[including] whether to award one or multiple con-
`tracts, were made well after [he] recused himself,’”
`Pet. App. 78a.
`The second DoD employee, Anthony DeMartino,
`had limited involvement with the JEDI procurement,
`participating only in “ministerial/administrative ac-
`tions (such as scheduling meetings, editing/drafting
`public relations,[ ] etc.).” Pet. App. 35a (alteration in
`original). Oracle alleged that Mr. DeMartino had a
`conflict of interest because he had been a consultant
`for one of the offerors in the JEDI procurement. Ibid.
`But the CO found that he “‘did not negatively impact
`the integrity’ of the procurement” because he per-
`formed only “‘ministerial and perfunctory’” functions
`and had a “limited role,” in which he “‘provided no in-
`put into the JEDI Cloud acquisition documents.’”
`Ibid.
`The third DoD employee, Victor Gavin, attended
`one high-level meeting of the group “which was plan-
`ning the JEDI Cloud procurement, to share the Navy’s
`
`
`
`
`
`5
`
`experience with cloud services,” and one other meet-
`ing in April 2018 “at which the attendees discussed
`the Draft Acquisition Strategy for the JEDI Cloud pro-
`curement.” Pet. App. 37a. Oracle alleged that Mr.
`Gavin attended the second meeting after receiving a
`job offer from an offeror in the JEDI procurement.
`Ibid. The CO found, however, that Mr. Gavin “did not
`taint the [JEDI Cloud] procurement” because he “had
`limited access to the Draft Acquisition Strategy, did
`not furnish any input to that document, [and] did not
`introduce bias into any of the meetings that he at-
`tended.” Ibid.
`b. The Court of Federal Claims denied Oracle’s
`protest and granted judgment in favor of the govern-
`ment on the administrative record. Pet. App. 42a.
`After upholding Gate 1.2, the court found that because
`Oracle failed to demonstrate that Gate 1.2 would have
`been different under a multiple-award contract, any
`error in DoD’s single-award determination was harm-
`less. Pet. App. 97a.
`The Court of Federal Claims also rejected each of
`Oracle’s conflicts challenges. Pet. App. 107a–120a.
`As to the three former DoD employees, the court found
`that their involvement did not “taint” the overall pro-
`curement, detailing its fact findings with respect to
`each employee. See Pet. App. 110a–116a.
`4. Oracle appealed, and the Federal Circuit af-
`firmed the Court of Federal Claims’ rejection of Ora-
`cle’s allegations. Pet. App. 1a–39a. The court of ap-
`peals held that the Court of Federal Claims was not
`“clearly erroneous” in finding the single-award deter-
`mination harmless error. Pet. App. 16a–18a. The
`court of appeals further reviewed the record and
`“agree[d] with the Claims Court that” each alleged
`personal conflict of interest “had no effect on the JEDI
`
`
`
`
`
`6
`
`Cloud solicitation.” Pet. App. 27a; see also Pet. App.
`28a–39a.
`5. Oracle subsequently filed a petition for a writ
`of certiorari in this Court seeking review of the court
`of appeals’ rulings that (1) Oracle’s conceded failure of
`Gate 1.2 precluded it from challenging the single-
`award structure of the JEDI procurement and (2) no
`alleged personal conflict of interest prejudiced Oracle
`or otherwise tainted the procurement. Oracle did not
`raise any allegations of organizational conflicts of in-
`terest—which had been found meritless by the con-
`tracting officer
`(see C.A.J.A. 158,709–158,716,
`158,747–158,748), the Court of Federal Claims (see
`Pet. App. 117a), and the Federal Circuit (see Pet. App.
`35a, 39a), and had been separately rejected following
`an investigation by the Office of the Inspector Gen-
`eral, see Inspector General, U.S. Dep’t of Defense, Re-
`port on the Joint Enterprise Defense Infrastructure
`(JEDI) Cloud Procurement, No. DODIG-2020-079
`(“OIG Report”), at 128–168, 201–208 (Apr. 2020).
`
`REASONS FOR DENYING THE PETITION
`As noted at the outset, AWS takes no position on
`the first question presented—i.e., whether the pro-
`curement should have been structured differently.
`With regard to the second question presented—i.e.,
`whether the court of appeals correctly concluded the
`procurement was not prejudiced by the personal con-
`flicts of interest of three DoD employees—this case is
`a poor vehicle for deciding that issue. The alleged per-
`sonal conflicts of interest (which concern the actions
`of DoD employees, not the actions of AWS) are highly
`fact-bound and had no effect on Oracle’s exclusion
`from the competitive range. Indeed, the DoD, the
`GAO, the Court of Federal Claims, and the Federal
`
`
`
`
`
`7
`
`Circuit each correctly concluded the alleged personal
`conflicts could not have affected the procurement.
`Accordingly, the petition for a writ of certiorari should
`be denied.
`I. THE ALLEGED PERSONAL CONFLICTS ARE
`INTENSELY FACT-BOUND.
`Reviewing the alleged personal conflicts in this
`case would not provide helpful guidance in other
`cases. Even Oracle acknowledges that, under the
`proper inquiry into the impact of an alleged personal
`conflict of interest, a court may need to engage in a
`“materiality inquiry” “to decide whether a contract
`has been tainted by” the conflict. Pet. 29. To call such
`an inquiry fact-intensive—and hence of little value in
`other cases—is an understatement.
`Consider the CO’s inquiry in the first instance.
`The CO interviewed eight government officials and re-
`viewed thousands of pages of emails, Slack messages,
`proposal materials, and affidavits. C.A.J.A. 158,704–
`158,707. On the basis of this extensive inquiry, the
`CO found that while Mr. Ubhi worked for DoD, his
`“participation in the procurement was limited,”
`Pet. App. 29a, that he “lacked the technical expertise
`to substantively influence the JEDI Cloud procure-
`ment,” and 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 [he] recused himself,’” Pet. App. 78a
`(emphasis added). The CO similarly found that Mr.
`DeMartino performed only a “‘ministerial and per-
`functory’” and “limited role,” in which he “‘provided no
`input into the JEDI Cloud acquisition documents’”
`and “‘did not negatively impact the integrity’ of the
`procurement,” Pet. App. 35a, and that Mr. Gavin “had
`limited access to the Draft Acquisition Strategy, did
`
`
`
`
`
`8
`
`not furnish any input to that document, [and] did not
`introduce bias into any of the meetings that he at-
`tended,” Pet. App. 37a.
`Or consider the 48 pages the Office of the Inspec-
`tor General (“OIG”) spent discussing the alleged con-
`flicts by these three former DoD employees. See OIG
`Report at 128–168, 201–208. OIG’s Report—which
`was based on an examination of “approximately 31.2
`gigabytes of e-mails and 1.05 gigabytes of relevant
`documents” and “more than 80 interviews,” id. at 4—
`concluded that “Mr. Ubhi’s brief early involvement in
`the JEDI Cloud Initiative was not substantial,” id. at
`8, that Mr. Gavin’s “comments about acquisition strat-
`egy” at a single JEDI meeting “did not affect the JEDI
`Cloud procurement or contract award,” id., and that
`Mr. DeMartino had only “a limited role related to
`JEDI that involved drafting cloud-related correspond-
`ence for the Deputy Secretary of Defense,” id. at 208.
`This sort of highly fact-bound inquiry “is unlikely
`to establish clear guidelines for lower courts; nor will
`it clarify the underlying principles of law” for other
`cases, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
`405 (1990), and, therefore, is not well-suited for this
`Court’s review, see Sup. Ct. R. 10 (“A petition for a writ
`of certiorari is rarely granted when the asserted error
`consists of erroneous factual findings”).
`II. THE ALLEGED PERSONAL CONFLICTS ARE NOT
`OUTCOME-DETERMINATIVE.
`This case is also a poor vehicle because the out-
`come of the procurement would have been the same—
`i.e., Oracle would have been excluded from the com-
`petitive range for its conceded failure to satisfy Gate
`1.2—regardless of whether its allegations related to
`
`
`
`
`
`9
`
`the personal conflicts of the DoD employees are accu-
`rate (they are not).
`Oracle makes no argument that either Mr. Gavin
`or Mr. DeMartino had any involvement in the devel-
`opment of Gate 1.2. And Oracle’s unsubstantiated as-
`sertion that Mr. Ubhi was involved in the develop-
`ment of Gate 1.2, see Reply Br. 10, is plainly wrong.
`As the United States correctly sets forth, Gate 1.2 was
`not added to the procurement until after March 2018,
`whereas Mr. Ubhi had left DoD in November 2017—
`several months before March 2018. Opp. 26 (citing
`Pet. App. 69a, 114a–115a; C.A.J.A. 106,083–106,084).
`Thus, none of the alleged personal conflicts could have
`possibly affected the development of Gate 1.2—mean-
`ing Oracle would have been excluded for failure to sat-
`isfy Gate 1.2 regardless of those conflicts.
`Oracle focuses primarily on whether Mr. “Ubhi’s
`conduct was [ ]material to the single-award structure
`of JEDI.” Pet. 33. But even if his conduct had been
`material to the single-award structure (it was not), it
`still would not have been material to the development
`of Gate 1.2. In any event, the CO, the GAO, the Court
`of Federal Claims, and the Federal Circuit all cor-
`rectly concluded that Mr. Ubhi’s involvement was, in
`fact, immaterial to the single-award structure. While
`Oracle suggests that the courts below applied only
`deferential review, that ignores that each court re-
`viewed the extensive record and expressly agreed with
`the CO’s conclusions.
`The Court of Federal Claims, for example, re-
`viewed “hundreds” of Slack messages and emails,
`Pet. App. 78a & n.10, and agreed that “the conclusion
`. . . that these individuals were bit players in the JEDI
`Cloud project, is correct,” Pet. App. 109a (emphasis
`added). That court explained that, because none of
`
`
`
`
`
`10
`
`the DoD employees at issue was among “the many
`DoD offices [sic] and officials who had a role in the
`structure of this procurement,” and because they did
`not “develop[ ] or sign[ ] off on [any] challenged com-
`ponents of this procurement,” their involvement “d[id]
`not taint the work of many other persons who had the
`real control of the direction of the JEDI Cloud project.”
`Pet. App. 109a.
`After conducting its own review of the record, the
`court of appeals likewise “agree[d] with the Claims
`Court that the conflict of interest problems of those
`three individuals had no effect on the JEDI Cloud so-
`licitation.” Pet. App. 27a (emphasis added). With re-
`spect to Mr. Ubhi, for example, the court of appeals
`explained that Oracle’s argument that the “no-impact
`determination ‘runs counter to the evidence before the
`agency’” has “no force,” as it “far outruns the limited
`evidence Oracle cites to support it.” Pet. App. 33a.
`Similarly, the court of appeals explained that none of
`the evidence Oracle cited with respect to Mr. DeMar-
`tino “establish[ed] that [he] was significantly involved
`in crafting the substance of the procurement.”
`Pet. App. 36a. The court of appeals further noted that
`“Mr. Gavin did not ‘assist in crafting the single award
`determinations or the technical substance of the eval-
`uation factors.’” Pet. App. 38a (quoting Pet. App.
`110a).
`In short, Oracle presents no recurring questions
`of importance regarding its accusations of personal
`conflicts of interest. (And, to reiterate, Oracle pre-
`sents no questions at all in this Court regarding al-
`leged organizational conflicts involving AWS.) Ra-
`ther, the issues raised in Oracle’s petition are fact-
`bound challenges that were thoroughly explored and
`resolved by the responsible officials, reviewed by the
`
`
`
`
`
`11
`
`lower courts, and correctly decided. Nothing that
`transpired with respect to those DoD employees war-
`rants this Court’s review.
`
`CONCLUSION
`
`The petition for a writ of certiorari should be de-
`nied.
`Respectfully submitted.
`
`
`MARK A. PERRY
`
`DANIEL R. FORMAN
` Counsel of Record
`KELLAM M. CONOVER
`ROBERT J. SNECKENBERG
`GIBSON, DUNN & CRUTCHER LLP
`CROWELL & MORING LLP
`1050 Connecticut Avenue, N.W.
`1001 Pennsylvania Avenue, N.W.
`Washington, D.C. 20036
`Washington, D.C. 20004
`(202) 624-2504
`(202) 955-8500
`MPerry@gibsondunn.com
`
`Counsel for Respondent
`Amazon Web Services, Inc.
`
`
`June 18, 2021
`
`
`
`
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