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
`
`
`
`SUPPLEMENTAL BRIEF FOR THE UNITED STATES
`
`
`
` BRIAN H. FLETCHER
`Acting Solicitor General
`Counsel of Record
`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
`
`
`
`SUPPLEMENTAL BRIEF FOR THE UNITED STATES
`
`
`
` BRIAN H. FLETCHER
`Acting Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Page
`Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) .............. 9, 10
`Alvarez v. Smith, 558 U.S. 87 (2009) ..................................... 6
`FMS Investment Corp. v. United States,
`138 Fed. Cl. 152 (2018) ......................................................... 7
`Galen Medical Associates, Inc. v. United States,
`369 F.3d 1324 (Fed. Cir. 2004) ............................................. 7
`Kingdomware Technologies, Inc. v. United States,
`136 S. Ct. 1969 (2016) ....................................................... 8, 9
`New York State Rifle & Pistol Association v. City of
`New York, 140 S. Ct. 1525 (2020) ...................................... 10
`Princeton University v. Schmid, 455 U.S. 100 (1982) ....... 10
`Square One Armoring Service, Inc. v. United States,
`123 Fed. Cl. 309 (2015) ......................................................... 6
`United States v. Munsingwear, Inc., 340 U.S. 36
`(1950) ................................................................................ 2, 10
`U.S. Bancorp Mortgage Co. v. Bonner Mall
`Partnership, 513 U.S. 18 (1994) ........................................ 10
`Veterans Contracting Group, Inc. v. United States,
`743 Fed. Appx. 439 (Fed. Cir. 2018) ................................... 6
`
`Constitution, statutes, and rule:
`U.S. Const. Art. III ........................................................... 6, 10
`10 U.S.C. 2304a(d)(3) ........................................................... 2, 3
`10 U.S.C. 2304a(d)(4)(A) ......................................................... 2
`10 U.S.C. 2304a(d)(4)(B) ......................................................... 3
`10 U.S.C. 2304d(1) ................................................................... 2
`10 U.S.C. 2304d(2) ................................................................... 2
`Sup. Ct. R. 15.8 ........................................................................ 1
`
`
`
`
`(I)
`
`
`
`II
`
`Page
`
`Miscellaneous:
`C. Todd Lopez, DOD News, DOD Aims for New
`Enterprise-Wide Cloud by 2022 (July 7, 2021),
`www.defense.gov/Explore/News/Article/Article/
`2684754/dod-aims-for-new-enterprise-wide-cloud-
`by-2022 ..................................................................... 4, 5, 8, 10
`General Services Administration, Presolicitation
`Contract Opportunity, Joint Warfighting Cloud
`Capability (JWCC) (July 6, 2021), sam.gov/opp/
`54ce941a25a14932809b5d83ac52a09a/view..................... 5, 9
`Stephen M. Shapiro et al., Supreme Court Practice
`(11th ed. 2019) ..................................................................... 11
`U.S. Dept. of Defense, Future of the Joint Enter-
`prise Defense Infrastructure Cloud Contract
`(July 6, 2021), www.defense.gov/Newsroom/
`Releases/Release/Article/2682992/future-of-the-
`joint-enterprise-defense-infrastructure-cloud-
`contract .............................................................3, 4, 5, 8, 9, 10
`
`
`
`
`
`
`
`
`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
`
`
`
`SUPPLEMENTAL BRIEF FOR THE UNITED STATES
`
`
`
`Pursuant to Rule 15.8 of the Rules of this Court, the
`government respectfully files this supplemental brief to
`alert the Court to important developments since the fil-
`ing of the government’s brief in opposition. This case
`involves a bid protest by petitioner to the procurement
`by the Department of Defense (DoD) of a single-award
`contract for the Joint Enterprise Defense Infrastruc-
`ture (JEDI) Cloud computing project. On July 6, 2021,
`DoD canceled the JEDI Cloud solicitation and initiated
`the termination of the contract that had been awarded
`to Microsoft (which was ultimately terminated on Sep-
`tember 1, 2021). In July, DoD also announced a new
`multiple-award procurement called Joint Warfighting
`Cloud Capability (JWCC).
`The cancellation of the JEDI Cloud solicitation has
`rendered this case moot, which is an additional and in-
`dependent reason that this Court should deny the peti-
`tion for a writ of certiorari. The petition asserts that
`
`(1)
`
`
`
`2
`
`the original single-award JEDI Cloud solicitation was
`unlawful and tainted by conflicts of interest, and thus
`seeks to unwind the solicitation and the award of the
`single-source contract to Microsoft. See Pet. i. In light
`of the cancellation of the JEDI Cloud solicitation and
`termination of the Microsoft contract, however, peti-
`tioner has effectively received all the relief it could have
`obtained in its bid protest (and more). And the JWCC
`solicitation is a new multiple-award procurement that
`will be conducted afresh in the coming months. Any
`challenges that petitioner may wish to make to the
`JWCC procurement should be the subject of a separate
`proceeding.
`Because the bid protest at issue in this case is moot,
`the lower court’s decision does not warrant further re-
`view. Nor is this an appropriate case in which to grant
`the petition and vacate the decision below under United
`States v. Munsingwear, Inc., 340 U.S. 36 (1950), be-
`cause the petition did not merit further review even be-
`fore the JEDI Cloud solicitation was canceled.
`1. The JEDI Cloud procurement was “directed to
`the long-term provision of enterprise-wide cloud com-
`puting services to [DoD].” Pet. App. 2a. The procure-
`ment contemplated the award of a single indefinite-
`quantity contract, which “does not procure or specify a
`firm quantity of services [or property] (other than a
`minimum or maximum quantity),” but instead “provides
`for the issuance of orders for the performance of tasks
`[or the delivery of property] during the period of the
`contract.” 10 U.S.C. 2304d(1); see 10 U.S.C. 2304d(2).
`Congress has expressed a preference that such con-
`tracts, especially those that exceed a certain dollar
`value, be awarded to multiple sources rather than to a
`single source, see 10 U.S.C. 2304a(d)(3) and (4)(A), but
`
`
`
`
`
`3
`
`also has required the issuance of regulations that “es-
`tablish criteria for determining when award of multiple
`task or delivery order contracts would not be in the best
`interest of the Federal Government,” 10 U.S.C.
`2304a(d)(4)(B), and provided specific exceptions to the
`general preference for multiple awards for large con-
`tracts, 10 U.S.C. 2304a(d)(3). DoD determined that
`multiple JEDI Cloud contracts would not be in the gov-
`ernment’s best interests and invoked one of the statu-
`tory exceptions for large indefinite-delivery contracts.
`See Br. in Opp. 3-5.
`Petitioner challenged that approach in a bid protest,
`and the Court of Federal Claims agreed that DoD had
`invoked an inapplicable statutory exception under 10
`U.S.C. 2304a(d)(3). See Pet. App. 93a-95a. Neverthe-
`less, that court granted judgment to the government on
`the administrative record because it found that peti-
`tioner was not prejudiced by the decision to award a sin-
`gle contract, see id. at 96a-98a, and that the conflicts of
`interest petitioner alleged did not affect the agency’s
`decision to adopt a single-award approach for JEDI
`Cloud, see id. at 107a-116a. The court of appeals af-
`firmed. See id. at 1a-39a.
`Petitioner filed a petition for a writ of certiorari on
`January 29, 2021; the government filed its brief in op-
`position on May 3, 2021; and respondent Amazon Web
`Services filed its brief in opposition on June 18, 2021.
`The petition has been distributed for consideration at
`the Court’s September 27, 2021 conference.
`2. On July 6, 2021, DoD announced that it had “can-
`celed the [JEDI] Cloud solicitation and initiated con-
`tract termination procedures” to terminate Microsoft’s
`contract. DoD, Future of the Joint Enterprise Defense
`
`
`
`
`
`4
`
`Infrastructure Cloud Contract (July 6, 2021) (July 6 An-
`nouncement).1 DoD stated that because of “evolving re-
`quirements, increased cloud conversancy, and industry
`advances, the JEDI Cloud contract no longer meets its
`needs.” Ibid. DoD’s acting chief information officer ex-
`plained that “JEDI was developed at a time when the
`Department’s needs were different and both the [cloud
`service providers’] technology and our cloud conver-
`sancy was less mature.” Ibid.
`DoD observed, however, that it “continues to have
`unmet cloud capability gaps for enterprise-wide, com-
`mercial cloud services at all three classification levels
`that work at the tactical edge, at scale.” July 6 An-
`nouncement. It also observed that “these needs have
`only advanced in recent years with efforts such as Joint
`All Domain Command and Control (JADC2) and the Ar-
`tificial Intelligence and Data Acceleration (ADA) initia-
`tive.” Ibid. Accordingly, DoD “announced its intent for
`new cloud efforts,” namely, the JWCC procurement,
`which “will be a multi-cloud/multi-vendor Indefinite
`Delivery-Indefinite Quantity (IDIQ) contract.” Ibid.
`The acting chief information officer explained that
`“[t]he JWCC’s multi-cloud environment will serve our
`future in a way that JEDI’s single award, single cloud
`structure simply cannot do.” C. Todd Lopez, DOD
`News, DOD Aims for New Enterprise-Wide Cloud by
`2022 (July 7, 2021) (July 7 Article).2
`DoD announced that it “intends to seek proposals
`from a limited number of sources” for the JWCC pro-
`curement, including Microsoft and Amazon, but also
`
`1 www.defense.gov/Newsroom/Releases/Release/Article/2682992/
`future-of-the-joint-enterprise-defense-infrastructure-cloud-contract.
`2 www.defense.gov/Explore/News/Article/Article/2684754/dod-
`aims-for-new-enterprise-wide-cloud-by-2022.
`
`
`
`
`5
`
`noted that it “will immediately engage with industry
`and continue its market research to determine whether
`any other U.S.-based” company “can also meet [its] re-
`quirements.” July 6 Announcement. DoD emphasized
`that neither Microsoft nor Amazon “will automatically
`win awards,” and that “Microsoft and Amazon will not
`be the only companies approached by [DoD].” July 7
`Article. Instead, the acting chief information officer
`stated that “he will also be reaching out to IBM, Oracle
`and Google.” Ibid. He further stated that new JWCC
`contracts “are expected to be awarded by April 2022,”
`with performance periods “consisting of a three-year
`performance base period and two one-year option peri-
`ods.” Ibid.; see General Services Administration, Pre-
`solicitation Contract Opportunity, Joint Warfighting
`Cloud Capability (JWCC) (July 6, 2021) (GSA Notice).3
`And he expressed his “hopes that by early 2025 [DoD]
`will have moved on to the next step: a full and open,
`competitively awarded multi-vendor contract providing
`cloud capability to [DoD].” July 7 Article.
`On July 8, 2021, the Court of Federal Claims dis-
`missed as moot a related bid protest by Amazon, a re-
`spondent in this case, in light of DoD’s cancellation of
`the JEDI Cloud solicitation and termination of Mi-
`crosoft’s contract. D. Ct. Doc. 274, at 1-2, Amazon Web
`Services, Inc. v. United States, No. 19-cv-1796 (Fed. Cl.
`July 8, 2021).
`3. The cancellation of the JEDI Cloud solicitation
`has rendered this case moot.
`a. This case is moot because it involves a protest to
`a procurement that has been terminated. Any determi-
`nation of the merits of the legal issues presented by the
`
`
`3 sam.gov/opp/54ce941a25a14932809b5d83ac52a09a/view.
`
`
`
`
`6
`
`petition would thus be untethered from an actual con-
`troversy or any concrete harm to petitioner. See Alva-
`rez v. Smith, 558 U.S. 87, 93 (2009) (explaining that a
`case is moot when the parties’ “dispute is no longer em-
`bedded in any actual controversy about the plaintiffs’
`particular legal rights” because “a dispute solely about
`the meaning of a law, abstracted from any concrete ac-
`tual or threatened harm, falls outside the scope of ” Ar-
`ticle III).
`The cancellation of JEDI Cloud means that any inju-
`ries petitioner allegedly suffered in the solicitation pro-
`cess are no longer redressable. The most that peti-
`tioner would have been entitled to had it prevailed in
`this case would have been the termination of the con-
`tract with Microsoft and a remand to the agency to con-
`duct anew the JEDI Cloud procurement. Thus, in its
`reply to the government’s brief in opposition, petitioner
`complained (at 4) that “[a]bsent this Court’s interven-
`tion, the JEDI contract will proceed for the next decade
`as an illegal single-source award.” But that contract has
`been terminated and JEDI Cloud has been canceled al-
`together. Accordingly, there is no additional relief that
`a federal court could order even if petitioner were to
`prevail on the questions presented in this case.
`As lower courts have long recognized, the cancella-
`tion of a solicitation generally renders moot any pend-
`ing bid protests with respect to that solicitation. See,
`e.g., Veterans Contracting Group, Inc. v. United States,
`743 Fed. Appx. 439, 440 (Fed. Cir. 2018) (finding an ap-
`peal in a government-contracting case moot once “the
`government terminated the contract” because the re-
`quested remedy “to award, or at least to consider
`awarding, the contract at issue to” the plaintiff was
`“now beyond the power of this court to grant”); Square
`
`
`
`
`
`7
`
`One Armoring Service, Inc. v. United States, 123 Fed.
`Cl. 309, 325 (2015) (observing that “ample precedent ex-
`ists for dismissing as moot plaintiff ’s challenge to the
`original evaluation and award based on [the federal
`agency’s] decision to cancel the Solicitation and re-
`procure the requirement”); id. at 325-326 (citing addi-
`tional cases); see also FMS Investment Corp. v. United
`States, 138 Fed. Cl. 152, 157 (2018) (“[The Department
`of Education] has cancelled the solicitation at issue in
`this bid protest and terminated for convenience its con-
`tract awards * * * . As such, [the unsuccessful bid-
`ders’] complaints challenging [the Department’s] evalu-
`ation of proposals and award decisions are now moot.”);
`cf. Galen Medical Associates, Inc. v. United States, 369
`F.3d 1324, 1333 (Fed. Cir. 2004) (agreeing that the
`plaintiff ’s “complaints regarding the initial solicitation
`were rendered moot when the VA vacated the award
`and agreed to amend the solicitation”).
`To the extent that the new JWCC solicitation is rel-
`evant, its multiple-award nature confirms that peti-
`tioner’s current challenge is moot. The first question
`presented in the petition for a writ of certiorari asks
`whether the court of appeals erred in refusing to re-
`mand the case to the agency after a finding “that the
`single-bidder award violated federal law.” Pet. i. Simi-
`larly, the second question presented involves conflicts
`of interest—in particular, those of former DoD em-
`ployee Deap Ubhi, who left the agency in 2017—that al-
`legedly tainted the agency’s decision to adopt a single-
`award approach for JEDI Cloud. See ibid.; see also Pet.
`27 (emphasizing that “Ubhi pushed hard for the single-
`award approach”); Pet. 32 (“From the start, Ubhi en-
`gaged in ‘loud advocacy for a single award approach’
`and soon became its foremost champion.”); Pet. 33 (“No
`
`
`
`
`
`8
`
`de novo review of these facts could conclude that Ubhi’s
`conduct was immaterial to the single-award structure of
`JEDI.”). Unlike JEDI Cloud, however, JWCC adopts
`a multiple-award approach. See July 6 Announcement.
`And DoD has made clear that although the agency in-
`tends to approach Microsoft and Amazon, if “additional
`vendors can also meet [DoD’s] requirements, then [it]
`will extend solicitations to them as well,” including “Or-
`acle.” July 7 Article. That is precisely what petitioner
`sought in its bid protest with respect to the JEDI Cloud
`solicitation, underscoring that the issues raised in that
`protest are moot.
`b. This case does not fall into the “exception to the
`mootness doctrine for a controversy that is ‘capable of
`repetition, yet evading review.’ ” Kingdomware Tech-
`nologies, Inc. v. United States, 136 S. Ct. 1969, 1976
`(2016) (citation omitted). “That exception applies ‘only
`in exceptional situations,’ where (1) ‘the challenged ac-
`tion is in its duration too short to be fully litigated prior
`to cessation or expiration,’ and (2) ‘there is a reasonable
`expectation that the same complaining party will be
`subject to the same action again.’ ” Ibid. (brackets and
`citation omitted). Neither of those exceptional situa-
`tions is present here.
`First, the JEDI Cloud solicitation was intended to be
`a long-term procurement for an indefinite-quantity con-
`tract with more than 4000 task orders spanning up to a
`decade. See C.A. App. 100,460. Unlike the “short-term
`contracts” at issue in Kingdomware, therefore, the
`long-term JEDI Cloud procurement would not have
`been “fully performed” in “too short [a time] to com-
`plete judicial review of the lawfulness of the procure-
`ment.” 136 S. Ct. at 1976. And the same will be true of
`the JWCC procurement, which anticipates contracts
`
`
`
`
`
`9
`
`with performance periods of up to five years. See GSA
`Notice.
`Second, petitioner provides no reason to expect that
`it will again bid on a single-award indefinite-quantity
`contract despite an inability to satisfy certain threshold
`requirements, and then be denied relief in a bid protest
`because courts determine that the agency would have
`imposed the same threshold requirements in a multiple-
`award procurement. See Pet. App. 96a-98a. Unlike the
`“Rule of Two” at issue in Kingdomware, therefore, the
`“legal issue in this case” is not “likely to recur in future
`controversies between the same parties in circum-
`stances where the period of contract performance is too
`short to allow full judicial review before performance is
`complete.” Kingdomware, 136 S. Ct. at 1976.
`c. To be sure, “a defendant cannot automatically
`moot a case simply by ending its unlawful conduct once
`sued.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91
`(2013). But the purpose of that exception to mootness
`is to prevent a defendant from “engag[ing] in unlawful
`conduct, stop[ping] when sued to have the case declared
`moot, then pick[ing] up where he left off, repeating this
`cycle until he achieves all his unlawful ends.” Ibid.
`Here, DoD canceled the JEDI Cloud solicitation and
`terminated Microsoft’s contract because “evolving re-
`quirements, increased cloud conversancy, and industry
`advances” meant that the “JEDI Cloud contract no
`longer meets [DoD’s] needs.” July 6 Announcement.
`Nothing in DoD’s announcement or in the record in this
`case suggests that DoD canceled JEDI Cloud solely to
`moot this case with the intention of “pick[ing] up where
`[it] left off ” as soon as the litigation ends. Already, 568
`U.S. at 91. Nor is there any reasonable basis to con-
`clude that DoD will resurrect JEDI Cloud in the future.
`
`
`
`
`
`10
`
`See July 7 Article (explaining that “JEDI’s single
`award, single cloud structure simply cannot” “serve
`[DoD’s] future” needs). Accordingly, “it is absolutely
`clear the allegedly wrongful behavior could not reason-
`ably be expected to recur.” Already, 568 U.S. at 91 (ci-
`tation omitted). And to the extent the JWCC solicita-
`tion is relevant, it will employ a multiple-award, not a
`single-award, approach. See July 6 Announcement.
`4. Mootness is an additional and independent reason
`to deny the petition for a writ of certiorari. As this
`Court has observed, federal courts may not “decide the
`merits of a legal question not posed in an Article III
`case or controversy.” U.S. Bancorp Mortgage Co. v.
`Bonner Mall Partnership, 513 U.S. 18, 21 (1994). Be-
`cause the petition no longer raises any requests for re-
`lief that a federal court could provide, the injuries peti-
`tioner complains of are no longer redressable, and ple-
`nary review of the merits of the legal issues raised in
`the petition would be inappropriate and inconsistent
`with Article III. See New York State Rifle & Pistol As-
`sociation v. City of New York, 140 S. Ct. 1525, 1526
`(2020) (per curiam) (holding that a “claim for declara-
`tory and injunctive relief with respect to the City’s old
`rule [was] moot” after the state and city amended the
`challenged statute and rule, respectively); Princeton
`University v. Schmid, 455 U.S. 100, 103 (1982) (per cu-
`riam) (similar, after university amended the challenged
`regulation).
`Nor is this an appropriate case in which to grant the
`petition for a writ of certiorari in order to summarily
`vacate the court of appeals’ judgment and remand with
`instructions that petitioner’s bid protest be dismissed
`as moot. See Munsingwear, 340 U.S. at 39. Vacatur
`under Munsingwear is appropriate only if, among other
`
`
`
`
`
`11
`
`things, the petition for a writ of certiorari would have
`merited this Court’s plenary review had it not become
`moot. See Stephen M. Shapiro et al., Supreme Court
`Practice § 19.4, at 19-29 n.34 (11th ed. 2019); see also,
`e.g., U.S. Br. in Opp. at 5-8, Velsicol Chemical Corp. v.
`United States, cert. denied, 435 U.S. 942 (1978) (No. 77-
`900); Gov’t Br. in Opp. at 6-8, Electronic Privacy Infor-
`mation Center v. Department of Commerce, cert. de-
`nied, 140 S. Ct. 2718 (2020) (No. 19-777). Because this
`case did not merit further review before cancellation of
`the JEDI Cloud solicitation, see Br. in Opp. 14-32, it
`does not merit Munsingwear vacatur now.
`* * * * *
`For the foregoing reasons and those in the govern-
`ment’s brief in opposition, the petition for a writ of cer-
`tiorari should be denied.
`Respectfully submitted.
`
`
`SEPTEMBER 2021
`
` BRIAN H. FLETCHER
`Acting Solicitor General
`
`
`
`
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