Case: 19-2326 Document: 82 Page: 1 Filed: 09/02/2020
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ORACLE AMERICA, INC.,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES, AMAZON WEB SERVICES, INC.,
`Defendants-Appellees
`______________________
`
`2019-2326
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:18-cv-01880-EGB, Senior Judge Eric G. Bruggink.
`______________________
`
`Decided: September 2, 2020
`______________________
`
`CRAIG HOLMAN, Arnold & Porter Kaye Scholer LLP,
`Washington, DC, argued for plaintiff-appellant. Also rep-
`resented by KARA L. DANIELS, NATHANIEL EDWARD
`CASTELLANO, AMANDA J. SHERWOOD.
`
` WILLIAM PORTER RAYEL, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, argued for defendant-appellee
`United States. Also represented by ETHAN P. DAVIS,
`ROBERT EDWARD KIRSCHMAN, JR., PATRICIA M. MCCARTHY.
`
` DANIEL RUBEN FORMAN, Crowell & Moring, LLP,
`Washington, DC, argued for defendant-appellee Amazon
`
`

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`ORACLE AMERICA, INC. v. UNITED STATES
`
`Web Services, Inc. Also represented by ROBERT JOSEPH
`SNECKENBERG, OLIVIA LOUISE LYNCH, ZACHARY H.
`SCHROEDER; GABRIELLE TRUJILLO, Los Angeles, CA; MARK
`ANDREW PERRY, Gibson, Dunn & Crutcher LLP, Washing-
`ton, DC.
` ______________________
`
`Before NEWMAN, BRYSON, and O’MALLEY, Circuit Judges.
`BRYSON, Circuit Judge.
`
`This is a federal contract pre-award protest case. The
`United States Court of Federal Claims (“the Claims Court”)
`analyzed a number of legal challenges by Oracle America,
`Inc., to a large Department of Defense procurement. After
`a thorough treatment of all the issues presented, the
`Claims Court rejected Oracle’s protest. Oracle Am., Inc. v.
`United States, 144 Fed. Cl. 88 (2019). We affirm.
`I
`The procurement at issue in this case, known as the
`
`Joint Enterprise Defense Infrastructure (“JEDI”) Cloud
`procurement, is directed to the long-term provision of en-
`terprise-wide cloud computing services to the Department
`of Defense. The JEDI Cloud solicitation contemplated a
`ten-year indefinite delivery, indefinite quantity contract.
`The Defense Department decided to award the contract to
`a single provider rather than making awards to multiple
`providers.
`The JEDI Cloud solicitation included several “gate”
`provisions that prospective bidders would be required to
`satisfy. One of the gate provisions, referred to as Gate Cri-
`teria 1.2 or Gate 1.2, required that the contractor have at
`least three existing physical commercial cloud offering data
`centers within the United States, each separated from the
`others by at least 150 miles. Those data centers were re-
`quired to provide certain offerings that were “FedRAMP
`Moderate Authorized” at the time of proposal. The Federal
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`3
`
`Program
`and Authorization Management
`Risk
`(“FedRAMP”) is an approach to security assessment, au-
`thorization, and continuous monitoring for cloud products
`and services. “FedRAMP Moderate Authorized” is a desig-
`nation given to systems that have successfully completed
`the FedRAMP Moderate authorization process. FedRAMP
`Moderate is the Defense Department’s minimum security
`level for processing or storing the Department’s least sen-
`sitive information. Oracle did not satisfy the FedRAMP
`Moderate Authorized requirement as of the time the pro-
`posals were to be submitted.
` Oracle filed a pre-bid protest challenging the solicita-
`tion. Oracle’s protest focused on the Department’s adop-
`tion of Gate 1.2 and on the Department’s decision to
`conduct the procurement on a single-source basis, rather
`than providing for multi-source contracts.
`Following a hearing and briefing, the U.S. Government
`Accountability Office (“GAO”) denied the protest. Oracle
`then filed suit in the Claims Court challenging the solicita-
`tion. The court analyzed Oracle’s claims in detail and re-
`jected Oracle’s protest in a lengthy opinion.
`The court first addressed Oracle’s claim that the con-
`tracting officer and the Under Secretary of Defense vio-
`lated separate provisions of 10 U.S.C. § 2304a when they
`each determined that it was appropriate to structure the
`JEDI Cloud procurement on a single-award basis rather
`than providing for multiple awards. Section 2304a sets out
`the conditions under which the Department may enter into
`large task and delivery order contracts with a single
`awardee, as opposed to awarding such contracts to two or
`more sources.
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`Section 2304a(d)(3) generally prohibits the award of a
`task or delivery order contract in excess of $100 million1 to
`a single vendor unless the head of the agency determines
`in writing that one of four exceptions to that general prohi-
`bition applies. The exceptions are:
`(i) the task or delivery orders expected under the
`contract are so integrally related that only a single
`source can efficiently perform the work;
`(ii) the contract provides only for firm, fixed price
`task orders or delivery orders for—
`(I) products for which unit prices are estab-
`lished in the contract; or
`(II) services for which prices are established in
`the contract for the specific tasks to be per-
`formed;
`(iii) only one source is qualified and capable of per-
`forming the work at a reasonable price to the gov-
`ernment; or
`(iv) because of exceptional circumstances, it is nec-
`essary in the public interest to award the contract
`to a single source.
`10 U.S.C. § 2304a(d)(3)(A).
`In addition to that provision, section 2304a(d)(4) re-
`quires that regulations implementing section 2304a(d) “es-
`tablish a preference for awarding, to the maximum extent
`practicable, multiple task or delivery order contracts for
`the same or similar services,” and that they “establish cri-
`teria for determining when award of multiple task or deliv-
`ery order contracts would not be in the best interest of the
`
`1 The statutorily defined threshold amount is subject
`to an inflation adjustment requirement. See 41 U.S.C.
`§ 1908.
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`5
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`Federal Government.” 10 U.S.C. § 2304a(d)(4). Pursuant
`to that directive, the Federal Acquisition Regulation
`(“FAR”) provides that, except for indefinite-quantity con-
`tracts for advisory and assistance services, “the contracting
`officer must, to the maximum extent practicable, give pref-
`erence to making multiple awards of indefinite-quantity
`contracts under a single solicitation for the same or similar
`supplies or services to two or more sources.” 48 C.F.R.
`§ 16.504(c)(1)(i) (“FAR 16.504(c)(1)(i)”). The FAR further
`provides, however, that the contracting officer must not
`elect to use a multiple-contract award if one or more of sev-
`eral conditions applies:
`(1) Only one contractor is capable of providing per-
`formance at the level of quality required because
`the supplies or services are unique or highly spe-
`cialized;
`(2) Based on the contracting officer’s knowledge of
`the market, more favorable terms and conditions,
`including pricing, will be provided if a single award
`is made;
`(3) The expected cost of administration of multiple
`contracts outweighs the expected benefits of mak-
`ing multiple awards;
`(4) The projected orders are so integrally related
`that only a single contractor can reasonably per-
`form the work;
`(5) The total estimated value of the contract is less
`than the simplified acquisition threshold; or
`(6) Multiple awards would not be in the best inter-
`ests of the Government.
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`FAR 16.504(c)(1)(ii)(B).2
`The head of the agency—in this case, Under Secretary
`of Defense Ellen Lord—made a finding under section
`2304a(d)(3)(B)(ii) that a single-source contract was permis-
`sible because the solicitation provides exclusively 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. For her part, the contracting officer
`found that three of the reasons set forth in FAR
`16.504(c)(1)(ii)(B) prohibited the use of the multiple-award
`approach for the JEDI Cloud procurement: (1) more favor-
`able terms and conditions, including pricing, would be pro-
`vided in the case of a single award; (2) the expected cost of
`administering multiple contracts outweighed the expected
`benefits of making multiple awards; and (3) multiple
`awards would not be in the best interests of the govern-
`ment.
`Before the Claims Court, Oracle challenged the deter-
`minations of both the contracting officer and Under Secre-
`tary Lord. As to the contracting officer, Oracle argued that
`she failed to properly balance the multiple-award prefer-
`ence against a single-award approach. As to Under Secre-
`tary Lord, Oracle argued that the JEDI Cloud solicitation
`contained provisions for future services that were not spe-
`cifically defined and for which specific prices were not
`given. For that reason, Oracle contended, the contract did
`not qualify as one providing only for firm, fixed prices for
`services for which prices are established in the contract for
`the specific tasks to be performed.
`
`
`2 On August 3, 2020, the regulation was amended to
`replace the phrase “less than” with “at or below.” Federal
`Acquisition Regulation: Evaluation Factors for Multiple-
`Award Contracts, 85 Fed. Reg. 40068-01 (July 2, 2020).
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`The Claims Court held that the contracting officer’s de-
`termination complied with the requirements of section
`2304a(d)(4) and FAR 16.504(c). The court concluded that
`the contracting officer, based on her knowledge of the mar-
`ket, “drew the reasonable conclusion that a single award
`was more likely to result in favorable terms, including
`price.” Oracle, 144 Fed. Cl. at 113. In addition, the court
`found that it was “completely reasonable” for the contract-
`ing officer to find that a multisource award would be more
`expensive to administer and that a single cloud services
`provider would be best positioned to provide the necessary
`security for the agency’s data. Id. The court concluded that
`Oracle had pointed to no reason to disturb the contracting
`officer’s determination that multiple awards should not be
`employed.
`With respect to section 2304a(d)(3), however, the
`Claims Court reached a different conclusion. The court
`held that the solicitation did not qualify for a single-source
`award under the exception relied on by Under Secretary
`Lord to the statutory prohibition against awarding large
`task order contracts to a single vendor. Specifically, the
`court found that the solicitation contemplated that during
`the life of the contract, services not envisioned at the time
`of the initial award would likely be needed. New services
`would likely have to be added to the contract in light of the
`fact that cloud computing technology was constantly evolv-
`ing. The solicitation provided that if at some point during
`the pendency of the contract the cloud services provider
`created a new service, it would be required to offer that ser-
`vice to the Department at a price no higher than the price
`publicly available in the commercial marketplace in the
`continental United States. The solicitation also permitted
`the Department to obtain services before they were offered
`on the commercial market, even if those services would
`never be offered commercially. Those services, the court
`explained, could not be identified as “specific tasks” much
`less “priced[] at the time of the award.” Oracle, 144 Fed.
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`Cl. at 114. Accordingly, the court concluded, “the Under
`Secretary apparently
`chose an
`exception under
`§ 2304a(d)(3) which does not fit the contract.” Id. at 115.
`The Claims Court then turned to the question whether
`Oracle was prejudiced by the Department’s failure to com-
`ply with section 2304a(d)(3). Oracle argued that if the De-
`partment had employed a multiple-award procurement,
`Oracle might have had the chance to compete, because the
`agency’s needs, as expressed in the gate criteria, might
`have been different in that setting. The government re-
`sponded that the agency’s minimum security needs would
`not have changed in a multiple-award scenario. In a mul-
`tiple-award procurement, according to the government, the
`Department still would have insisted on gate criteria in
`general and Gate 1.2 in particular.
`The Claims Court agreed with the government. The
`court acknowledged that “Oracle may well be correct that
`some aspects of the gate criteria are driven by the agency’s
`insistence on using a single provider to manage an im-
`mense amount of data.” Oracle, 144 Fed. Cl. at 115. The
`court observed, however, that “one critical aspect of the
`gate criteria is not connected to the choice of a single pro-
`vider: data security.” Id. The court pointed in particular
`to a memorandum prepared by Tim Van Name, Deputy Di-
`rector of the Defense Digital Service. In that memoran-
`dum, Mr. Van Name stated that FedRAMP Moderate,
`which was incorporated as a requirement in Gate 1.2, rep-
`resented the Department’s minimum level of security re-
`quired for processing and storing the Department’s least
`sensitive information. That level of security, according to
`Mr. Van Name’s memorandum, was “the minimum criteria
`necessary for DoD to have confidence that the Offeror’s pro-
`posed data centers have met the underlying physical secu-
`rity requirements necessary to successfully perform the
`contract.” J.A. 100947.
`
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`
`In addition, the court noted that many of the acquisi-
`tion documents “bolster the agency’s conviction that use of
`multiple cloud service providers exponentially increases
`the challenge of securing data.” Oracle, 144 Fed. Cl. at 116.
`The court explained that it had “no reason to doubt” that
`the security requirements of Gate 1.2 “are the minimum
`that will be necessary to perform even the least sensitive
`aspects of the JEDI Cloud project.” Id. Based on that evi-
`dence, the court stated that “the only logical conclusion is
`that, if multiple awards were made, the security concerns
`would ratchet up, not down.” Id. Because the agency’s se-
`curity concerns would not change, the court explained, Or-
`acle “would not stand a better chance of being awarded this
`contract if the agency determined that the procurement
`must be changed to multiple award.” Id. The court there-
`fore concluded that the decision to proceed with the pro-
`curement on a single-source basis did not prejudice Oracle.
`The Claims Court next addressed Oracle’s claim that
`Gate 1.2 was unenforceable, both because the agency did
`not have a demonstrated need to impose the requirements
`set forth in Gate 1.2 and because Gate 1.2 is an impermis-
`sible “qualification requirement” imposed without satisfy-
`ing the preconditions set forth in 10 U.S.C. § 2319. Section
`2319(a) defines a “qualification requirement” as “a require-
`ment for testing or other quality assurance demonstration
`that must be completed by an offeror before award of a con-
`tract.” Section 2319(b) provides that, except in limited cir-
`cumstances, the agency must satisfy several prerequisites
`before establishing a qualification requirement. One such
`prerequisite is that “the head of the agency shall . . . pre-
`pare a written justification stating the necessity for estab-
`lishing the qualification requirement and specify why the
`qualification requirement must be demonstrated before
`contract award.” 10 U.S.C. § 2319(b)(1).
`The Claims Court rejected both of Oracle’s arguments
`that Gate 1.2 was unenforceable. As to the issue of need,
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`the court agreed with the government that Gate 1.2 was
`tied to the agency’s minimum needs. The court referred to
`the memorandum from Mr. Van Name, one of the principal
`architects of the solicitation requirement, which justified
`imposing the FedRAMP Moderate Authorized requirement
`on the ground that FedRAMP Moderate represents the De-
`partment’s minimum security requirements for processing
`or storing the Department’s least sensitive information. As
`noted, Mr. Van Name explained that FedRAMP Moderate
`was the minimum level of security necessary for the De-
`fense Department to have confidence that the Offeror’s pro-
`posed data centers would have been able to timely meet the
`physical security requirements needed to successfully per-
`form the contract. Based on the record evidence, the court
`found that the requirement to satisfy FedRAMP Moderate
`is “a useful proxy . . . for the agency’s real need. If an offe-
`ror were unable to meet the lower threshold, it could not
`hope to meet the higher” security requirements that would
`be required during the performance of the contract. Oracle,
`144 Fed. Cl. at 117.
`As for Oracle’s argument that the government improp-
`erly used Gate 1.2 as a “qualification requirement” without
`satisfying the preconditions set forth in section 2319, the
`Claims Court ruled that Oracle had waived that argument
`by not raising it before the bids were due. Oracle did not
`raise the argument about the impermissible use of a qual-
`ification requirement until its post-hearing comments sub-
`mitted to the GAO after the close of the bidding on the
`procurement.
`In any event, the court concluded that there was no
`merit to the argument, because Gate 1.2 did not constitute
`“a requirement for testing or other quality assurance
`demonstration that must be completed by an offeror before
`award of a contract.” Id. (quoting 10 U.S.C. § 2319(a)). In-
`stead, according to the Claims Court, Gate 1.2 constituted
`a specification. The statute describes a qualification re-
`quirement as generally consisting of “a qualified bidders
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`list, qualified manufacturers list, or qualified products
`list.” 10 U.S.C. § 2319(c)(3). A specification, by contrast, is
`a requirement “of the particular project for which the bids
`are sought, such as design requirements, functional re-
`quirements, or performance requirements.” W.G. Yates &
`Sons Constr. Co. v. Caldera, 192 F.3d 987, 994 (Fed. Cir.
`1999) (citing 10 U.S.C. § 2305(a)(1)(C)).
`The court concluded that Gate 1.2 is not a qualification
`requirement, because the agency did not require an offeror
`to prequalify in order to submit a proposal. In addition, the
`court explained, FedRAMP Moderate authorization is not
`an independent requirement that the Department regu-
`larly imposes in its procurements. Finally, the court
`pointed out that the security features that FedRAMP Mod-
`erate authorization imposes are the same security features
`that the Department believed were the minimum neces-
`sary to store the Department’s data for the JEDI Cloud pro-
`ject. Accordingly, the court found, the Department was not
`using the FedRAMP standard as a way to examine the of-
`feror’s past performance in storing government data. Ra-
`ther, “it [was] a uniform way to determine which offerors
`have certain security capabilities on a number of their
`cloud offerings.” Oracle, 144 Fed. Cl. at 118.
`The Claims Court next rejected Oracle’s argument that
`Gate 1.2 transformed the procurement into one that uses
`other than competitive procedures, in violation of 10 U.S.C.
`§ 2304. The court found that the agency structured the
`procurement as a full and open competition, and that sat-
`isfying the gate criteria was merely the first step in ensur-
`ing that the Department’s time in the evaluation process
`was not wasted on offerors who could not meet the agency’s
`minimum needs.
`Finally, the Claims Court examined Oracle’s claims
`that several Department officials who were involved in
`some way with the procurement had conflicts of interest,
`and that Amazon Web Services, Inc., (“AWS”), one of the
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`bidders on the contract, had an organizational conflict, all
`of which infected the procurement. The court addressed
`the question whether the contracting officer had properly
`assessed the impact of the conflicts on the procurement and
`found that she had. The court then concluded that the con-
`tracting officer had properly exercised her discretion in
`finding that the individual and organizational conflicts
`complained of by Oracle did not affect the integrity of the
`procurement.
`Based on the court’s determination that Gate 1.2 is en-
`forceable and Oracle’s concession that it could not meet the
`requirements of Gate 1.2 at the time of proposal submis-
`sion, the Claims Court found that Oracle could not “demon-
`strate prejudice as a result of any other possible errors.”
`Oracle, 144 Fed. Cl. at 126. The court therefore denied Or-
`acle’s motion for judgment on the administrative record
`and granted the cross-motions filed by the government and
`intervenor AWS. Oracle then took this appeal.
`II
`Oracle’s principal argument on appeal is that the De-
`fense Department committed legal error when it elected to
`conduct the JEDI Cloud procurement as a single-source
`procurement. Although the Claims Court agreed with Or-
`acle that the Department committed legal error with re-
`spect to the ground it invoked to justify the use of a single-
`source procurement, the court found the error to be harm-
`less. The court concluded that the error was harmless be-
`cause even if the Department had opted for a multi-source
`procurement, Oracle would not have been able to satisfy
`the requirements of Gate 1.2, which the Department would
`have imposed regardless of whether the procurement was
`conducted on a single-source or multi-source basis.
`A
`In challenging the Department’s decision to conduct
`
`the JEDI Cloud procurement on a single-source basis,
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`Oracle begins by pointing out that Congress has expressed
`its preference for awarding, “to the maximum extent prac-
`ticable, multiple task or delivery order contracts for the
`same or similar services or property.”
` 10 U.S.C.
`§ 2304a(d)(4). Section 2304a(d) and the regulations issued
`pursuant to that provision state that the contracting officer
`and the agency head must make certain specified determi-
`nations before the agency can proceed with a single-source
`award in a large procurement such as this one. On appeal,
`Oracle does not take issue with the Claims Court’s finding
`that the contracting officer’s determination was reasona-
`ble. And Oracle agrees with the Claims Court that Under
`Secretary Lord’s rationale for approving the use of a single-
`source award for the JEDI Cloud procurement did not sat-
`isfy the exception to section 2304a(d)(3) that she invoked.
`Oracle takes issue, however, with the Claims Court’s con-
`clusion that Oracle was not prejudiced by Under Secretary
`Lord’s determination.
`In response, the government endorses the Claims
`Court’s “no-prejudice” ruling. In the alternative, the gov-
`ernment argues that, apart from the merits of the court’s
`prejudice analysis, we may still affirm because the Claims
`Court incorrectly rejected Under Secretary Lord’s determi-
`nation that a single-source award was justified under sec-
`tion 2304a(d)(3). Under Secretary Lord based that
`determination on the exception set forth in section
`2304a(d)(3)(B)(ii) for contracts that provide 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.” The Claims Court, however, held that
`the JEDI Cloud solicitation did not provide for “firm, fixed
`price task orders” for which prices were established in the
`contract, because the solicitation contained provisions for
`the awardee to supply unspecified services in the future at
`as-yet unspecified prices.
`
`The government’s argument that the contract provides
`only for firm, fixed price task orders is unpersuasive for the
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`reasons given by the Claims Court. The JEDI Cloud con-
`tract contains a technology refresh provision (section H2)
`that allows the addition of new cloud services during the
`period of contract performance, when those services did not
`exist at the time of award, in order “to keep pace with ad-
`vancements in the industry.” Under that clause, it is an-
`ticipated that there will be updates to the cloud services
`during the pendency of the contract. Thus, the solicitation
`provides that new services will be added, with new prices,
`that are not provided for in the initial contract.
`
`The government argues that the exception in section
`2304a(d)(3)(B)(ii) applies here because the statute does not
`require that “all tasks/prices must be established ‘at the
`time of the award.’” Rather, the government argues, the
`requirement that tasks and prices be “established in the
`contract” does not address when the “tasks and prices upon
`which future orders will be based must be ‘established.’” It
`is enough, according to the government, that new tasks and
`prices are set pursuant to the terms of the contract, includ-
`ing section H2, and the subsequent task orders are issued
`on a fixed-price basis.
`The Claims Court properly rejected the government’s
`argument. As the court explained, the language of section
`2304a(d)(3) makes clear that the services to be performed
`under the contract and the prices for those services must
`be established in the contract at the time of award. That
`follows from the provision in the statute that “no . . . con-
`tract . . . may be awarded” unless the agency head deter-
`mines that the “contract provides only for firm, fixed price
`task orders or delivery orders for . . . services for which
`prices are established in the contract.” 10 U.S.C.
`§ 2304a(d)(3). The plain language of the statute refers to
`conditions that must exist at the time of the contract
`award.
`
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`ORACLE AMERICA, INC. v. UNITED STATES
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`15
`
`B
` Having found that the statutory prerequisite for use of
`a single-source contract had not been satisfied, the Claims
`Court moved to the question whether that flaw in the pro-
`cess prejudiced Oracle. The court found no prejudice from
`the error based on the court’s finding that the agency’s min-
`imum needs, as expressed in Gate 1.2, would not have been
`different in a multi-award scenario than in a single-award
`scenario. Therefore, the court concluded, even if the agency
`had been required to conduct the procurement on a multi-
`ple-award basis, the requirements of Gate 1.2 would have
`applied. And because Oracle would not have been able to
`satisfy those requirements, it would have had no chance of
`a contract award, so the flaw in the procurement process
`did not harm Oracle.
` Oracle takes issue with the Claims Court’s harmless
`error analysis. In particular, Oracle argues that the
`Claims Court erred by accepting the government’s argu-
`ment that under a multiple-award solicitation the Depart-
`ment would still have insisted on imposing Gate 1.2. That
`decision, Oracle argues, was one that should have been
`made by the agency. It was improper, according to Oracle,
`for the court to decide that the agency would have insisted
`on Gate 1.2 even if it had known that it was required to use
`a multiple-award solicitation for the JEDI Cloud procure-
`ment. Citing SEC v. Chenery Corp., 318 U.S. 80 (1943),
`Oracle contends that the Claims Court should not have
`“presume[d] how DoD would structure a multiple-award
`procurement as DoD must make that decision in the first
`instance.” Appellant’s Br. 35–36.
`
`The Supreme Court has referred to the Chenery doc-
`trine as embodying a “‘foundational principle of adminis-
`trative law’ that judicial review of agency action is limited
`to ‘the grounds that the agency invoked when it took the
`action.’” Dep’t of Homeland Sec. v. Regents of the Univ. of
`Cal., 140 S. Ct. 1891, 1907 (2020) (quoting Michigan v.
`
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`16
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`ORACLE AMERICA, INC. v. UNITED STATES
`
`EPA, 576 U.S. 743, 758 (2015)). In Chenery, the Supreme
`Court explained the rationale for that rule:
`If an order is valid only as a determination of policy
`or judgment which the agency alone is authorized
`to make and which it has not made, a judicial judg-
`ment cannot be made to do service for an adminis-
`trative judgment. For purposes of affirming no less
`than reversing its orders, an appellate court cannot
`intrude upon the domain which Congress has ex-
`clusively entrusted to an administrative agency.
`318 U.S. at 88.
`The Chenery doctrine, however, does not invariably re-
`quire a remand to the agency whenever a court holds that
`the agency’s action was based on legally improper grounds.
`As the Supreme Court, this court, and other circuit courts
`have recognized, principles of harmless error apply to judi-
`cial review of agency action generally. A remand is unnec-
`essary when the error in question “clearly had no bearing
`on the procedure used or the substance of decision
`reached,” Mass. Trs. of E. Gas & Fuel Assocs. v. United
`States, 377 U.S. 235, 248 (1964); if there is no reason to
`believe that the decision would have been different, In re
`Watts, 354 F.3d 1362, 1370 (Fed. Cir. 2004); if it is clear
`that the agency would have reached the same result, Flesh-
`man v. West, 138 F.3d 1429, 1433 (Fed. Cir. 1998); if the
`result is “foreordained,” Bethlehem Steel Corp. v. Gorsuch,
`742 F.2d 1028, 1036 (7th Cir. 1984); if the court is not “in
`substantial doubt whether the administrative agency
`would have made the same ultimate finding with the erro-
`neous finding removed,” Kurzon v. U.S. Postal Serv., 539
`F.2d 788, 796 (1st Cir. 1976); or where there is no “signifi-
`cant chance that but for the error, the agency might have
`reached a different result,” NLRB v. Am. Geri-Care, Inc.,
`697 F.2d 56, 64 (2d Cir. 1982).
`As this court has summed up the rule, a court may af-
`firm the decision of an agency on a ground other than the
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`Case: 19-2326 Document: 82 Page: 17 Filed: 09/02/2020
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`ORACLE AMERICA, INC. v. UNITED STATES
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`17
`
`ground given by the agency, 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 unavailable,
`or if the decision does not depend on making a finding of
`fact not previously made by the agency. See Ford Motor
`Co. v. United States, 811 F.3d 1371, 1380 (Fed. Cir. 2016);
`Killip v. OPM, 991 F.2d 1564, 1568–69 (Fed. Cir. 1993);
`Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 528 (Fed. Cir.
`1992).
`In this case, the Claims Court found, based on the evi-
`dence in the administrative record, that the Defense De-
`partment would have stuck with Gate 1.2 even if it had
`been required to conduct the procurement on a multiple-
`award basis. As the court explained:
`[T]he only logical conclusion is that, if multiple
`awards were made, the security concerns would
`ratchet up, not down. They are, indeed, minimally
`stated. If Oracle cannot meet Gate Criteria 1.2 as
`currently configured, it is thus not prejudiced by
`the decision to make a single award. The agency’s
`needs would not change, so Oracle would not stand
`a better chance of being awarded this contract if
`the agency determined that the procurement must
`be changed to [a] multiple award.
`Oracle, 144 Fed. Cl. at 116.
`This appeal is a review of a Claims Court decision on
`an administrati