Last month, we wrote about the latest development in the much-litigated Joint Enterprise Defense Infrastructure (“JEDI”) contract. That development was Amazon Web Services, Inc.’s (“AWS”) request for a temporary restraining order and preliminary injunction, following the filing of its November 2019 complaint at the U.S. Court of Federal Claims (“COFC”). AWS’ motion was aimed at preventing the Department of Defense (“DoD”) and JEDI contract awardee, Microsoft Corp. (“Microsoft”), from commencing performance on the $10 billion contract.
On February 13, 2020, COFC granted AWS’ motion. While COFC’s opinion and order remain sealed, two facts are clear: (1) the DoD and Microsoft are preliminarily enjoined from “proceeding with contract activities . . . until further order of the court;” and (2) AWS has scored a notable victory in challenging DoD’s award decision. To prevail on a motion for preliminary injunction, the movant must demonstrate, among other things, that it is more likely than not to succeed on the merits of its claims. AWS accomplished this by pointing to the robustness of its technical proposal. In its memorandum supporting the motion, AWS dropped many of the arguments related to improper political pressure and favored a more detailed description of the company’s technical capabilities relative to the DoD’s stated requirements. This focus on technical capabilities stands in contrast to the arguments of another JEDI contract protester—Oracle America, Inc. (“Oracle”).
From August 2018 through the present, Oracle has consistently challenged DoD’s actions based on three primary contentions:
1. DoD’s intent to make a single award, as opposed to multiple awards, was a violation of law;
2. DoD’s use of certain gate criteria at the proposal stage was improper; and
3. Certain alleged conflicts of interest prejudicially affected the procurement.
Oracle’s legal arguments were clear and well-crafted. Even so, in July 2019, COFC denied Oracle’s protest on the ground that the company acknowledged its inability to meet the technical gate criteria at the time of proposal submission. Accordingly, COFC determined that Oracle could not “demonstrate prejudice as a result of any other possible errors.” Oracle appealed the lower court’s decision, an action which is still pending at the U.S. Court of Appeals for the Federal Circuit.
While both actions remain pending before their respective courts, contractors can glean early lessons from both companies’ efforts: In the context of a post-award bid protest, in many cases arguing the merits of a fully-responsive, technically-robust and price-competitive proposal is the best approach. Accordingly, before writing a proposal, you should thoroughly review the solicitation and prepare a compliance-matrix spreadsheet listing all of the solicitation requirements, the employee assigned to write the section of the proposal that satisfies each requirement, and when each requirement was completed. After you have compiled your compliance matrix, review the solicitation requirements to determine whether there is a basis for a pre-award bid protest. Also, keep the possibility of a post-award bid protest in mind when you write proposals, paying great attention to ensure that your proposal is fully responsive to the requirements in the solicitation. If you believe there may a basis for protesting either a solicitation (pre-award bid protest) or a contract award (post-award bid protest), you can find further information in our Guide to Bid Protests, or feel free to contact any one of our experienced attorneys. Time is of the essence as you have 10 days to file a pre-award bid protest at the General Accounting Office or 1 year to file a bid protest in the Federal Court of Claims.