Bradley attorney Aron Beezley was quoted in Law360 on the Department of Defense’s procurement process for a Joint Enterprise Defense Infrastructure deal that a judge found to be a “flawed” solicitation. Oracle America Inc. lost a bid for the $10 billion JEDI cloud system contract, which the DOD decided to make a single-award deal -- unlike most major defense deals that are typically required by law to have multiple awards.
U.S. Court of Federal Claims Judge Eric G. Bruggink made clear that the DOD’s top acquisition official had provided a “flawed” legal justification to support the department’s decision -- possibly opening up several potential avenues for an appeal.
Although Judge Bruggink’s ruling reinforced the requirement for protesters to show actual harm, the form of that prejudice ruling could also be a point of appeal, said Beezley.
The traditional standard in pre-award contract protests is that the challenger must show a “nontrivial competitive injury,” but that was not the standard Judge Bruggink used, Beezley said.
“The court … found that the traditional pre-award prejudice test was inapplicable and, instead, applied the traditional post-award ‘substantial chance of receiving the contract award’ standard for prejudice,” he said.
If Oracle challenges the prejudice ruling, that could bring into play some earlier court decisions holding that the appropriate standard to consider when a bidder has been excluded is “whether the protester would have had a substantial chance of being included in the competitive range” if not for the agency's errors, Beezley said.
“It will be interesting to see if [those decisions] factor into the parties’ arguments before the Federal Circuit, assuming the case gets appealed,” he said.
The complete article, “DOD ‘Flaws’ Open Door for JEDI Appeal” first appeared in Law360 on July 31, 2019.