Government’s and intervenor’s motions to dismiss protester’s bias theory is denied. The protester argued that the evaluation had been tainted by bias and improper influence of the President of the United States. The government argued that this was really a challenge to the structure of the procurement. As a result, the protester’s bias theory should have been raised prior to award and thus had been waived under the Blue & Gold doctrine. The court, however, found that the Blue & Gold doctrine only applies to challenges to the terms of a solicitation, not to claims alleging a biased award decision. Moreover, the court reasoned, the defendants had mischaracterized the protester’s theory; the protester was challenging the execution of a corrective action, not the structure of the procurement.
In November 2019, the Department of Defense award the Joint Enterprise Defense Infrastructure (JEDI) cloud computing contract to Microsoft Corp. An unsuccessful offeror, Amazon Web Services, filed a protest with the Court of Federal Claims challenging the award. The court granted Amazon’s request for a preliminary injunction, enjoining performance of the JEDI contract. DoD requested a remand to take corrective action. The court granted the request. Following correct action, DoD confirmed the award to Microsoft.
Amazon then filed an amended complaint. In its amended complaint, Amazon alleged that President Trump had pressured DoD to not award the award the JEDI contract to Amazon. Thus, the award to Microsoft was the product of bias, bad-faith, and improper influence.
The government and Microsoft moved to dismiss Amazon’s Presidential bias theory. They argued that Amazon had waived this argument under Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) because Amazon knew of this argument before the first award decision but did not raise it in a pre-award protest.
The court noted that the Blue & Gold waiver doctrine typically only applies to protests challenging the terms of a solicitation. But the government argued that Federal Circuit had extended the waiver doctrine to any case where an interested party is aware of a basis to challenge terms of a competition—even if it is not strictly a challenge to solicitation terms—and failed to raise that challenge before the close of bidding.
The court, however, rejected this argument. After carefully reviewing the Federal Circuit’s decisions, the court reasoned that the Blue & Gold doctrine had never been applied to a protest challenging an alleged biased award decision based on allegations not directly related to the terms of the or structure of the solicitation itself. Even if the court were convinced that an extension of the Blue & Gold doctrine were warranted, it was not empowered to stray from precedent.
Additionally, the court reasoned, the Blue & Gold doctrine did not apply to this situation. In its amended complaint, Amazon alleged that DoD’s corrective action was biased. Amazon was therefore challenging the execution of the corrective action, not its terms or structure of the procurement. A challenge to the execution of a corrective action could not be mounted until the corrective action was, in fact, executed.
But the government and Microsoft argued that Amazon was aware of the alleged bias before any award decision. Thus, Amazon’s true intention was to challenge the procurement process, not merely the execution of the corrective action.
The court noted that the government’s and Microsoft’s arguments was premised on the notion that Amazon never actually believed that DoD would conduct an unbiased corrective action. The court, however, determined that evaluating what Amazon believed would require the court to look beyond the factual allegation in the complaint, which would contravene the standard of review for motions to dismiss.
Microsoft argued that there is an exception to the standard of review for motions to dismiss when the allegations in a complaint are contradicted matter of which the court may take judicial notice. The government asked the court to take judicial notice of a blog post from Amazon in which the company had objected to the corrective action on the grounds that it was likely to result in another award based on politics and improper influence.
Nevertheless, the court found that the blog post, taken in context, did not contradict the allegations in the complaint. That blog post demonstrated that Amazon disagreed with the agency’s evaluation. Despite its reservations, this did not indicate that Amazon necessarily believed the agency would not act in good faith.
Amazon is represented by Kevin P. Mullen, J. Alex Ward, Sandeep N. Nandivada, Caitlin A. Crujido, Aissandra D. Young, Andrew S. Tulumello, Daniel P. Chung, Theodore J. Boutrous, Jr., Richard J. Doren, and Eric D. Vandevelde. The intervenor, Microsoft, is represented by Robert S. Metzger, Jeffrey M. Chiow, Neil H. O’Donnell, Lucas T. Hanback, Stephen L. Bacon, Deborah N. Rodin, Cassidy Kim, Eleanor M. Ross, Abid R. Qureshi, Roman Martinez, Anne W. Robinson, Dean W. Baxtresser, Genevieve Hoffman, Riley Keenan, and Margaret Upshaw. The government is represented by Anthony F. Schviattetti, Jeffrey Bossert Clark, Robert E. Kirschman, Jr., Patricia M. McCarthy, and Reta Bezak of the Department of Justice as well as Michael G. Anderson and Benjamin M. Diliberto of the Service & Pentagon Force Protection Agency and Tyler J. Mullen of the Defense Information Systems Agency.
