The COFC’s Oracle Opinion is a Master Class in How Not to Handle Conflicts of Interest

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By Craig LaChance, Senior Editor PubKGroup

In stories for preschoolers, the plot point typically involves the main character (usually a child or anthropomorphized animal) making a selfish or careless decision—e.g., playing with something they have been told not to touch, eating something forbidden. Negative consequences cascade from the bad decision until, at the brink of crisis, an adult—like The Man In The Big Yellow Hat in the Curious George stories—steps in to avert a catastrophe. The main character regrets their choices, and the reader receives an object lesson in what not to do.

The Court of Federal Claims’ recent opinion in Oracle America, Inc. v. United States, reads like one of these preschool stories. The case, which has received substantial media attention, involves a protest of DoD’s $10 billion Joint Enterprise Defense Infrastructure (JEDI) Cloud procurement. Four massive tech companies, including Oracle and Amazon, bid on the contract to provide cloud services. DoD, however, eliminated Oracle from the competitive range. Oracle protested with the COFC, arguing that (1) DoD’s decision to award a single rather than multiple contracts was unreasonable and favored Amazon, and (2) the procurement was tainted by conflicts of interests.  The court denied the protest, finding that a single award was warranted, Oracle was not prejudiced by errors in the procurement, and the alleged conflicts did not impact the procurement.

The opinion is dense but compelling. As one reads through it, a star (of sorts) emerges: an individual, Deap Ubhi, whose questionable career decisions likely precipitated Oracle’s protest. Ubhi worked for Amazon until 2016 but then took a job with DoD, working on the JEDI procurement. After a year with DoD, he went back to Amazon. That, by itself, is a bad look. But what makes Ubhi memorable is how flagrantly he flouted the conflict rules. Like the protagonist in a preschool story, he provides an evocative illustration of how not to handle conflicts.

While at DoD, Ubhi worked on market research for the JEDI procurement. He was the point of contact for industry representatives, and he drafted and edited some of the initial procurement documents. Moreover, he was a vociferous proponent of a single award approach, which, as Oracle alleged in its protest, potentially favored Amazon.

Around the time he began work on the JEDI procurement, Ubhi began negotiations to rejoin Amazon. He did not tell DoD about the negotiations, and he did not recuse himself from the JEDI procurement. To make matters worse, he lied to Amazon during the negotiations, stating that the DoD ethics officer had told him he could discuss employment with the company, and that he was not prohibited from working on specific matters if hired by Amazon. Ubhi ultimately accepted a position with Amazon, but he did not mention the Amazon job to DoD when he resigned. Instead, he lied, claiming that he was leaving because Amazon was about acquire a company he had founded.

What’s more, Ubhi did all of this with a boorish panache. He was an avid user of the JEDI Slack account and apparently sent several messages “loud[ly] advoca[ting] for a single award approach.”  But Ubhi was also bit of a Slack troll, using instant messages to express “strong, sometimes coarsely-expressed opinions.” Indeed, reviewing Ubhi’s Slack messages prompted the court to include this world-weary footnote in the opinion:

The court reviewed hundreds of pages of Slack message—generally an unedifying exercise, except as a cautionary tale about ill-considered use of instant messaging. One would have thought that in this litigious culture, people would be less promiscuous about sharing every stray mental hiccup. Mr. Ubhi, in particular, contributed any number of banal, puerile, profane and culinary [?!] messages.

Thus, in addition to promoting a single award, it appears Ubhi used Slack to share dirty jokes and recipes.

The JEDI CO determined that Ubhi had violated his ethical obligations and referred the matter to the DoD Inspector General. The CO concluded, however, that Ubhi’s conflicts did not taint the procurement because he only had a minor role in the acquisition process, did not have access to competitively useful information, and apparently did not disclose confidential information to Amazon when he rejoined the company. The court agreed, stating that on the train headed to single award, Ubhi was merely a passenger, not a conductor. The court discounted Ubhi’s “self-promoting, fabulist, and often profanity-laced descriptions of his own role” in the procurement.

There are undoubtedly lessons to be drawn from this fiasco. Ubhi’s conduct furnishes vivid examples of things government employees should not do when accepting a job with a private contractor: Don’t neglect to tell the government that you’re negotiating with a contractor. Don’t lie about your reasons for leaving the government. Don’t lie to your new employer about the work you did for the government.

But the court noted that DoD contributed to the conflicts problem through “lax oversight.” At the very least, the agency should have monitored the JEDI Slack account, not only to rein in Ubhi’s buffoonery but also to control the internal discussions around a single award. The court also found that Amazon “was too prepared to take at face value assurances by Mr. Ubhi that he complied with his ethical obligations.” The company was preparing to bid on the JEDI procurement while hiring someone who was working on the procurement. It should have done a little more due diligence with respect to Ubhi.

Ultimately, this was a competition between tech behemoths for a $10 billion contract. It was bound to result in a protest. But Ubhi’s behavior and Amazon’s and DoD’s carelessness made this protest much more complicated. In the world of federal procurement, there is no Man In A Big Yellow Hat to save you from your irresponsible decisions. Instead, everyone just ends up paying millions in litigation costs.