GOOGLE, INC. et al v. USA

Filing 102

REDACTED DOCUMENT, filed by USA redacting 96 Reply to Response to Motion. (Krafchek, Christopher)

Case 1:10-cv-00743-SGB Document 96

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No. 10-743C
(Judge Braden)

Agreed Upon
Redacted Version

(BID PROTEST)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

GOOGLE, INC.,
and
ONIX NETWORKING CORPORATION,
Plaintiffs,
v.
THE UNITED STATES,
Defendant,
and
SOFTCHOICE CORPORATION,
Defendant-Intervenor.

DEFENDANT'S REPLY IN SUPPORT OF OUR CROSS MOTION FOR
JUDGEMENT UPON THE ADMINISTRATIVE RECORD AND RESPONSE
TO PLAINTIFF’S RE-STATED MOTION FOR JUDGMENT ON THE
RE-FILED AND UPDATED ADMINISTRATIVE RECORD

TONY WEST
Assistant Attorney General
MICHAEL F. HERTZ
Deputy Assistant Attorney General
KIRK T. MANHARDT
Assistant Director

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OF COUNSEL:
SARA BIENKOWSKI
Trial Attorney
Commercial Litigation Branch
Civil Division
Department of Justice
SHERYL RAKESTRAW
Attorney Advisor
Departmetn of the Interior

June 15, 2011

CHRISTOPHER L. KRAFCHEK
Trial Attorney
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
Attn: Classification Unit, 8th Floor
P.O. Box 480
Ben Franklin Station
Washington, DC 20044
Telephone: [phone]
Attorneys for Defendant

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TABLE OF CONTENTS
PAGE(S)
STATEMENT OF THE CASE....................................................................................................... 4
COUNTER-STATEMENT OF FACTS. ........................................................................................ 6
ARGUMENT.................................................................................................................................. 8
I.

Far Part 6 Was Not Applicable To DOI’s FAR Part 8 Procurement. ..................... 8

II.

Plaintiffs Cannot Establish That They Will Suffer Prejudice Because
Google Refuses To Satisfy DOI’s Minimum Security Requirements. ................... 9

III.

Federal Agencies Are Not Required To “Justify And Approve” Internal,
Unpublished Policy Decisions. ............................................................................. 13

IV.

DOI Did Not Pre-Select Microsoft BPOS-Federal. .............................................. 14

V.

DOI’s Assistant Secretary For Policy, Management, And Budget
Possesses The Requisite Authority To Sign Standardization Decisions............... 16

VI.

Plaintiffs Raised The FISMA Issue And Google Apps For Government
Is Not, And Has Never Been, FISMA Certified. .................................................. 17

VII.

Plaintiffs Are Not Entitled To A Permanent Injunction. ...................................... 18
A.

Plaintiffs Have Not Demonstrated Success On The Merits...................... 18

B.

Plaintiffs Have Not Demonstrated Irreparable Harm................................ 18

C.

The Balance Of Harm Does Not Favor Injunctive Relief......................... 22

D.

A Permanent Injunction Is Not In The Public Interest.............................. 23

CONCLUSION............................................................................................................................. 23

-i-

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TABLE OF AUTHORITIES
CASES
PAGE(S)
AR Sales Co., Inc. v. United States,
49 Fed. Cl. 621 (2001). ..................................................................................................... 21
Amazon.com, Inc. v. Barnesandnoble.com, Inc.,
239 F.3d 1343 (Fed. Cir. 2001)......................................................................................... 22
Bannum, Inc. v. United States,
404 F.3d 1346 (Fed. Cir. 2005)......................................................................................... 11
CHE Consulting v. United States,
552 F.3d 1351 (Fed. Cir. 2008)......................................................................................... 10
eBay, Inc. v. MercExchange, L.L.C.,
547 U.S. 388 (2006)........................................................................................ 19, 20, 21, 22
Gadsden v. United States,
78 F.Supp. 126 (Ct. Cl. 1948)........................................................................................... 15
Google, Inc. v. United States,
95 Fed. Cl. 661 (2011). ................................................................................................... 5, 6
Information Science Corp. v. United States,
80 Fed. Cl. 759, 798 (2008). ............................................................................................. 19
Kalvar Corp. v. United States,
211 Ct. Cl. 192, 543 F.2d 1298 (1976), cert. denied, 434 U.S. 830 (1977). .................... 15
Keco Industries v. United States,
492 F.2d 1200 (Ct. Cl. 1974). ........................................................................................... 21
Krygoski Constr. Co. v. United States,
94 F.3d 1537 (Fed. Cir. 1996)........................................................................................... 15
Minor Metals, Inc. v. United States,
38 Fed. Cl. 379 (1997). ..................................................................................................... 19
Monsanto Co. v. Geertson Seed Farms,
130 S. Ct. 2743 (2010).......................................................................................... 19, 20, 21
-ii-

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Morris v. United States,
39 Fed. Cl. 7 (1997). ......................................................................................................... 15
OAO Corp. v. United States,
49 Fed. Cl. 478 (2001). ..................................................................................................... 19
PGBA, LLC v. v. United States,
60 Fed. Cl. 196 aff'd, 389 F.3d 1219 (2004)..................................................................... 19
Savantage Financial Services, Inc v. United States,
595 F.3d 1282 (Fed. Cir. 2010)................................................................................. 2, 3, 10
Sierra Military Health Serv. v. United States,
58 Fed. Cl. 573 (2003). ..................................................................................................... 19
T&M Distributors, Inc. v. United States,
185 F.3d 1279 (Fed. Cir. 1999)......................................................................................... 15
Torncello v. United States,
681 F.2d 756 (Ct. Cl. 1982). ............................................................................................. 15
Weeks Marine, Inc. v. United States,
575 F.3d 1352 (Fed. Cir. 2009)......................................................................................... 10
Zenith Radio Corp. v. United States,
710 F.2d 806 (Fed. Cir. 1983)........................................................................................... 19
STATUTES
5 U.S.C. § 552............................................................................................................................... 11
5 U.S.C. § 706 .............................................................................................................................. 11
18 U.S.C. § 1831, et seq................................................................................................................ 11
18 U.S.C. § 1905........................................................................................................................... 11
41 U.S.C. § 253(a). ......................................................................................................................... 5
41 U.S.C. § 253(a)1A. .................................................................................................................... 3
41 U.S.C. § 3304............................................................................................................................. 3
48 C.F.R. § 52.212-4(l)................................................................................................................. 21
-iii-

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FAR 8.4......................................................................................................................................... 14
FAR 8.405-6. .................................................................................................................................. 5

MISCELLANEOUS
http://defensetech.org/2011/06/02/usg-officials-gmail-hacked/. .................................................. 10
http://www.nextgov.com/nextgov/ng_20110510_8265.php. ....................................................... 12

-iv-

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BID PROTEST
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GOOGLE, INC.,
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and
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ONIX NETWORKING CORPORATION,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant,
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and
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SOFTCHOICE CORPORATION,
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Defendant-Intervenor.
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*******************************************

(No. 10-743C)

(Judge Braden)

DEFENDANT=S REPLY IN SUPPORT OF OUR CROSS MOTION FOR
JUDGMENT UPON THE ADMINISTRATIVE RECORD AND RESPONSE
TO PLAINTIFF=S RE-STATED MOTION FOR JUDGMENT ON THE
RE-FILED AND UPDATED ADMINISTRATIVE RECORD
Despite the best of efforts of the plaintiffs, Google, Inc. (AGoogle@) and Onix Networking
Corporation (AOnix@), to confuse the facts, law, and issues in this case, the critical question
before the Court is whether Google=s product, Google Apps for Government, can meet the
Department of the Interior=s (ADOI@) rationally articulated minimum-security requirements.
Plaintiffs concede that Google still wholly refuses to provide a service that satisfies DOI=s
minimum-security requirements. Pl. Rev. MJAR at 15, fn. 4. Rather than address the issue or

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explain why a Federal agency must consider a product that does not meet its minimum security
requirements, plaintiffs have gone through the record to locate any fact to support its inane
argument that DOI engaged in a conspiracy to award a contract to Microsoft, while allegedly
denying plaintiffs a meaningful opportunity to compete.
As we explain below, the record conclusively establishes that DOI elected to issue a
brand-name procurement pursuant to Federal Acquisition Regulation (AFAR@) Part 8 for
Microsoft Business Online Suite-Federal (ABPOS-Federal@) only after Google indicated it would
not provide a physically and logically dedicated server located within the United States.
Moreover, the record establishes that DOI discussed its cloud requirements with Google as early
as June, 2009, and more specifically its requirement for a physically and logically dedicated
server located within the continental United States to Google as early as February, 2010. Yet,
now plaintiffs contend that DOI=s determination of its minimum-security requirements is a Apost
hoc rationalization.@ Pl. Rev. MJAR at 5. Notwithstanding this contention, the record
demonstrates that DOI consulted industry, engaged in full and fair market research, relied upon
its own internal expertise, and made a rational, informed decision when determining its
minimum-security requirements.
Google=s steadfast refusal to provide a server that is physically and logically separated
from its other servers and located in a data center within the continental United States leads to
the inescapable conclusion that DOI=s procurement action cannot possibly prejudice the
plaintiffs. The law of this circuit is clear that a contractor may not dictate the manner in which
an agency meets its minimum needs. Savantage Financial Services, Inc v. United States, 595

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F.3d 1282, 1286 (Fed. Cir. 2010) (“Savantage II”). Accordingly, even if we were to assume for
the sake of argument that everything plaintiffs contend is accurate, which it is not, plaintiffs
cannot establish prejudice in this matter because their entire case hinges upon whether DOI
legitimately determined its minimum-security requirements. Perhaps realizing that a plaintiff has
no business challenging an agency=s determination of its minimum requirements, Savantage II,
595 F.3d at 1286, plaintiffs bury their challenge to DOI=s determination of its minimum-security
needs on page 18 of their revised MJAR when they argue that Google=s cloud offering “that
satisfies all of DOI=s legitimate needs” is just as technically capable as BPOS-Federal. Pl. Rev.
MJAR at 18 (emphasis added).
Additionally, plaintiffs repeat their earlier arguments, still without support, that two
standardization decisions issued by DOI violate FAR Part 6 and the Competition In Contracting
Act (ACICA@), 41 U.S.C. ' 253(a)1A.1 Pl. Rev. MJAR, 11 - 18. Plaintiffs accuse the
Government of Aattempting to divert the Court=s attention from the >gravamen= of this protest to
the flak and publicity over the FISMA certification issue . . . which is a red herring in the context
of the merits of this case.@ Id. at 3. As we have previously explained, and will again demonstrate
below, the plaintiffs initially raised this issue in their original complaint and amended complaint,
and continued to trumpet their argument until it was pointed out that Google Apps for
Government did not have, and in fact has never received, certification pursuant to the Federal
Information Security Management Act (“FISMA”). Accordingly, there is no merit to plaintiffs=
assertion that the Government has made this issue a “bone of contention.” Id. at 15.
1

CICA has been re-codified as 41 U.S.C. ' 3304.
3

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Finally, plaintiffs have consistently ignored the factual sequence of events in this case,
taken comments and actions out of context, misstated our arguments, and, inappropriately and
without hard facts or evidence, accused DOI of engaging in bad faith. All of plaintiffs=
contentions are without merit and the Court should dismiss the complaint and amended
complaint, terminate the preliminary injunction currently in place, and grant our motion for
judgment upon the administrative record.
STATEMENT OF THE CASE
On October 29, 2010, Google, Inc. (AGoogle@) and Onix Networking Corporation
(AOnix@) filed a pre-award bid protest in this Court, challenging an August 30, 2010 Request for
Quotation No. 503786 (ARFQ@) by the Department of the Interior (ADOI@) to provide Ahosted
email and collaboration services and [Interior's] supporting >Limited Source Justification.=@
Compl. at 1-2. Along with the complaint, plaintiffs filed a motion for a temporary restraining
order and sought a preliminary injunction enjoining DOI from proceeding with the procurement
under challenge. On November 19, 2010, we filed an opposition to plaintiffs= motion for a
preliminary injunction (Adefendant=s opposition@). On December 3, 2010, plaintiffs filed a reply
to defendant=s opposition and motion for judgment upon the administrative record (Aplaintiffs=
MJAR@). On December 17, 2010, defendant filed a cross-motion for judgment upon the
administrative record and response (Adefendant=s MJAR@).
On December 30, 2010, plaintiffs filed an amended two-count complaint. In Count I,
plaintiffs alleged that DOI violated the Competition In Contracting Act, 41 U.S.C. ' 253(a) and
the Federal Acquisition Regulation (AFAR@) 6.304 and 6.305 when it issued a justification for a

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modification to a pre-existing contract for enterprise software services held by Dell Marketing,
LLC (ADell@) as a proof of concept action and when it issued two standardization decisions on
July 15, 2010 to create an internal policy that Microsoft Business Online Suite Federal (ABPOSFederal@) and Microsoft Desktop and Server Software would be the agency standard. Amend.
Compl. at 23. Plaintiffs further alleged that the limited source justification, issued with a
Request for Quotation No. 503873 (ARFQ@), violated the requirement for Afull and open
competition in 41 U.S.C. ' 253(a)@ and that it failed to comply with FAR 8.405-6 because other
responsible sources can meet, or be modified to meet, DOI=s requirement. Id at 24.
In Count II, plaintiffs alleged that DOI=s decisions in justifying the modification to Dell=s
contract and two standardization decisions were arbitrary, capricious, an abuse of discretion, and
contrary to law. Id. On December 31, 2010, plaintiffs filed a reply and response to defendant=s
cross-motion for judgment upon the administrative record.
On January 3, 2011, the Court issued an opinion and order enjoining DOI from
Aproceeding with or awarding a contract to implement a Microsoft Business Productivity Online
Suite-Federal Messaging solution, pursuant to RFQ No. 503786 or any related procurement,
solicitation, task order, or activity, including proceeding with the June 14, 2010 Amendment
Modification 0003 to Contract No. GS35F4072D/NBCF09382.@ Google, Inc. v. United States,
95 Fed. Cl. 661, (2011) (AGoogle I@). In conclusion, the Court noted that it Amade no judgment
as to whether Interior's basis for this procurement was rational or whether the procurement was
conducted in a manner that was arbitrary and capricious.@ Id. at 680. The Court remanded the
matter to DOI Afor additional investigation or explanation.@ Id. On or about January 10, 2011,

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the Court returned the administrative record and directed DOI to file a status report within 90
days of the Court=s order.
On March 4, 2011, we filed a motion to terminate the stay of proceedings, dissolve the
Court=s preliminary injunction, and issue a schedule to resume briefing on the merits of the case
(Adefendant=s motion to dissolve@). On April 8, 2011, plaintiffs filed a response to our motion to
dissolve (“plaintiffs‟ response to defendant=s to dissolve”). On April 26, 2011, we filed a reply to
plaintiff=s response to our motion to dissolve. On May 3, 2011 the Court partially granted our
motion to dissolve, terminating the remand to DOI and stay of proceedings. The Court directed
that the January 3, 2011, preliminary injunction remain in full force and effect.
On May 11, 2011, the Court issued a scheduling order establishing dates for filing the
administrative and to conclude briefing on the merits of the case. On May 27, plaintiffs filed
their revised MJAR.
COUNTER-STATEMENT OF FACTS
In their revised MJAR, plaintiffs proffer a “statement of facts” that is, in reality, an
additional argument. See Pl. Rev. MJAR, at 5 - 8.2 Seizing upon the fact that DOI
representatives discussed pricing with Microsoft on February 17, 2010, created talking points
prior to meeting with those same Microsoft representatives on July 19, 2010, and on that same
day noted that DOI was committed to a particular product, as evidenced in the July 15, 2010,
standardization decision, plaintiffs argue that the record supports a finding that DOI made a solesource selection of Microsoft BPOS-Federal in 2009.

2

For reference, we previously submitted statements of fact in both our opposition brief,
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The only conclusion that should be drawn from Mr. Jackson=s February 17, 2010, are that
Mr. Jackson discussed pricing with Ms. Carlson and did not want a “hard sell” from Microsoft.
AR1778.2. The record does not reflect what kind of “pricing” was being discussed between DOI
and Microsoft on or about February 17, 2010. Id. However, even if DOI and Microsoft were
discussing pricing for the unified messaging service, such discussion would not be dispositive in
this matter and it would not support a finding that DOI made an unlawful sole-source award at
some later, unspecified date. Indeed, the record reflects that DOI discussed pricing with Google
prior to the standardization decision. See AR59, (June 17, 2009, email from Google to DOI with
links to Google=s website that demonstrate compliance with Microsoft Exchange), AR150 (July
9, 2009, meeting between DOI and Google to generally discuss unified messaging service), and
AR 4 (May 17, 2010, Google letter advising DOI that its “pricing is less than

per

user/year.”). Accordingly, even if DOI and Microsoft discussed pricing for the unified
messaging service, it lends no support to plaintiffs‟ contentions because DOI treated all
interested parties equally.
Moreover, the fact that DOI created talking points and mentioned its commitment to
Microsoft BPOS-Federal, a product rather than a particular offeror, also does not support a
finding that DOI made an unlawful sole-source decision in 2009. In fact, the July talking points
were created nearly four months after Google initially refused to meet DOI=s minimum-security
requirements at a February 18, 2010 meeting and over one month after Google confirmed its
refusal to meet DOI‟s minimum-security needs at the June 9, 2010, meeting. See AR150, 152.

p. 3-10 [Docket #24] and our MJAR, pp. 4-15 [Docket #39].
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As the following excerpt from Google‟s June 17, 2010, letter to DOI confirms, Google disagreed
with, and refused to meet, DOI=s minimum-security requirements:
Specifically, during the meeting, DOI representatives expressed a
preference that the messaging system's physical computing
infrastructure be operated solely for the DOI (as a “private
cloud”) even though this preference was not stated in the DOI
letter, would dramatically decrease competition and will result in
increased costs to the DOI. It became apparent to Google that the
DOI intends to convert this preference into an absolute requirement
in the impending Solicitation.
AR50 (emphasis added).
The “facts” in this case demonstrate that DOI began to assess implementation of a unified
messaging service for its 13 bureaus by conducting extensive market research in 2007. AR175.
DOI held talks with both Microsoft and Google and asked, essentially, if each company could
meet DOI=s requirements. Microsoft said it could and endeavored to work with DOI to create a
unified messaging service that operates on a physically and logically dedicated server and is
located within the continental United States. Google, on the other hand, flatly refused to satisfy
DOI‟s minimum security requirements and has consistently argued with DOI‟s determination of
its minimum-security needs. These are the facts in the record and they demonstrate that DOI‟s
actions were rational and should be sustained by this Court.
ARGUMENT
I.

FAR Part 6 Was Not Applicable To DOI’s FAR Part 8 Procurement
As an initial matter, any suggestion by plaintiffs that DOI violated FAR Part 6 in this

procurement is wholly without merit. As we have previously demonstrated, FAR Part 6 does not
apply to Part 8 procurements. Def. Mot. Dissolve, at 14-15. Moreover, the record establishes
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that DOI decided to utilize Part 8 procedures prior to the issuance of the standardization
decisions. AR2202. Plaintiffs have never addressed this fact or responded to our demonstration
that FAR 8.405-6(a) specifically provides that “[o]rders placed under Federal Supply Schedules
are exempt from the requirements in Part 6.” Consequently, plaintiffs have waived any objection
to our argument and, in any event, are asking this Court to render an opinion that would be
legally erroneous.
II

Plaintiffs Cannot Establish That They Will Suffer Prejudice Because Google
Refuses To Satisfy DOI’s Minimum Security Requirements
As of the date of this brief, Google still refuses to offer a physically and logically

dedicated server located within the continental United States that will satisfy DOI‟s rationally
concluded minimum requirements. Pl. Rev. MJAR, p. 5, fn. 4. Accordingly, plaintiffs cannot
establish that they will suffer prejudice if DOI is allowed to proceed with this procurement
because even if the Court were to issue a permanent injunction and DOI were to take corrective
action by conducting additional market research and performing a new risk assessment, these
actions will not change DOI‟s determination that a physically and logically dedicated server is
more secure than a server that is connected to world-wide data centers. Both common sense and
the analysis of expert consultants at

tell us that limiting access to a server enhances

security.3 AR657. The law of this circuit holds that a Federal agency determines its minimum
requirements and it need not have a historical precedent of failure in order to consider risk.
3

Recent news reports indicate that Google‟s email service, Gmail, was hacked through
“phishing,” “Phishing” is the process by which hijackers steal passwords by malicious software
installed on victims‟ computers or through victims‟ responses to e-mails from malicious hackers
posing as trusted sources. See http://defensetech.org/2011/06/02/usg-officials-gmail-hacked/
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Savantage II, 595 F.3d at 1286 (Fed. Cir. 2010), see also Weeks Marine, Inc. v. United States,
575 F.3d 1352, 1370 (Fed. Cir. 2009) citing CHE Consulting v. United States, 552 F.3d 1351,
1355 (Fed. Cir. 2008)).
Here, despite well-settled precedent, plaintiffs seek to have this Court second guess
DOI‟s determination of its minimum needs, particularly the need for a Federal-only cloud
environment. The record in this case, however, establishes that DOI‟s determination of its
minimum needs is rationally based upon extensive market research, valid security concerns, and
by methodical analysis of: 1) what data would be housed in the cloud; 2) the sensitivity of that
data; 3) its risk tolerance, and 4) the benefits and liabilities of each cloud model. See
AR158-168. Throughout this process, the agency was informed by extensive market research
conducted by itself and third parties. AR175-185, 167-747.
At the end of this research, and after concluding an in-depth risk assessment, DOI
established the attributes of its cloud. AR168. Two of these attributes were that the cloud‟s
infrastructure must be logically and physically dedicated to DOI or Federal agencies and that the
hosting data centers must be located within the continental United States. AR168. Because DOI
properly determined its minimum requirement for a physically and logically separated server,
located within the continental United States, plaintiffs would not be eligible for award because
Google has consistently refused to satisfy these minimum security requirements. Absent a
showing of prejudice, a protester cannot prevail. The APA instructs that “due account shall be
taken of the rule of prejudicial error when determining whether to set aside any unlawful agency
decision.” 5 U.S.C. § 706. The Federal Circuit has held that to establish prejudice, a plaintiff

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“must show that there was a „substantial chance‟ it would have received the contract award but
for the errors” that the Court determines the agency made. Bannum, Inc. v. United States, 404
F.3d 1346, 1353 (Fed. Cir. 2005).
DOI insisted upon a dedicated cloud because it wanted to ensure a uniformly high
standard for the cloud‟s security and a low risk that sensitive information would be released
outside of the Federal Government. AR183. By restricting cloud membership to Federal
agencies, DOI can count on the other users meeting basic Federal security requirements and be
certain that other users on the cloud will have passed background checks, completed basic
information security training, and been instructed to follow Federal data safeguards. Federal
agency cloud users will also be subject to Federal information disclosure laws such as the Federal
Trade Secrets Act 18 U.S.C. §1905, the Economic Espionage Act 18 U.S.C. § 1831, et seq., and
FOIA 5 U.S.C. § 552.
Moreover, notwithstanding plaintiffs‟ challenge to the rationality of DOI‟s determination
that state and local governments would not “face the same potential impacts from security issues
that DOI would face, AR784, Mr. Alan Davidson, Google's director of public policy, recently
gave a prepared statement to the Senate Judiciary Privacy, Technology, and the Law
Subcommittee in which he addressed privacy and technology and said “the patchwork of state
law in this area [privacy and security] leads to confusion and unnecessary cost. Congress should
therefore promote uniform, reasonable security principles, including data breach notification
procedures.” See http://www.nextgov.com/nextgov/ng_20110510_8265.php. This statement is in
conflict with plaintiffs‟ argument that DOI lacked a rational basis for concluding that Google Apps

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for Government does not meet its minimum security requirements because it includes state and local
governments, rather than DOI-only or Federal-only. Consequently, regardless of the arguments of

counsel for plaintiffs in this matter, Google is on record conceding that DOI‟s security concerns
are valid because state law, at least in regards to privacy and security, is a “patchwork . . . that
leads to confusion and unnecessary cost.” Thus, plaintiffs‟ legal argument that DOI‟s minimum
security requirements lack a rational basis has been contradicted by Google itself and,
accordingly, the Court should reject this wholly unsupportable argument.
Additionally, DOI rationally concluded that Google Apps for Government cannot meet
the minimum requirements spelled out in the RFQ. DOI fully and fairly considered Google
products as a viable, competitive alternative to Microsoft BPOS-Federal until Google indicated
that it could not and would not meet the agency‟s minimum needs. AR150-152, 783-785. The
record reflects that DOI met with Google prior to making the challenged standardization decision
or approving the justification to conduct a brand-name procurement. In fact, DOI discussed
Google Apps for Government with Google in numerous meetings, letters, and emails. See
AR3-6, 50-117, 1004-1038. The central theme throughout all these exchanges is that Google is
unable and unwilling to meet DOI‟s minimum requirements. In a February 18, 2010 meeting,
Google representatives indicated that Google would not offer a single tenant solution. AR150.
Google repeated this refrain in a meeting on June 9, 2010, where it also tried to convince DOI
that its government-wide cloud would meet its needs. AR151. In its June 17, 2010 letter,
Google indicated that it “intends to offer messaging services hosted in a Government-only cloud”
and complained that restricting the solicitation to a private cloud “would arbitrarily exclude

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Google from the competition.” AR50.
Similarly, in its June 24, 2010 email, Google asserted that “the DOI‟s security
requirements can be stated . . . without requiring a particular infrastructure or computing delivery
model,” such as a dedicated cloud. AR115. Finally, contrary to plaintiffs‟ contentions, DOI also
considered Google Apps for Government in its market research. See AR169-172, 279-281,
625-632, 664-674, 678-687, 763-764, 783-785. None of this research even remotely suggested
that Google can or would meet DOI‟s minimum security requirements. To the contrary, it
confirms that Google‟s proposed Government cloud would be open to State and local entities as
well as Federal agencies. AR784.
III.

Federal Agencies Are Not Required To “Justify And Approve” Internal,
Unpublished Policy Decisions
When a Federal agency makes a policy determination and issues a document to reflect that

policy, such as a standardization decision, it is not required to justify and approve or issue a
limited source justification. The informational requirements found in CICA, and as implemented
in the FAR, are not applicable at the time the standardization decision is made and the decision is
not subject to immediate challenge. In fact, those requirements do not become actionable until
the agency engages in a triggering event, such as the issuance of a solicitation or request for
quotations. Contrary to plaintiffs‟ arguments, we have not asserted or otherwise claimed that a
standardization decision is "beyond the scrutiny of the Court." Pl. Rev. MJAR at 4, fn. 3.
Plaintiffs mistakenly claim that our foregoing explanation is fundamentally flawed and
raises the specter that agencies will have "free reign to avoid the mandates of CICA and FAR
Subpart 6.3 by merely calling any document that identifies a need and specifies a product or
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vendor a 'standardization decision.'" Id. First, plaintiffs' are wrong because they ignore that
neither CICA nor the FAR require Federal agencies to issue a formal standardization decision
prior to issuing a new procurement through a solicitation or request for quotations. It follows
that if there is no statutory or regulatory requirement to document an internal policy decision,
such as the decision to standardize to a unified messaging service, there cannot be a statutory and
regulatory requirement to justify that determination. Second, plaintiffs also ignore that DOI
strictly adhered to the informational requirements in FAR § 8.4 when issuing the request for
quotations and the supporting limited source justification. Accordingly, in future cases, if an
agency issues a standardization decision, but fails to adhere to the applicable informational
requirements in either FAR Part 6 or FAR Part 8 when an issuing its follow-on procurement, that
hypothetical Federal agency will not be able to escape judicial review.
IV. DOI Did Not Pre-Select Microsoft BPOS-Federal
Plaintiffs continue to accuse high-ranking DOI officials of bad faith and pre-textual
conduct, see, e.g., Pls. Rev. MJAR at 6 (accusing DOI and Microsoft of cutting a secret deal in
2009), 12 (accusing DOI of “purposefully tailor[ing]” its minimum requirements), 19 (accusing
DOI of misleading Google officials). Notwithstanding the severity of these allegations,
plaintiffs offer no “hard facts” or “evidence” supporting their claims. Consequently, the Court
should categorically reject plaintiffs‟ contentions because DOI officials are entitled to the
presumption that they acted in good faith in carrying out their responsibilities. See T&M
Distributors, Inc. v. United States, 185 F.3d 1279, 1285 (Fed. Cir. 1999) (“[G]overnment
officials are presumed to act in good faith, and „it requires well-nigh irrefragable proof‟ to induce

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a court to abandon the presumption of good faith.”) (citing Kalvar Corp. v. United States, 211 Ct.
Cl. 192, 543 F.2d 1298, 1301-02 (1976), cert. denied, 434 U.S. 830 (1977)).
To overcome the presumption of good faith, a plaintiff must “present „clear and strong
proof of specific acts of bad faith,‟ demonstrating that a Government official acted with malice or
a specific intent to injure the plaintiff.” Morris v. United States, 39 Fed. Cl. 7, 15 (1997) (citing
Torncello v. United States, 681 F.2d 756, 771, (Ct. Cl. 1982)). The type of Government actions
that have been deemed to rise to the level of this specific intent include those “motivated alone
by malice;” Gadsden v. United States, 78 F.Supp. 126, 127 (Ct. Cl. 1948); “actuated by animus
toward the plaintiff;” Kalvar Corp., 543 F.2d at 1302 and those the government enters “with no
intention of fulfilling its promises;” Krygoski Constr. Co. v. United States, 94 F.3d 1537, 1545
(Fed. Cir. 1996). Certainly, plaintiffs have made no such showing.
In making its various arguments, plaintiffs ignore the fact that DOI also worked closely
with Google from as early as June 17, 2009 and continued to do so until February 18, 2010 when
Google indicated that it would not provide an isolated physical server or a DOI-only private
external cloud or a Federal-only community cloud. See AR59, 66, 150-151, 184. Remarkably,
notwithstanding Google‟s statement that it could not and would not meet DOI‟s requirements at
the February 18, 2010, DOI afforded Google another opportunity to participate in the
implementation of a unified messaging service on June 9, 2010. If plaintiffs‟ contentions has any
substance, common sense dictates that DOI would not have included Google in the process and
certainly would not have met with Google officials on multiple occasions. Based upon the
complete absence of any evidence supporting a finding of malice or intent to harm Google by

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pre-selecting Microsoft BPOS-Federal, this Court should hold that DOI did not pre-select the
Microsoft BPOS-Federal solution and reject plaintiffs‟ various claims to the contrary.
V.

DOI’s Assistant Secretary For Policy, Management, And Budget Possesses The
Requisite Authority To Sign Standardization Decisions
Plaintiffs again quibble with whether DOI‟s Assistant Secretary for Policy, Management

and Budget (“AS-PMB”) possesses the requisite authority to sign standardization decisions. Pl.
Rev. MJAR at 3, fn. 1. As we explained in our motion to dissolve, pages 8 – 9, and our reply in
support of our motion to dissolve, pages 7 – 10, the record fully supports the determination that
the AS-PMB is legally authorized to review and approve policy decisions, such as the two July 15,
2010 standardization decision. On November 12, 2002, former Secretary of the Interior Gale Norton
issued Order No. 3244, specifically making DOI‟s Chief Information Officer (“CIO”) “responsible
for all [information technology] expenditures” and charged to “develop a plan for approval of
information technology expenditures, including delegation of authority to bureau and office CIOs.”
AR1661-1662. DOI‟s CIO “receives administrative and management guidance from the [AS-PMB],

as well as the Deputy Assistant Secretary - Technology, Information, and Business Services.”
AR1992.
The two July 15, 2010 standardization decisions under challenge in this case were signed by
Bernard Mazer, DOI‟s current CIO. AR 748, 757. Thus, when the CIO submitted the two
standardization decisions to the AS-PMB, they were, for all legal and practical considerations, already
approved by the Secretary of the Interior. By submitting the two standardization decisions to the ASPMB, the CIO sought “administrative and management guidance from the AS-PMB,” as he is
required by DOI‟s organizational charts and Department Manuals. AR1992. Accordingly, to the

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extent that plaintiffs continue to contend that the AS-PMB is without authority to sign the two
standardization decisions, this argument is without merit because DOI‟s CIO, who received a proper
delegation of authority in 2002 from the Secretary of the Interior, reviewed and signed each document
prior to submission to the AS-PMB.

VI.

Plaintiffs Raised The FISMA Issue And Google Apps For Government Is Not, And
Has Never Been, FISMA Certified
As noted above, plaintiffs falsely accuse the Government of making Google‟s lack of

FISMA certification for its Google Apps for Government program a “bone of contention” in this
case. Plaintiffs, however, conveniently forget that this issue was initially raised in their pleadings
to support their contention that DOI allegedly acted without a rational basis when determining
that only Microsoft BPOS-Federal, a product that did not have FISMA certification at the time,
could meet its unique security requirements. See Pl. MJAR at 18, 29, 37, and 47.
The record in this case makes clear that Google‟s consistent statement that it received
FISMA certification for Google Apps for Government on July 22, 2010 is false. AR2036.
Moreover, as the record unequivocally establishes, not only was Google Apps for Government
not FISMA certified on July 22, 2010,

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Plaintiffs Are Not Entitled To A Permanent Injunction
A.

Plaintiffs Have Not Demonstrated Success On The Merits

Plaintiffs possess the burden, in the context of this bid protest, to demonstrate that DOI‟s
standardization decision and subsequent limited source justification issued with the RFQ were
improper. As we established in our opposition brief, MJAR, motion to dissolve, and reply in
support of our motion to dissolve, plaintiffs have not met this burden. DOI possessed a rational
basis to determine that its minimum requirements will only be satisfied by a DOI only or Federalonly cloud. AR183.
B.

Plaintiffs Have Not Demonstrated Irreparable Harm

Plaintiffs have not demonstrated irreparable harm. Plaintiffs only claim of irreparable
harm in this case has been that they will suffer “severe competitive disadvantage” because they
will be denied the opportunity to compete for the procurement. Pl. Rev. MJAR, 20. Contractors
compete, not for the sake of competition, but to win contract award and earn profits and,
therefore, alleging “loss of opportunity to compete,” is tantamount to an allegation of lost profit.
Accordingly plaintiffs allege economic harm. Economic harm alone, however, is not sufficient
to establish irreparable injury. See Minor Metals, Inc. v. United States, 38 Fed. Cl. 379, 381-82
(1997) (citing Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed. Cir. 1983))
(“economic harm, without more, does not seem to rise to the level of irreparable injury.”). This
Court has applied this principle in the bid protest context. See, e.g., Sierra Military Health Serv.
v. United States, 58 Fed. Cl. 573, 582 (2003) (quoting OAO Corp. v. United States, 49 Fed. Cl.
478, 480 (2001)) (“these potential losses are primarily monetary. While these losses may be

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substantial, they are not irreparable.”); Minor Metals, 38 Fed. Cl. at 381-82 (1997).
As plaintiffs note, however, this Court has departed from this well-established principle
in some bid protest cases. See Pl. Rev. MJAR. 20 (citing PGBA, LLC v. v. United States, 60
Fed. Cl. 196, 221, aff’d, 389 F.3d 1219 (2004) and Information Science Corp. v. United States,
80 Fed. Cl. 759, 798 (2008)). These decisions, however, have been called into question by the
Supreme Court‟s recent decisions in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)
and Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010).
In eBay, the Supreme Court held that the Federal Circuit‟s “general rule” in patent
disputes “that a permanent injunction will issue once infringement and validity have been
adjudged” was improper, and reiterated that, in deciding whether to award permanent injunctive
relief, courts must apply the traditional four-factor test applied by courts of equity. 547 U.S. at
392-93. In so holding the Supreme Court noted that it has long recognized that “a major
departure from the long tradition of equity practice [i.e., the traditional four-factor test] should
not be lightly implied” and that “nothing in the Patent Act indicates that Congress intended such
a departure.” Id. at 391-92 (citations omitted). If, in bid protest cases, lost profits and/or the loss
of the opportunity to compete in a fair and competitive bidding process amounts to irreparable
harm, then a protestor‟s success on the merits will nearly always result in a finding of irreparable
harm, and a portion of the four-factor injunctive relief test will effectively be eliminated. This is
precisely what the Supreme Court held was improper. Id. at 392-93. There is no evidence that
Congress, by limiting monetary remedies in bid protests, intended to create a presumption that
injunctive relief should issue in the event that plaintiff succeeds on the merits.

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Expanding upon its reasoning in eBay, the Supreme Court in Monsanto reaffirmed that
the “drastic and extraordinary remedy” of injunctive relief should not be “granted as a matter of
course.” 130 S.Ct. at 2761 (citation omitted). In Monsanto, the plaintiffs obtained injunctive
relief pursuant to the National Environmental Policy Act of 1969 (“NEPA”). See id. at 2556.
The district court in that case had noted that in “the run of the mill NEPA case,” injunctive relief
is the proper remedy for a NEPA violation, but that “„in unusual circumstances, an injunction
may be withheld, or, more likely, limited in scope[.]” Id. at 2556-57 (citations omitted). The
Supreme Court held that such statements “invert the proper mode of analysis” because they
“appear to presume that an injunction is the proper remedy for a NEPA violation except in
unusual circumstances.” Id. at 2557. As the Supreme Court noted, “[n]o such thumb on the
scale is warranted.” Id.
Importantly, the Supreme Court further held that “a perfunctory recognition that „an
injunction does not automatically issue‟ in NEPA cases” did not cure the district court‟s
erroneous analysis. Id. Rather, it “is not enough for a court considering a request for injunctive
relief to ask whether there is a good reason why an injunction should not issue; rather, a court
must determine that an injunction should issue under the traditional four-factor test[.]” Id.
Plaintiffs‟ allegation of irreparable harm ultimately amounts to no more than potential lost
profits, the type of injury that will be present in every “run of the mill” bid protest. Pl. Rev.
MJAR 20. Accordingly, in light of eBay and Monsanto, plaintiffs‟ claim of irreparable harm
should be rejected.
Additionally, in the Government contracting context, lost profits and other economic

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harm are too speculative to rise to the level of irreparable harm, even where protestors are limited
to bid preparation and proposal costs. Indeed, even if a protester succeeds upon the merits, there
is no guarantee it will obtain a Government contract. See, e.g., Keco Industries v. United States,
492 F.2d 1200, 1206 (Ct. Cl. 1974) (“there is no assurance that any bidder would have obtained
the award since the Government retains, in its discretion, the right to reject all bids without
liability.”). Furthermore, even if a protestor did have the right to receive a Government contract,
there is no guarantee that the contract would last any appreciable amount of time. Unlike
contracts between private parties, in nearly every Government contract, including the contract at
issue, the Government retains the right to terminate the contract for the Government‟s
convenience. E.g., 48 C.F.R. § 52.212-4(l); AR 67; see also AR Sales Co., Inc. v. United States,
49 Fed. Cl. 621, 630 (2001) (after a termination for convenience, the contractor “cannot recover
either lost profits it anticipated upon completion of the subject contract or lost profits it
anticipated from other, unrelated contracts.”). Therefore, even if plaintiffs are entitled to a
contract award, any “lost profits” as a result of that contract would be completely speculative.
Because plaintiffs have not demonstrated irreparable harm, they are not entitled to
injunctive relief. See eBay, 547 U.S. at 391 (“According to well-established principles of equity,
a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant
such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury”); cf.
Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001) (“a
movant cannot be granted a preliminary injunction unless it establishes both of the first two
factors, i.e., likelihood of success on the merits and irreparable harm.”) (emphasis in original)

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(citation omitted).
C.

The Balance Of Harm Does Not Favor Injunctive Relief

As demonstrated above, plaintiffs will not be able to show they will suffer any harm if the
Court dissolves the preliminary injunction. The Government, however, would suffer greatly
from a permanent injunction. The RFQ is “a fundamental component of DOI's strategy to
address ongoing operational issues that reduce DOI's information security posture, negatively
impact mission performance and result in excessive costs for delivering email services.” Def.
Oppn. Brief, Attach. A. p.6. The imposition of a permanent injunction will cause DOI
irreparable harm in mission performance. Plaintiffs have failed to show they will suffer any
harm, let alone irreparable harm, whereas DOI will suffer irreparable harm in the form of
continued spam attacks, numbering in the millions, and continued risk of mission failure. There
can be no real debate that that the balance of harms favors of DOI and, therefore, the preliminary
injunction is no longer appropriate in this case.
D.

A Permanent Injunction Is Not In The Public Interest

Plaintiffs have failed to show that the integrity of the procurement system has been
compromised by DOI‟s July 15, 2010 standardization decision or by the limited source
justification approach of the RFQ and there is a strong public interest in DOI securing the
information it is charged with handling and protecting, increasing the quality of its ability to
accomplish its mission through more efficient communication between the 13 bureaus that fall
within its ambit, and in reducing excessive costs and thereby saving taxpayer dollars..

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CONCLUSION
There is only one reason for the exclusion of plaintiffs from the competition to meet
DOI=s requirement for a cloud-based messaging service and that reason is Google clearly and
unequivocally refused to provide a physically and logically dedicated server located within the
continental United States that creates a cloud for either DOI or Federal-only agencies. Rather
than meet DOI=s requirement, Google contends that DOI should base its requirements upon the
services Google chooses to provide. Google=s business decision, and DOI=s refusal to modify its
requirement based upon Google=s representations, do not provide a valid basis for the
extraordinary act of issuance of a permanent injunction in this matter. Accordingly, this Court
should deny plaintiffs= revised MJAR, dismiss the complaint and amended complaint, and grant
our cross motion for judgment upon the administrative record.
Respectfully submitted,
TONY WEST
Assistant Attorney General
MICHAEL F. HERTZ
Deputy Assistant Attorney General
s/ Kirk T. Manhardt
KIRK T. MANHARDT
Assistant Director

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OF COUNSEL
SARAH BIENKOWSKI
Trial Attorney
Commercial Litigation Branch
Civil Division
Department of Justice
SHERYL RAKESTRAW
Attorney Advisor
Department of the Interior

s/ Christopher L. Krafchek
CHRISTOPHER L. KRAFCHEK
Trial Attorney
Commercial Litigation Branch
Civil Division
Department of Justice
1100 L Street, N.W.
Washington, D.C. 20005
Tel: [phone]
Fax: [phone]

June 15, 2011

Attorneys for Defendant

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