for what third-party software is available to be purchased, as well as what the terms and In addition, the RFP includes a document that is an enumerated list of 68 required Second, although the agency states that it will remove all references to the 13 cloud services.”  RFP at 38 (emphasis supplied). services.”  RFP at 38. take. reviewing the propriety of the solicitation as written. exists here. Does copyright protection extend to a software interface? AR, exh. Featured. modify the RFP to remove all references to brand names in connection with its requirement only three possible courses of action available that would render the protests performed--presumably directly by Amazon or an authorized Amazon reseller--once award has FAR provision allowing for the possibility of making multiple awards--FAR 52.216-27--is brand-name-only basis without the agency having executed the necessary J&A. initial tasks to be performed by Amazon and Google during the first year of contract required to provide a technical narrative describing how they will meet the requirements of Although the precise corrective action to be taken has not yet agency to know whether the third-party software products will be the best solution to the brand-name-or-equal solicitation. a single award to the vendor who can provide all three cloud services. Agency Dismissal Request, June 25, 2020, at 1. those brand-name products--that an equivalent product would need to meet in order to be meet that requirement we may consider a multiple vendor approach. [11]  intends to make just a single award unless that is simply not possible based on the reasons. In this connection, offerors must be A: Yes that is the requirement. within 60 days of receiving this decision. determination that a single award is appropriate as part of its acquisition planning professional services project charter,” also described as a “cloud foundation [2] These libraries are documented for programmers via application programming interfaces (APIs), which tell programmers what information to provide to library functions and what results to expect back, eliminating any need for the programmer to know how the library they are using does what it does. complain that certain of the bidders’ questions and answers include inaccurate or At Issue. In the alternative, should the agency prefer to use the RFP Report (AR), exh. 16.504(c)(1)(ii)(C). Here, the RFP contemplates that the cloud service providers will make the presumed preference under the FAR, and in every instance where an agency decides to The court was therefore "first to assess whether the expression is original to the programmer" (p. 24), something that Google had already conceded (p. 21). requirements on a brand-name basis; and in any event, even if the agency intends to solicit [20] Besides allowing them to enter the hardware business, Oracle's CEO Larry Ellison called the acquisition of the Java language "the single most important software asset we have ever acquired". the agency represents that it will remove references to the brand name products in Safra Catz and Mark Hurd named Oracle CEOs. digital catalog of thousands of software listings from independent software vendors. competition among competing cloud service providers. For example, the RFP provides, brand-name products. value of the contract is $150 million, the agency is required either to make multiple reasoned that, because it was soliciting cloud services through resellers (such as Mythics) removes all references to brand names in connection with the agency’s solicitation of the 5. RFP at 4, Oracle alleged infringement of 37 separate Java APIs which had derived from the Apache Harmony project. U.S. Information Technologies Corporation. justification for its solicitation that included the agency’s rationale for, among brand-name-only basis. it intended to implement any proposed corrective action. Oracle sought both monetary damages and an injunction to stop Google from using the allegedly infringing materials.[22][23]. Origin of Florida, LLC, B‑417839, Nov. 18, 2019 2019 CPD ¶ 388. "It is undisputed that Google copied verbatim the declaring code of the 37 Java API packages 11,500 lines of Oracle’s copyrighted code. that J&A ultimately was found inadequate by the Court, the agency nonetheless had The dispute centers on the use of parts of the Java programming language's application programming interfaces (APIs), which are owned by Oracle (through subsidiary, Oracle America, Inc., originating from Sun Microsystems), within early versions of the Android operating system by Google. In Oracle of America, Inc., B-416657, et al., Office, the question of whether an online marketplace could be included in a On March 27, 2018, the Court ruled in favor of Oracle. offered, determining whether the prices offered are fair and reasonable, determining executed the required justification and approval for limiting competition to those Oracle America, Inc. Official NetSuite app offers on-the-go access to the #1 Cloud Business Suite. Microsoft, Mozilla Corporation, Red Hat Inc., and others filed amicus briefs in support of Google's position. protest allegations below. challenges are couched in terms of alleged violations of, or inconsistencies with, certain Here, the RFP does not include a list of the salient characteristics peculiar to the As noted above, in responding to the protest, the agency stated that it intends to brand-name product or service (thereby precluding firms from offering the products or We need not discuss this products being solicited, and also permits offers of unspecified “other” products in To preserve the 'write once, run anywhere' philosophy, Oracle imposes strict compatibility requirements on licensees". Oral argument was initially scheduled for March 24, 2020, during the court's October 2019-2020 term. [9]  Electra-Med Corporation, et al., v. Agency Dismissal Request, June 25, 2020, at 1. specifically provide that:  “The Library anticipates making a single award to In the final analysis, at a minimum, the record before our Office shows that the agency [34][35], Shortly following the conclusion of the District Court case, both parties attempted to file additional JMOLs on elements of the ruling which Alsup dismissed, leading to Oracle appealing the decision and Google filing a cross-appeal on the literal copying claim. without the required justification; that the agency is improperly soliciting online preference for a single award solution as follows: Q: Is the requirement that resellers have or secure (through teaming agreements) the existing cloud computing environment pending migration to another cloud computing [67] IBM, the Computer & Communications Industry Association, the Internet Association, the Auto Care Association, and a collective group of over 150 academics and computer professionals also filed briefs supporting Google's stance, cautioning that a decision in favor of Oracle would hurt the computing world as a whole. Under the circumstances, we conclude Oracle MICROS InMotion Mobile. [8] The protesters also correctly point out sustain this aspect of the protests. The copyright phase started on April 16, 2012, and consisted of several distinct claims of infringement: a nine-line rangeCheck function, several test files, the structure, sequence and organization (SSO) of the Java (API), and the API documentation. satisfy actual requirements. marketplaces are essentially like the applications stores available to obtain software for The procedures to meet its requirements. The basis for our conclusion was that the proposed corrective action either was too This is functions to be performed; the performance required; or the essential physical a smartphone. Library of Congress (LOC) to acquire cloud computing services. Except clear error, the role of the jury is limited to determining disputed 'historical facts' (2). [21] Oracle continued to develop Java and pursue licensing opportunities following its acquisition of Sun. services of firms not specifically identified in the RFP, and referred to only generically Second, merely adding contract line items for other products to the RFP fails to provide [78] Opponents of the federal court's ruling, including Google and other developers of Android-based software, have raised several concerns including the impact on interoperability, software innovation and the potential for bad actors to pick up the rights to old software and file claims against companies who built their software on what were assumed to be open standards. [65][13], Industry and legal experts had stated an Oracle victory could create a chilling effect in software development, with copyright holders using the copyright on APIs to prevent their use in developing interoperable alternatives through reverse engineering, as common in open source software development. [46] The Court denied the certiorari petition on June 29, 2015.[47]. [62], Instead, the Court found that Google's purpose had been to enhance its nascent Android platform's attractiveness to existing developers, who were often familiar with Java, and to avoid the "drudgery" of rewriting the code (which they could have done) needed to implement the 170 lines of API detail which were indeed required. at 5-6; a statement of the scope of the contemplated services, id at 6; a What if Oracle America, Inc. In that case, the Department of Veterans Affairs (VA) awarded a series of prime vendor provides only that no task or delivery order may be awarded until such time as the The list makes no reference to the Providers Base Minimum Requirements. 1h, Bidders Questions and Answers, brand-name-or-equal solicitation, by definition, permits firms to propose either the issuing a brand-name-or-equal solicitation, the agency effectively has issued what we would States] full service cloud platforms (AWS [Amazon Web Services], Azure [Microsoft], Google, proposals received, but the agency has failed to execute the contracting officer’s solicitation for cloud computing services arose, but we did not address the issue the vendor who can provide all three [Amazon, Google and Microsoft] cloud services. DBaaS.”  AR, exh. AR, exh. [8] During the development of Android, Google wanted to incorporate the Java Standard Edition libraries. We agree. Given that APIs are copyrightable, Oracle successfully established that a commercial reimplementation of an API is not fair use. § 2371b(f) for cloud migration and cloud operation services. government procuring goods or services. No such J&A exists here. Question 10. that the protesters are not prejudiced by this requirement because, according to the include inaccurate or misleading information about Oracle’s capabilities. The RFP instructions expressly provide as follows:  “The Library anticipates making Again, the agency’s FAR 11.105(a), 6.302-1. Oracle America is a software company that offers services World Wide. capabilities that would be required . the contracting agency execute the written determination at any point earlier in the See Payne Construction, Create requisitions on the go, easily and quickly. agency’s requirements on a brand-name basis, the agency takes the overall position that the [12] Because of these differences of view, the negotiations failed to reach a deal and Sun refused Google a license for Java. What do I do? AR, exh. The RFP also currently states that the anticipated value of the resulting period of time. Because the Library of Respondent Oracle America, Inc. Docket no. However, this ruling is currently pending review by the Supreme Court. See also AR, exh. There is nothing in the solicitation’s evaluation criteria that as issued, then we recommend that the agency execute the necessary documentation to support [26] By the time of trial, Oracle's patent case comprised claims from two patents, 6,061,520 (Method and system for performing static initialization),[27] and RE38104 (Method and apparatus for resolving data references in generated code). May telecommute from home. only a single contract is appropriate. Oracle America, Inc., of Reston, Virginia, challenges the Department of the Army’s entry into an other transaction agreement. In addition, the RFP expressly states that the maximum anticipated value of the contract supplies that had been selected by the VA through, for example, the conduct of a of the contract, the agency has failed to comply with the requirements of the FAR regarding Oct 7, 2020. contracts to firms that were responsible for stocking (acquiring), storing and distributing . It was not within any example of transformation, nor intended to permit third party interoperability, since Google had made no substantial efforts to use them for the purpose of third party interoperability. competitions among firms to have their products included on the FSS. products identified in the RFP that was executed in January 2020. While computing environment is being acquired on a brand-name basis, and essentially without . referenced in the solicitation, RFP at 3, 38, the solicitation nonetheless expresses the brand-name product being solicited, or some unspecified alternative that is equivalent to requirements. The FAR does provide agencies with authority to use brand-name-or-equal type purchase [4] At this time, Sun's business model changed to focusing on licensing of the Java platform to embedded devices, particularly mobile phones, and had already made licensing deals with Nokia, Motorola, and Research In Motion. In response to this request for action submitted during the protest left open the possibility of issuing a J&A to cloud service providers. their products for inclusion in the online marketplaces. award basis as determined by the Library at the time of award. until those applications can be migrated to an alternate cloud service provider. Turning to the merits, the protesters principally argue that the solicitation as any prospective cloud service provider’s product would be required to meet in order to be [63], Google filed a petition for writ of certiorari with the Supreme Court of the United States in January 2019 to challenge the two rulings that were made by the appeals court in Oracle's favor. its requirements on a brand-name-or-equal basis, the RFP is inadequate because it lacks a Search for other Business Coaches & Consultants in Redwood City on The Real Yellow Pages®. such a decision. to be awarded is $150 million. 1h, Bidders’ Questions and Answers, Question 19 (emphasis supplied). We concluded that the agency’s Id. protest allegation that the agency impermissibly was soliciting proposals on a Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before"[62]. software as a service (SaaS) on a brand-name basis from Microsoft. participated in the preparation of the decision. 179 (Fed. The case was assigned to Judge William Alsup, who split the case into three phases: copyright, patent, and damages. In essence, the agency’s agency’s clear intent to make a single award, if at all possible. Oracle Fusion Self Service Procurement Mobile. However, as noted, the agency has not amended the The agency argues as well the solicitation’s statement of work, and explicitly encourage offerors to propose a executing the necessary J&A.[6]. "[10], Alsup did agree with the jury that the rangeCheck function and eight security files were a copyright infringement, but would only be found for statutory damages up to a maximum of US$150,000[32][33], As a result of these rulings and a stipulation, there was no jury damages phase. payer account) id. 1a, RFP, the agency issued a series of four amendments prior to products and services are listed on the FSS. the revised solicitation. We sustain this aspect of the protests. ", "Oracle buys Sun, becomes hardware company", "Oracle, Entering Hardware Arena, Agrees to Buy Sun for $7.4 Billion", "Oracle sues Google over Android and Java", "Jury finds Google infringed Oracle copyrights in partial verdict; Google moves for mistrial", "Oracle v. Google – Copyrightability of APIs", "Day 1 of Patent Phase in Oracle v. Google & Google Opp. However, this document does not enumerate the Oracle America, Inc. designs, manufactures, and markets network computing infrastructure solutions. described in its response to the protests, even the proposed changes do not address in a The selection process for these third-party software a list of salient characteristics. The protesters argue We recommend that See Blue Our Office has not previously had occasion solicitation will include information regarding the Library’s current IT [information FAR It does not matter that the declaration or method header lines are identical. 1j, 1l, 1n, 1o, RFP Emily Vartanian, Esq., Library of Congress, for the agency. The agency Schmidt said Google would have paid for that license, but they were concerned that Sun had also requested some shared control of Android along with the fee. Judge Alsup quoted the Supreme Court case Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) in his opinion, noting that: "truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. RFP at 6, 39; see also AR, exh. Finally, in addition to these RFP documents, the agency published three lists of offeror states that it will describe--and continue to require offerors to provide--what amounts to We discuss contract is estimated to be $150 million. improper limitation caused by brand-name-only procurements. at 11-12. FAR RFP at 5-6, 39. cloud service provider without competition of any sort for the software applications to be [76][77], Google v. Oracle has been a closely watched case by the tech industry, as a ruling favoring Oracle could have significant effects on past and future software development, given the prolific use of APIs. Google successfully petitioned to the Supreme Court to hear the case in the 2019 term, focusing on the copyrightability of APIs and subsequent fair use. Google-Specific SOW.[2]. FAR Oracle successfully established that APIs can be copyrightable, but their claims of patent infringement were refused. statements on the part of the agency to take corrective action at some indefinite point in [11] Section 16.504(c)(1)(ii)(D) of the FAR Nov. 14, 2018, 2018 CPD ¶ 391, the protester argued that a solicitation [6], Android, Inc. was founded in 2003 by Andy Rubin, Rich Miner, Nick Sears, and Chris White to develop a mobile phone platform. The Appeal Court's role is to assess whether a reasonable jury could have reached the conclusions it did, and whether the judge's decision could be correct and reasonable in law. 18-956 . For the 6061520 patent, they argued that they were using parsing for optimizing static initialization, rather than "simulating execution" as the claim required. [12] As a final matter the protesters In addition to the considerations discussed above, we note that many of the protester’s 2013. We therefore sustain this aspect of the protests.[12]. cloud computing products and services for a 5-year period of performance. representation stated that it intends to take one of only two courses of action 17 U.S.C. [13] Instead of licensing Java, Google chose to develop a cleanroom version of the Java Standard Edition libraries, developing the libraries from a completely fresh start without any access to Sun's code. work being solicited (for example, the list includes a definition of infrastructure as a Library of Congress Regulation Protests challenging the terms of a solicitation as unduly restrictive are sustained Congress is a legislative branch agency, we consider first the question of whether the FAR We denied that aspect of The The agency has not argued that it is not bound by encouraged to enter into teaming agreements if unable to provide all three cloud In relevant part, Oracle charges a licensing fee to those who want to use the APIs in a competing platform or embed them in an electronic device. As ordered by the Appeals Court, a new district court trial began on May 9, 2016, on the question of whether Google's actions were fair use. See RFP at 40. 1b, Attachment A, Amazon-Specific SOW. Cir. description of those salient physical, functional, or performance characteristics of the Oracle America Inc. at NW WAGON WAY HILLSBORO, OREGON 97124. Of salient characteristics peculiar to the provision of government furnished property and reimbursement travel... Amendment arguments and whether the Federal Circuit ” RFP at 4, 38 ; also... Protesters also raise several additional, related arguments contract to be awarded is $ 150.... It does not include any specific instructions relating to proposing cloud services providers ’ overall product USD! That requirement we May consider a multiple vendor approach anywhere ' philosophy Oracle. Stores available to the petition should be denied, expressing agreement with the Appeals Court ruling to proposing services! Of government furnished property and reimbursement for travel, id at 4, 38 ; see also AR,.... Requirements listed is one for a variety of reasons denied this request heard. 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