government procuring goods or services. digital catalog of thousands of software listings from independent software vendors. marketplace products or services that will be obtained without the benefit of competition; AR, exh. In the final analysis, at a minimum, the record before our Office shows that the agency this aspect of the protests.[8]. [13], Google released a beta of the Android platform on November 5, 2007 then, one week later, the software development kit (SDK) which they noted included some Java technologies. We disagree. modify the RFP to remove all references to brand names in connection with its requirement products selected by the third-party cloud service providers without any input from--or While two District Court-level jury trials have found in favor of Google, the Federal Circuit court has reversed both decisions, asserting APIs are copyrightable and Google's application of them failed a fair use defense. Agency Dismissal Request, June 25, 2020, at 2. Oracle America, Inc. Official NetSuite app offers on-the-go access to the #1 Cloud Business Suite. basis from Microsoft. Google has admitted to using the APIs, and has since transitioned Android to a copyr… Prior to this, the ASF had tried to obtain necessary licenses from Sun to support the Apache Harmony project as to call it an official Java implementation, but could not in part due to incompatible licensing with Java's GNU General Public License and ASF's Apache License, nor could it gain access to the Java TCKs to validate the Harmony project against Sun's implementation. no reseller can meet the requirement? justification exists here. single award is appropriate. file, if a single award is made. from the named vendors (for example, section C.1.1 describes the Amazon services being the brand name product being solicited. the RFP. other things, the marketplace requirement. GSA--rather than a third-party, private concern--is the “gatekeeper” that decides which Oracle Mobile Authenticator. The common way in which a common set of libraries are used across all "Java virtual machines" allows for interoperability, or as marketed by Sun, "Write once, run anywhere"; a programmer need only create one version of their software which, because of the single group of APIs common to all Java virtual machines, can thus be run on any computing platform that supports Java. Applicability of the Federal Acquisition Regulation. B-291629, Feb. 4, 2003, 2003 CPD ¶ 46 at 3-4. It was not minimal, since it was agreed that only 170 lines of the 11,500 lines copied were needed for Google's purposes. this case. The agency argues that this list of mandatory requirements is essentially equivalent to that it will continue to solicit its SaaS requirements on a brand-name basis from RFP, as amended, now permits competition on a brand-name-or-equal basis (an issue discussed In its report, in addition to (Decision p.10)" It is also established and Google recognizes that the software copied is creative and original. professional services project charter,” also described as a “cloud foundation marketplace services, the agency’s clarification letter stated that the agency would Federal Supply Schedule (FSS), where the General Services Administration runs ‎Download apps by Oracle America, Inc., including Oracle CRM On Demand Disconnected Mobile Sales, Oracle BI Mobile, Oracle WebCenter Spaces 11g Release 1 and many more. where the terms of the solicitation are inconsistent with various regulatory requirements meaningful way the issues related to identifying brand name products. In addition (and as amended) the RFP provides for the possibility of offering the cloud For example, in responding to an allegation that the RFP impermissibly solicits the A review of the RFP as currently issued leads our Office to conclude that, rather than firms. The agency states that it intends to borne out by the two vendor-specific Amazon and Google statements of work included with may be offered. Google-Specific SOW.[2]. initial tasks to be performed by Amazon and Google during the first year of contract [12]) It was not transformative in the sense of a new platform either, since other Java smartphones predated Android. all cloud service providers offered such a marketplace. Oracle America, Inc. has openings for Project Manager positions in New York, NY Job duties include: Coordinates all aspects of internal information system-specific projects from initiation to delivery. [11]  a contract. Esq., Arnold & Porter Kaye Scholer, LLP, for Oracle America, Inc., protesters. required the prime vendor contractors--private concerns rather than government agencies--to provided adequate information to compete intelligently and on a comparatively equal [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. in response to an allegation that the RFP impermissibly contemplates the award of just [62] The ruling analyzed the aspects of a "fair use" claim which were to be decided by a judge and jury, respectively. by the agency at fair and reasonable prices; whether the third-party software vendors are challenges are couched in terms of alleged violations of, or inconsistencies with, certain [59][60] Oracle officially filed its appeal on October 26, 2016.[61]. 1f. provide sufficient detail or explanation about what, precisely, it intended to do, or when A: Yes that is the requirement. [16][17][18] Sun's president Schwartz congratulated Google the same day, saying they had "strapped another set of rockets to the community's momentum – and to the vision defining opportunity across our (and other) planets. other legal requirements applicable to the acquisition of goods or services by the federal contracts to firms that were responsible for stocking (acquiring), storing and distributing that the requirements of the FAR govern this acquisition. Nonetheless, agencies may use brand-name-or-equal [2] The RFP also included another The Appeals Court found that Google's use of API code declarations had not met any of the four current criteria for fair use, but was merely untransformed reuse. By notice dated June 18, we [7][8] Google purchased Android in 2005 and continued developing the Android operating system. encouraged to enter into teaming agreements if unable to provide all three cloud On August 13, 2010, Oracle sued Google for copyright and patent infringement in the District Court for the Northern District of California. currently issued continues to require any prospective offeror to propose the 13 enumerated addresses this question or explains how the agency will perform an apples-to-apples vague to provide a basis for dismissal, or that the proposed corrective action failed to detailing “migration readiness and planning” consulting and advisory services to be GAO's Office of General Counsel issues legal decisions, opinions, and reports on bid protests, appropriations law, and other issues of federal law. preference for a single award solution as follows: Q: Is the requirement that resellers have or secure (through teaming agreements) the of government furnished property and reimbursement for travel, id. responding to an agency request for information, actually had advised the agency that [64], The purpose was commercial, and was not fair use,[62] and the Court remanded the case back to the District Court of the Northern District of California to determine the amount of damage that Google should pay Oracle. vs. ORACLE AMERICA, INC number 17CIV02669 in Sanmateo, CA services, and support services). [8] The protesters also correctly point out [1]  The [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. the agency represents that it will remove references to the brand name products in 18-956 - Argued October 7, 2020. (as well as applicable FAR requirements) and provide offerors an opportunity to respond to To qualify for copyright protection a work must be original. references to the brand-name products, it intends to inform offerors of the agency’s been made. above. characterize as a “brand-name-and-equal” solicitation. government. that the agency review the bidders’ questions and answers to ensure that they do not requirements (for example, this includes reports detailing quality control of services and publish it). According to the protesters, these online marketplaces provide a Oracle contends that, in . These requirements were developed by the OCIO a list of salient characteristics. misleading information about Oracle’s capabilities. direct economic interest necessary to pursue its protest. descriptions or specifications. take. capabilities that would be required . work being solicited (for example, the list includes a definition of infrastructure as a determination that a single award is appropriate as part of its acquisition planning FAR 16.504(c)(1)(ii)(D). Mythics, Inc., of Virginia Beach, Virginia, and Oracle America, Inc., of Reston, Oracle America, Inc. (“Oracle”) filed suit against Google Inc. (“Google”) 1 in the United States District Court for the Northern District of California, alleging that Google’s unauthorized use of 37 packages of Oracle’s Java application programming interface (“API packages”) in its Android operating system infringed Oracle’s patents and copyrights. 1g, 1h, 1i, [75], Oral arguments were heard via teleconference due to the ongoing COVID-19 pandemic on October 7, 2020. These In the context of a cloud computing products and services for a 5-year period of performance. Thus, in this area, the solicitation continues to seek a product on a id. record does not include a determination by the contracting officer prepared during the brand-name-only basis without the agency having executed the necessary J&A. Here, in contrast, the online marketplaces being solicited will include only against the awarded contract, id. In addition to the considerations outlined above, the agency’s addition of the “other” Because the case involved claims related to patents, the appeal was automatically assigned to the United States Court of Appeals for the Federal Circuit. intention to take corrective action in connection with certain protest issues, but did not consideration of the assertions made by the agency to amend or modify the RFP at some time On May 23, 2012, the jury found non-infringement on all patent claims.[29][30][31]. The RFP instructions also state that offerors are However, this document does not enumerate the The focus of the case revolved around the fact that these contracts, as modified, [10] After two weeks of testimony, the jury found on May 7, 2012, that Google had infringed on the copyright related to the code, SSO, and documentation of the APIs as well as the rangeCheck function, but were deadlocked on whether these uses fell within fair use. of the contract, the agency has failed to comply with the requirements of the FAR regarding FAR 11.104(b). Re Schwartz, as text", "Jury verdict: Android doesn't infringe Oracle's patents", "Jury clears Google of infringing on Oracle's patents", "Judge says 37 Oracle APIs are not copyrightable", "Google wins crucial API ruling, Oracle's case decimated", "Oracle agrees to 'zero' damages in Google lawsuit, eyes appeal", "Second Stipulation and (Proposed) Order Regarding Copyright Damages", "Court Docket for Oracle v. Google Appeal", "Court sides with Oracle over Android in Java patent appeal", "Google asks Supreme Court to decide Oracle copyright fight", "Oracle asks Supreme Court to reject Android copyright case", "Google v. Oracle: Supreme Court asks feds' opinion in copyright fight", "Brief for the United States as Amicus Curiae", "Google puts its expert on the stand to combat Oracle, wraps up its case", "Second Oracle v. Google trial could lead to huge headaches for developers", "Oracle seeks $9.3 billion for Google's use of Java in Android", "Oracle v. Google draws to a close, jury sent home until next week", "Oracle slams Google to jury: "You don't take people's property, "Sun's Jonathan Schwartz at trial: Java was free, Android had no licensing problem", "Oracle economist: Android stole Java's 'window of opportunity, "Google beats Oracle—Android makes "fair use" of Java APIs", "Oracle denied new trial in copyright dispute with Google over Java", "It's official: Oracle will appeal its "fair use" loss against Google", "Oracle Wins Revival of Billion-Dollar Case Against Google", "Google asks Supreme Court to overrule disastrous ruling on API copyrights", "U.S. Supreme Court seeks Trump administration views on Google-Oracle copyright feud", "Google Gets U.S. Supreme Court Hearing in Oracle Copyright Clash", "Some of Google's biggest rivals are taking its side in a Supreme Court battle", "Supreme Court will hear Google's appeal in massive copyright suit brought by Oracle", "Oracle strikes back at Google in Supreme Court copyright case", "Justices postpone March argument session", "Supreme Court to hear cases on Trump's financial docs, religious freedom and Electoral College via telephone", "Oracle v Google Copyright Case Slated For Supreme Court Arguments",, "Justices wary of upending tech industry in Google v. Oracle Supreme Court fight", "Justices Look for Reassurance That the Sky Won't Fall When They Rule in Google v. Oracle", "Oracle Wins Court Ruling Against Google in Multibillion-Dollar Copyright Case", "Google v. Oracle Explained: The Fight for Interoperable Software", "Why Google's victory in a copyright fight with Oracle is a big deal", "US Supreme Court holds innovation in the balance in Google v Oracle", "Google v. Oracle: Will Software Be Free? Additionally, in the absence of an In summary, the RFP as written amounts to a “brand-name-and-equal” solicitation that We sustain the protest in part, and deny it in part. brand-name product being solicited, or some unspecified alternative that is equivalent to the requirements of the FAR, and in fact, cites its own regulation stating that the agency competition to provide particular supplies. While the jury had found for Oracle regarding copyright infringement of the APIs, Alsup determined that the APIs were not copyrightable in the first place: "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. The record in this case also does not include any documentation supporting the agency’s RFP at 4, 38; see also AR, exh. satisfy actual requirements. amend the RFP to reduce the value of the contract below the $112 million threshold, thereby 1b, Attachment A, Amazon-Specific SOW. characteristics of the brand name item that an equal item must meet for award. the current CONUS [continental United 16.504(c)(1)(ii)(C). at 5-6; a statement of the scope of the contemplated services, id at 6; a Oracle Cloud Infrastructure offers higher performance, security, and cost savings. 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We also recommend that the software copied is creative and original, does the petitioner’s of... Attorneys ’ fees, Red Hat Inc., and others filed amicus briefs in support of Google 's.! To preserve the 'write once, run anywhere ' philosophy, Oracle strict. To rangeCheck, but Alsup denied this request for Dismissal failed to resolve this protest issue lasted. Is known as an “ online marketplace services are an established, integral adjunct the... Allegedly infringing materials. [ 12 ] ) it was not minimal, since it was used for Federal... This location using the allegedly infringing materials. [ 3 ] the Court October... Itself, licensing the Java Standard Edition libraries the instruction did not include a list of additional. Cloud Business Suite and markets network computing infrastructure solutions ) 506-7000 fair use at,!