The company alleges the president’s public beef with Amazon CEO Jeff Bezos influenced “substantial and pervasive errors” in the Defense Department’s technical evaluation of bids.
In court documents unsealed Monday, Amazon alleges the Pentagon made “numerous and compounding prejudicial errors” in awarding its Joint Enterprise Defense Infrastructure contract to Microsoft.
Amazon’s redacted complaint—scrubbed for proprietary information but more than 100 pages in length—positions its bid as technically superior and more secure than Microsoft’s in almost every measure. The company is challenging the Defense Department’s award of the contract—worth up to $10 billion over up to a decade—to Microsoft in the U.S. Court of Federal Claims.
“Any meaningful review of that decision reveals egregious errors on nearly every evaluation factor, from ignoring the unique strengths of AWS's proposal, to overlooking clear failures in Microsoft's proposal to meet JEDI's technical requirements, to deviating altogether from [the Defense Department’s] own evaluation criteria to give a false sense of parity between the two offerors,” the complaint states. “These fundamental errors alone require reversal.”
The JEDI contract aims to provide the Defense Department and military branches with a global commercial cloud computing infrastructure to host, process, analyze and store vast amounts of classified and sensitive data. Amazon’s complaint gets into the weeds of the highly technical procurement and how it says the Pentagon erred in evaluating several key factors, including security, management, classified infrastructure, cost, tactical edge and management.
In one example, Amazon said the Pentagon changed its selection approach of the procurement in spring 2019 after both companies had submitted their bids. The Pentagon had already confirmed Amazon’s bid—which planned to use existing data centers currently in use by the Defense Department and intelligence community for JEDI—as “realistic and feasible,” according to the complaint.
“And at the eleventh hour—months after DoD completed its evaluation of AWS' s initial proposal, and after the conclusion of all scheduled discussions—[Defense Department] changed its interpretation of the RFP's classified infrastructure requirements, effectively rejecting AWS's long-standing plan to utilize existing data centers already certified for classified use and instead requiring AWS to build new dedicated classified infrastructure for [Defense Department,” the complaint states. “[The Defense Department]—without any technical justification—took affirmative steps to deprive AWS of its competitive advantage over Microsoft and level the playing field so that DoD could justify its award to a technically inferior competitor.”
In another example, Amazon said it wasn’t given proper credit for what it said were superior security features and hypervisor, Nitro, despite exceptional reviews from the Pentagon’s source selection executive board. The department also opted not to take past performance into consideration, a decision that disregarded Amazon’s business with the intelligence community’s C2S cloud.
“This was an unusual decision, given the JEDI Contract's significant national security implications and the fact that the [Federal Acquisition Regulation] explicitly states past performance ‘should be an important element of every evaluation and contract award for commercial items,’” the complaint states.
Amazon’s complaint further links decisions made by evaluators with months of continued political pressure applied by President Trump, which the company had alluded to in previous filings. The company pointed to dozens of tweets and comments by the president and his son, Donald Trump Jr., as evidence of Trump’s dislike of Jeff Bezos, Amazon’s CEO and Washington Post owner. According to the complaint, Amazon says the Defense Department’s “substantial and pervasive errors are hard to understand and impossible to assess” unless the president’s repeated anti-Amazon remarks are considered.
“These errors, however, were not merely the result of arbitrary and capricious decision-making. They were the result of improper pressure from President Donald J. Trump, who launched repeated public and behind-the-scenes attacks to steer the JEDI Contract away from AWS to harm his perceived political enemy—Jeffrey P. Bezos,” the complaint states. “The stakes are high. The question is whether the President of the United States should be allowed to use the budget of [the Defense Department] to pursue his own personal and political ends.”
The complaint also raises questions about Defense Secretary Mark Esper’s involvement in JEDI. At Trump’s behest, Esper ordered a review of JEDI in August following public comments Trump made in July saying he wanted to “look into” JEDI.
Esper later recused himself JEDI-related decisions on Oct. 22 over the employment of his son, Luke, who worked for IBM, one of the early competitors for JEDI whose bid was ruled out five months prior. However, according to Amazon’s complaint, the Defense Department made the decision to award JEDI to Microsoft on Oct. 17, five days before Esper’s recusal. The Pentagon announced the award Oct. 25.
In a statement, the Pentagon spokeswoman Elissa Smith said there were no external influences on the JEDI decision.
“This source selection decision was made by an expert team of career public servants and military officers from across the Department of Defense and in accordance with DOD's normal source-selection process,” Smith said. “There were no external influences on the source selection decision. The department is confident in the JEDI award and remains focused on getting this critical capability into the hands of our warfighters as quickly and efficiently as possible.”
According to the filing, the Defense Department has agreed not to proceed with performance under JEDI until at least Feb. 11, 2020, aside from “initial preparatory activities.” If a decision in the case is not reached by that time, Amazon could file for a preliminary injunction to halt work until a decision is rendered.
In any case, Microsoft, which is intervening on Amazon’s lawsuit, isn’t buying its rival’s argument.
“We have confidence in the qualified staff at the Department of Defense, and we believe the facts will show they ran a detailed, thorough and fair process in determining the needs of the warfighter were best met by Microsoft,” a Microsoft spokesperson said. “We’ve worked hard to continually innovate over the past two years to create better, differentiated offerings for our customer.”