Amazon, Pentagon Resume JEDI Legal Arguments
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By
Frank Konkel
Amazon Web Services asks the judge to toss out the contract award while Defense Department lawyers call the company’s protest a “prohibited strategic gambit.”
Amazon Web Services argued in a redacted court filing Oct. 23 that a judge should invalidate the Defense Department’s award of the Joint Enterprise Defense Infrastructure contract to Microsoft over “systematic bias, bad faith and undue influence exerted by President Trump.”
The filing, unsealed in the Court of Federal Claims Tuesday, represents the next legal step in the yearlong battle for the contract, which Microsoft first won in October 2019 and AWS subsequently protested. The Pentagon awarded the contract to Microsoft again in September after addressing address errors identified by AWS in its evaluation, but AWS’ unsealed complaint argues its efforts didn’t go far enough.
“After the Court rejected the flawed initial JEDI evaluation, the DoD spent over four months attempting to revive Microsoft’s non-compliant bid and reaffirm that flawed and politically-biased decision,” an AWS spokesperson told Nextgov. “As a result of the DoD fixing just one of many errors, the pricing differential swung substantially, with AWS now the lowest-priced bid by tens of millions of dollars. The fact that correcting just one error can move the needle that substantially demonstrates why it’s important that the DoD fix all of the evaluation errors that remain unaddressed, and ensure they are getting access to the best technology at the best price.”
The contract, which would put a commercial company in charge of global war cloud and swaths of secret and top secret data, could be worth up to $10 billion over the next decade. However, it was conceived nearly four years ago and has yet to get off the ground, having faced four separate legal challenges by various companies competing for it. JEDI remains under a court-ordered injunction.
On Wednesday, the court unsealed separate responses to AWS’ complaint filed by attorneys for the Defense Department and Microsoft. Attorneys for the Defense Department called AWS’ protest a “prohibited strategic gambit,” suggesting that AWS used the president’s public statements and tweets of dislike toward Amazon and founder Jeff Bezos as a means to cry bias if they lost JEDI.
“AWS contends that negative statements that the President expressed publicly in tweets about Amazon, AWS’s parent company, and Jeff Bezos, Amazon’s chief executive, caused DoD evaluators, despite the absence of any alleged contact directly between such evaluators and the President, to be biased against AWS in the competition,” the filing states. “AWS, however, was aware of all of the pleaded facts underlying these allegations (along with the assumptions it draws from those facts) by early August, 2019, well before the contract was originally awarded to intervenor-defendant, Microsoft Corporation (Microsoft), and even before final proposals were due.”
AWS, the Defense Department attorneys said, waited to see if it won JEDI and after it lost, pursued “costly, after-the-fact litigation, perhaps armed with additional information about its successful competitor." After losing the first JEDI award, Defense attorneys suggested AWS again opted to “roll the dice, wait and see if it was selected for award and, only if it was not selected, spring forward to assert that DOD’s reevaluation was tainted by bias.”
In a statement responding to AWS’ complaint, Microsoft’s corporate vice president of communications, Frank Shaw, said, “It is time we moved on and got this technology in the hands or those who urgently need it: the women and men who protect our nation.”
“Amazon seems to be saying the only way they can ever lose is if the procurement isn’t fair,” Shaw added. “But every month, the market tells them that’s not true. Large and sophisticated customers regularly choose Microsoft over AWS. They do this because of the strength of our technology, our understanding of complex projects, and our overall value.”
Judge Patricia Campbell-Smith has not addressed AWS’ allegations regarding improper influence in the procurement by Trump. In October, she issued a schedule through December, and attorneys for AWS, the Defense Department and intervener Microsoft have agreed on a potential legal schedule through February 2021. Some government procurement experts have openly questioned whether a new administration and Defense leadership may scrap the JEDI effort entirely. The Pentagon’s current tech leadership, however, continues to defend the contract.