Amazon offered the Pentagon what it believes to be technically superior cloud services at a lower price than rival Microsoft under the Pentagon’s $10 billion Joint Enterprise Defense Infrastructure (JEDI) contract, the company claims in court documents unsealed late Tuesday.
Despite knowing this, the Department of Defense still went on to reaffirm its award of JEDI to Microsoft in September after taking corrective actions, Amazon alleges in an amended complaint filed in its protest of the deal in federal claims court. As such, Amazon believes the award should be overturned.
The unsealed amended complaint comes now a year into Amazon’s push for the Court of Federal Claims to overturn DOD’s decision to award Microsoft the JEDI contract. In this latest filing, Amazon hopes to continue its success before the judge in showing that the DOD erred in numerous ways in its evaluation of the two companies’ bids. And whereas the court has so far focused on just one of DOD’s evaluation factors in weighing the case, Amazon now hopes to bring to light the many other ways it says the department’s decision was flawed.
Amazon’s legal team says in the filing that Microsoft “has never performed a cloud computing contract of this scale or complexity,” and its proposal “failed numerous critical evaluation criteria and would cost taxpayers significantly more than [Amazon Web Services‘] battle-tested solution.”
“The reevaluations reveal that DoD’s ‘corrective action’ was focused on affirming its prior award to Microsoft, rather than identifying the offeror that presented the best value to the Government,” the complaint says.
An Amazon spokesperson said the company is “now the lowest-priced bid by tens of millions of dollars.”
A DOD spokesperson said the department could not comment because of the ongoing litigation.
Amazon is clear in its allegations: The Pentagon wanted Microsoft to win and did what it could to support that, in both the DOD’s original award and its re-affirmed award, the company claims.
“DoD’s evaluative gymnastics to shore up the best value determination in Microsoft’s favor-without addressing the underlying substantive shortcomings in Microsoft’s proposal-cannot mask the facts: AWS proposed a superior technical solution at a lower price,” the complaint reads. “DoD strained at every step to ensure that Microsoft was given the benefit of the doubt, and scoured the record to invent wholly new and even more specious reasons to support maintaining the award to Microsoft where the proposals and evaluation criteria did not.”
When DOD took corrective actions earlier this year, they were based only on one of the several technical factors included in the contract’s evaluation criteria. But Amazon alleges the DOD erred in evaluating six of those factors — not just the one that has been the focus of the case so far.
The court’s concerns with that one technical factor were enough to move it to order a stop of work under the JEDI contract and take action. Now Amazon wants to the court to look into the rest of the factors it says are flawed.
“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,” said the Amazon spokesperson. “We had made clear that unless the DoD addressed all of the defects in its initial decision, we would continue to pursue a fair and objective review, and that’s exactly where we find ourselves today.”
On the contrary, Microsoft claims Amazon lowered its price only because “as the losing bidder, Amazon was informed of our pricing and they realized they’d originally bid too high,” said Frank X. Shaw, corporate vice president of Microsoft Communications. “They then amended aspects of their bid to achieve a lower price. However, when looking at all the criteria together, the career procurement officials at the DoD decided that given the superior technical advantages and overall value, we continued to offer the best solution. We also know what it takes to serve the DoD having worked with them for more than forty years.”
Under JEDI, Microsoft will have to prove that it can support DOD work at the top-secret level, something it’s not yet officially been accredited to do. The company has built a new cloud service to protect agencies’ top-secret data, it announced earlier this month. But it’s unclear when it will be authorized for use.
In its new complaint, Amazon also maintains its argument that President Trump’s bias against the company and CEO Jeff Bezos was central to the department’s awarding the contract to Microsoft.
Pressured by Trump and his politics, Amazon’s complaints says, the source selection team’s “contortions to justify the re-award to Microsoft despite its higher cost to taxpayers can best be understood. There is simply no other reasonable explanation for the extraordinary efforts by these procurement officials to skew the reevaluations in Microsoft’s favor.”