AWS believes Pentagon is withholding important documents in JEDI protest

Secretary of Defense Mark Esper meets with reporters in London on Sept. 5, 2019. (DOD / Lisa Ferdinando)

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The Pentagon hasn’t been forthcoming in providing relevant materials and documents in Amazon’s protest of the Joint Enterprise Defense Infrastructure (JEDI) cloud contract, the company alleges in new filings.

Despite orders from the court to do so, the Department of Defense hasn’t submitted informal documents, such as communication through email and other digital collaboration tools like Google Docs and Slack, that reflect the agency’s decision to award the JEDI contract to Microsoft last October.

The court has twice now ordered DOD to include such materials, Amazon Web Services says in a motion filed Friday. By not submitting the materials, the department “continues to obstruct the adjudication of this protest” by failing to complete the administrative record with applicable materials and information, AWS’s lawyers write in the motion. Instead, DOD has produced a “cherrypicked record,” they say.

“The Government’s disregard for this Court’s orders and dilatory attitude toward the completeness of the [administrative record] are transparent attempts to ‘undermine’ the ‘court’s review function … [by] insulat[ing] portions of its decisions from scrutiny,'” the motion says.

On top of the informal records DOD hasn’t produced, AWS argues the department has failed to produce other materials, like memos, agendas and transcripts for informational meetings with Secretary of Defense Mark Esper and his office, and documents concerning the recusals of Esper and Stacy Cummings, the principal deputy assistant secretary of Defense for acquisition enablers, from matters involving JEDI.

AWS asserts that these missing materials are essential to the court’s ability to rule on its protest that claims the DOD repeatedly made “prejudicial errors” in its evaluation of bids for the $10 billion JEDI contract that were rooted in influence from President Donald Trump.

The company says in the redacted motion that DOD has “fumbled its handling of the [administrative record] from the very beginning of the case.” It goes on to detail DOD’s slow and staggered submission of records, which has stretched on from Nov. 26 to as recently as earlier this month, when the department “amended the record with 1,119 pages of new materials … that should have been part of the [record] from the outset.”

Asked about the motion, a DOD spokesperson told FedScoop, “We continue to focus on getting this critical capability into the hands of our warfighters as quickly and efficiently as possible. We will not have anything to add with regard to the specifics of the litigation.”

DOD pushes to dismiss Amazon’s allegations of Trump bias

Meanwhile, the Pentagon is pushing for the court to throw out key charges of political influence in Amazon’s protest.

DOD attorneys filed a variety of motions in recent weeks that in aggregate look to quash the notion that Trump had any influence on the procurement, arguing that the company’s allegations are untimely and part of a “strategic gambit” it’s waging only now that it lost the contract.

The defense asks the court in the filings to dismiss AWS’s allegations of bias and instead focus on the Pentagon’s evaluation process.

“Dismissing the bias allegations at this time will focus this litigation on the evaluation challenges that AWS now acknowledges are the heart of its suit, rather than consuming enormous time and resources litigating superfluous, waived, and insubstantial allegations,” the attorneys wrote in a motion to dismiss AWS’s complaint in part.

DOD attorneys contend that several of AWS’s complaints are legally invalid because the company knew of the alleged “facts” — that is, the evidence it puts forth of Trump’s public animus toward Amazon and its CEO, Jeff Bezos — long before it lost the JEDI competition to Microsoft and subsequently filed its protest.

Lawyers on behalf of DOD cite preceding case law, Blue & Gold Fleet, L.P. v. United States, that prohibits a company with longstanding complaints from waiting “to see if it is selected for award and, only if is it not selected, then pursue costly, after-the-fact litigation, perhaps armed with additional information about its successful competitor.”

“We disagree with the government’s and Microsoft’s motions for partial dismissal. AWS believes that all of its protest grounds are valid, and that it’s important that the numerous evaluation errors and blatant political interference that impacted the JEDI award decision be reviewed,” said an Amazon spokesperson, who called the motions an attempt to avoid addressing the numerous evaluation errors identified by AWS and the political inference that impacted the procurement.

Amazon also filed a response in its separate motion to supplement the record Friday that briefly addresses DOD’s case against the company’s timeliness — though it said it will look to address this charge more fully in a forthcoming response to DOD’s motion to dismiss the case in part.

The company claims it became clear that bias affected the JEDI evaluations once it “saw the award decision, the thin and tortured analysis of the evaluation factor, DoD’s post-award decision not to provide an in-person debriefing, DoD’s refusal to response in any meaningful way to AWS’s post-debriefing questions, and the post-award revelation that the President has instructed General Mattis to ‘screw Amazon’ out of the JEDI contract.”

“The Government’s and Microsoft’s view that AWS should have filed a protest immediately after every presidential tweet (including those before the election) makes no practical sense, and conflates knowledge of the President’s dislike for Mr. Bezos, Amazon, and the Washington Post with knowledge that the actual evaluation process for the JEDI procurement was actually biased as a result of improper influence — a fact AWS did not ‘know’ in the pre-award period,” AWS’s lawyers say.

With a number of motions lobbed back and forth between parties in the protest, the case will likely stretch on longer than expected. And during that time, DOD and Microsoft have been ordered to temporarily stop work under the contract until the court rules otherwise.

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Amazon Web Services (AWS), Department of Defense (DOD), Donald Trump, Jeff Bezos, Joint Enterprise Defense Infrastructure (JEDI), Mark Esper, Microsoft, Stacy Cummings, U.S. Court of Federal Claims
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