AWS wants depositions from Trump, Esper in JEDI lawsuit

U.S. President Donald J. Trump and Secretary of Defense Dr. Mark T. Esper speak during a Full Honors Welcome Ceremony for Esper, at the Pentagon, Washington, D.C., July 25, 2019. (DoD photo by Lisa Ferdinando)

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Editor’s Note: This story was updated Feb. 11 to reflect an amicus brief from the Citizens for Responsibility and Ethics in Washington


Amazon Web Services is asking a federal claims court for depositions from President Donald Trump, as well as his current and former secretaries of Defense, as part of its bid protest of the Pentagon’s $10 billion Joint Enterprise Defense Infrastructure (JEDI).

The cloud computing company claims there are gaps in the discovery information provided by the Department of Defense about its evaluation of JEDI bids and eventual award to Microsoft, according to court documents filed in the Court of Federal Claims in January but unsealed Monday.

Seeking to supplement the record, AWS issued a number of requests for targeted additional evidence from the Pentagon, including depositions of Trump, Secretary Mark Esper, former Secretary Jim Mattis, DOD CIO Dana Deasy, members of the JEDI source selection authority and the chairs of the source selection advisory council and source selection evaluation
board.

“President Trump has repeatedly demonstrated his willingness to use his position as President and Commander in Chief to interfere with government functions — including federal procurements – to advance his personal agenda,” an AWS spokesperson said in an email. “The preservation of public confidence in the nation’s procurement process requires discovery and supplementation of the administrative record, particularly in light of President Trump’s order to ‘screw Amazon.’ The question is whether the President of the United States should be allowed to use the budget of the DoD to pursue his own personal and political ends.”

Amazon argues that the information it seeks is reasonable and narrowly tailored to examine how Trump’s alleged bias against the company may have led to the Pentagon issuing JEDI to Microsoft. The company said DOD is in violation of law because it did not provide a substantive response to any of its 265 debriefing questions.

AWS is trying to make the case in its protest that the Department of Defense repeatedly made “prejudicial errors” in its evaluation of JEDI that were rooted in influence from President Trump and his animosity toward Amazon and its CEO Jeff Bezos.

Deposing the president is a very sensitive subject, and AWS acknowledges that reality in the court documents. It says it will “work with the Court and the Department of Justice to develop appropriate protocols and safeguards, including to evaluate alternative methods, to ensure that the testimony is procured in a manner sensitive to the unique position of the Executive Office of the President.” However, AWS cites case law from Bill Clinton’s presidency that set the legal precedent that a sitting president is not immune to civil litigation in federal court for matters that happened before taking office or unrelated to their work in office.

The Pentagon told FedScoop it “strongly opposes the request.”

“Amazon Web Services’ request is unnecessary, burdensome and merely seeks to delay getting this important technology into the hands of our warfighters,” a spokesperson told FedScoop. “The Department of Defense will continue to fight to put this urgently-needed capability into the hands of our men and women in uniform as quickly and efficiently as possible. The Department remains confident in the JEDI award.  Our team’s duty and sole focus must remain on equipping our warfighters for an increasingly complex and challenging battlefield environment.”

In addition to the depositions, AWS also seeks specific written interrogatories on what it calls “some of the most troubling aspects of the JEDI procurement process,” as well as a number of other requests for production of evidence.

Following Monday’s unsealing of Amazon’s motion to supplement the record, nonprofit government ethics watchdogs Project Democracy and Citizens for Responsibility and Ethics in Washington (CREW) filed amicus briefs in support of the company’s request for more information.

“Given the importance of impartiality to the public trust, it is imperative that the Court have all relevant information before it when determining whether the JEDI contract was awarded in accordance with federal law,” CREW’s brief says, before going on to count numerous times Trump has tried to interfere with federal procurements to “to promote his own personal objectives.”

As the brief states: “CREW is concerned that these incidents represent a pattern of disregard for ethics and procurement law in the Trump Administration. Such incidents also bolster the credibility of Plaintiff’s allegations of similarly improper interference by President Trump in the JEDI procurement. These well-grounded allegations deserve to be judged in light of all relevant information.”

AWS’s case for pausing JEDI task orders

Monday, the court also unsealed AWS’s motion asking for an injunction and temporary restraining order against any work under the JEDI contract until its bid protest is settled.

The redacted document, also originally filed in January, details Amazon’s motion, which it has already publicly defended. The company said failure to hold off on task orders while the lawsuit is ongoing could do “irreparable harm.”

“Without an injunction, continued performance of the JEDI Contract could jeopardize the relief available to AWS if it prevails in the protest,” the document says.

The clock is ticking, however. The parties originally agreed to Feb. 11 as the earliest date DOD would award any major task orders to Microsoft under the larger JEDI contract, which has since been extended to Feb. 14.

The DOD spokesperson said the department “will not issue substantive early-adopter task orders until the Court issues a decision on the AWS request for a preliminary injunction. The Department anticipates a decision on that issue this week, and is prepared to begin providing early adopters with urgently-needed unclassified JEDI services starting on Feb. 14.”

-In this Story-

Amazon Web Services (AWS), Dana Deasy, Department of Defense (DOD), Donald Trump, James Mattis, Mark Esper, Microsoft
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