Pentagon’s corrective action an attempt to ‘gerrymander’ JEDI in Microsoft’s favor, AWS says

Editor’s Note: This story has been updated with comment from the Department of Defense.

Amazon believes that the Pentagon’s move to take corrective action on the Joint Enterprise Defense Infrastructure (JEDI) cloud contract is an attempt to “gerrymander” the acquisition in Microsoft’s favor once again, the company said Tuesday.

Amazon Web Services filed a response Tuesday opposing the Department of Defense’s recent motion to remand the case and re-evaluate parts of its departmentwide enterprise cloud contract. The company argues that the department’s proposed corrective action is narrowly focused so it can reaffirm its October award to Microsoft short of any final decision on the protest in the court.

AWS has challenged the $10 billion JEDI award claiming that DOD, politically influenced by the bias of President Donald Trump against Amazon, committed errors in evaluating six of the eight factors in the procurement.

“The corrective action DoD proposes fails the tests of rationality and fairness, violates the broad discretion afforded an agency for addressing a procurement impropriety, and suggests that DoD seeks to take whatever corrective action is necessary to reaffirm its prior award to Microsoft despite the material defects the Court identified and DoD has now acknowledged,” says the filing. “The Government should not be permitted to gerrymander the corrective action to preserve the illusion that Microsoft offered the lowest price while simultaneously perpetuating competitive impediments for AWS, the only offeror that submitted a compliant proposal eligible for award.”

DOD’s proposal for corrective action came after the court ruled in Amazon’s favor granting an injunction of work under the contract while the protest is litigated. In the order, the Court of Federal Claims said that Amazon is “likely to succeed” in showing that the Department of Defense erred, at least in part, in how it evaluated bids.

That order focused on a singular deficiency in the larger acquisition —a specific pricing scenario for online cloud storage — as the court found it “sufficient to justify preliminary injunctive relief.” It did not evaluate any of the remaining errors alleged by AWS in its complaint. Nevertheless, Amazon believes that Microsoft should have been ineligible for award because of the “material” deficiency

The Pentagon said in its voluntary motion to remand earlier this month that it “wishes to reconsider its evaluation of the technical aspects [that specific pricing scenario] and intends to issue a solicitation amendment and to accept limited proposal revisions addressing the offerors’ technical approach to that price scenario.”

In its filing Tuesday, Amazon says that it’s not enough. “[D]espite a passing nod in the right direction, DoD does not meaningfully commit to reconsider the other evaluation errors identified in the protest that produced the flawed award to Microsoft.

An AWS spokesperson told FedScoop “we’re concerned that the proposed approach is not designed to provide a complete, fair, and effective re-evaluation.”

“Both earlier in the adjudication process when we submitted 265 questions to the DoD that they refused to answer and in our protest where we outlined numerous significant flaws in the evaluation, it’s been clear that there were many problems with the DoD’s initial decision,” the spokesperson said. “Instead of addressing the breadth of problems in its proposed corrective action, the DoD’s proposal focuses only on providing Microsoft a ‘do-over’ on its fatally flawed bid while preventing AWS from adjusting its own pricing in response to the DoD’s new storage criteria. This attempt to gerrymander the corrective action without fixing all of the serious flaws pointed out in our complaint raises significant questions.”

DOD spokesperson Lt. Col. Robert Carver told FedScoop the department disagrees with Amazon’s argument and that “the best and most reasonable path forward is to issue a solicitation amendment and accept limited proposal revisions before conducting a re-evaluation of both proposals.”

“The Department maintains that the JEDI Cloud contract was awarded based upon a fair and unbiased source selection process, and any re-evaluation on remand will also be conducted in a fair and unbiased manner,” Carver said. “Our goal remains to get this much-needed capability to the warfighter as quickly as possible in compliance with the law and the court.”