Court unseals Amazon Web Services' JEDI protest

Amazon Web Services has already cited public comments by President Donald Trump against the company and its founder-CEO Jeff Bezos in the its protest of the Defense Department’s award of the JEDI cloud infrastructure contract to Microsoft.

Now in a 103-page complaint to the Court of Federal Claims unsealed Monday, AWS goes right after the source selection process that took place behind the scenes at DOD as the agency evaluated bids.

The crux of AWS’ case: How Trump weighed in on the matter publicly had direct impacts on what happened privately and swayed the award to Microsoft. AWS has already submitted four accompanying videos of those comments to the court.

In the much-redacted complaint, AWS claims that DOD officials from the highest levels all the way to the source selection groups made a series of steps in the buildup to the final award decision that cannot be understood without looking at how Trump intervened at various points in the acquisition process.

Particularly this one: Trump in July asked Defense Secretary Mark Esper to review the JEDI procurement after claiming “tremendous complaints” had come in about it from competitors worried the fix was in for AWS to win.

Esper recused himself from the process on Oct. 22 due to his son’s employment at IBM. But DOD determined Microsoft as the winner on Oct. 17 and announced the decision on Oct. 25: a surprise to some market watchers but not others.

One action item AWS has not requested so far is an injunction to halt Microsoft’s work on the contract. DOD has told the court it will not proceed on performance beyond initial preparatory activities until at least Feb. 11, 2020. Because of that, AWS and DOD agreed that a ruling to pause the contract is not needed for now. Microsoft President Brad Smith told CNBC on Saturday that his company has moved fast on getting ready to start the project.

AWS’ complaint blacks out a majority of DOD’s conclusions about the proposals AWS and Microsoft offered, other than the fact of who the department chose in the end. Prices and details about the technical aspects of each proposal such as those regarding security are blacked out.

The complaint does cryptically mention a similar cloud contract AWS won in 2013. Much of that is blacked out, but could point to AWS’ ongoing work with the intelligence community to build a cloud infrastructure and how the company may have sought to leverage some of its experience there in a JEDI bid.

AWS claims that in mid-2018, DOD refused to evaluate past performance that only AWS held through a “contract remotely comparable to the size and complexity of JEDI."

Also according to AWS’ complaint, DOD in May of this year changed how it would interpret requirements in the solicitation regarding classified infrastructure and rejected AWS’ plans to use existing data centers already certified for use by federal agencies.

The company says that decision essentially required the company to build a new, dedicated classified infrastructure for the JEDI cloud and hence raise the price of the revised proposal. The company sent four other revisions between mid-July and early August. No details in AWS’ filing mention if and when Microsoft had to send its revisions.

Keep in mind there that initial bids for JEDI were due to DOD in October 2018. The field was narrowed from four bids to two in April of this year with AWS and Microsoft left standing. IBM was eliminated and so was Oracle, which has an outstanding case over its elimination at the Court of Appeals for the Federal Circuit. Esper’s son began working at IBM in April of this year, six months after those bids were due.

AWS claims that it has not received substantive answers to all of the 265 questions submitted to DOD as part of the post-award debriefing process. The company claims that DOD instead determined which questions were relevant and largely gave broad responses with generic references to the agency’s evaluation reports.

In late October, DOD Chief Information Officer Dana Deasy defended to lawmakers how the department worked through the JEDI procurement with separate teams built that could not see what the other groups did. JEDI was managed by DOD’s Washington Headquarters Service that reports directly to the defense secretary’s office.

AWS claims the organizational structure made political influence more likely on Deasy, Esper and others involved in the source selection despite the anonymity of the teams involved. DOD has not filed a response to the AWS complaint. It faces a deadline of Jan. 21 to make its own filing to the court and Microsoft will likely also give a response given its status as an intervenor-defendant.