AWS looks to expand record in JEDI lawsuit

AWS filed suit after the Joint Enterprise Defense Infrastructure contract was awarded to Microsoft last October. The suit claims, among other things, that President Donald Trump's personal animus toward Jeff Bezos, the founder and CEO of AWS parent company Amazon influenced the JEDI contract decision.

Despite the addition of more than 1,000 pages of documents to the administrative record in the case, AWS complained in a Feb. 10 court filing made public last week that the government "continues to obstruct the adjudication of this process upon a complete record because the AR [administrative record] is still missing materials that DOD generated and considered in reaching its award decision." 

Further, AWS says the record is incomplete despite court orders to supply "informal documents" including emails and Slack channel chats that so far have not been forthcoming.

Lawyers representing the Defense Department have argued that some of the material in question is deliberative or pre-decisional and not subject to inclusion.

AWS is seeking a PowerPoint document titled "JEDI Option Space," a briefing delivered to Defense Secretary Mark Esper in July 2019. Esper had promised to review the JEDI program one day after he was confirmed in his new job. AWS alleges the PowerPoint and associated memoranda were "cherry-picked…for exclusion" from the record. AWS argues that that the documents couldn't be deliberative in nature because Esper and other senior officials briefed on the program weren't part of the source selection team.

AWS is also seeking material on the role of senior procurement official Stacy Cummings, who had communications with the source selection team and high-ranking personnel at DOD on JEDI and who recused herself from participating in the cloud acquisition in September for reasons that are redacted in the filing.

The filing also probed the issue of Esper's own recusal from JEDI because of his adult son's employment at IBM, once a bidder for the cloud deal, suggesting the reasons supplied by DOD were "pretexual" given that it was announced "the same day that [Esper] defended the propriety of his review of the JEDI contract" to Sens. Mark Warner (D-Va.) and Jack Reed (D-R.I.) Separately, in a Feb. 7 filing made public last week, AWS said that Esper's recusal announcement was misleading because the source selection authority had made a decision to award the contract to Microsoft five days earlier.

In that second filing, AWS also argued that that it had established enough of a case about political interference in the JEDI award to justify depositions of Trump, Esper, DOD CIO Dana Deasy and former Defense Secretary James Mattis.

Government attorneys have stated that AWS has failed to "connect the dots" between Trump's tweets and public utterances. Trump is on record at several points criticizing the conduct of the procurement, noting the ire of AWS rivals and taking shots at Bezos. Additionally, a book written by an aide to Mattis records that Trump directed Mattis to "screw Amazon" out of the lucrative contract.

AWS argued that the decisions detailed in the procurement record "are replete with substantive and pervasive errors that permeate nearly every evaluation factor," which "had the effect of creating a false parity between the offers."