One of Microsoft's top legal minds has weighed in on what the DOD Inspector General's JEDI report means as we look at what investigators were told by current and former department officials, some of which AWS wants more information from.
The Defense Department’s inspector general reviewed 31.2 gigabytes of emails and 1 gigabyte of documents including memos, reports, travel calendars and meeting agendas to compile the 313-page review of the JEDI cloud infrastructure procurement released Wednesday.
Auditors also interviewed more than 80 people that include several current and former high-ranking DOD officials, four of whom Amazon Web Services also wants to depose in its lawsuit at the Court of Federal Claims over the massive contract. AWS also wants a deposition of President Trump.
In the wake of the IG report, Microsoft sees matters as largely settled and its Deputy General Counsel Jon Palmer wrote in a blog post Wednesday that AWS is “hoping to rescue its losing proposal” now that it has proprietary information about the winner’s bid.
AWS “lawfully received some information about Microsoft’s winning price” and now also has information “it should not have received or used,” Palmer wrote in citing the IG report that said the accidental disclosure “could potentially give (AWS) an ‘unfair advantage in the cloud services marketplace.’”
“Amazon would have you believe that it lost the award because of bias at the highest levels of government. But Amazon, alone, is responsible for the pricing it offered,” Palmer added.
We requested an AWS response to Palmer’s blog post and will update this story upon receipt.
In her March ruling to grant an injunction on JEDI, Judge Patricia E. Campbell-Smith found one aspect of data storage in Microsoft’s bid was out of compliance with the solicitation. Smith has yet to rule on DOD’s request for a corrective action that would reconsider limited proposal revisions and make a new award.
The IG said it could not substantiate allegations of White House interference in the JEDI contract being awarded to Microsoft last year but the IG also said it could not confirm much of it directly. Many current DOD officials were instructed by Pentagon attorneys to not talk about communications with the White House about JEDI, while the White House claimed “presidential communications privilege” and also declined to make people available for interviews.
Here are the current and former DOD officials that AWS wants depositions from and what they told the IG. No department officials who were directly involved in the evaluation and source selection process told the IG they felt any outside influence or pressure on the decision, according to the report.
Former Defense Secretary James Mattis is one of those people AWS is seeking a deposition from. A book published last year by former speechwriter Guy Snodgrass claims President Trump directed Mattis to “screw Amazon” out of winning the contract. Mattis allegedly then relayed that exchange to staffers in a meeting and said the procurement would “be done by the book, both legally and ethically.”
Mattis told the IG he “cannot confirm” that account and does not “recall the president’s words on this (JEDI). He also said he could not recall that meeting and that “from the very beginning the book is full of inaccuracies.”
Regarding assertions that there was White House pressure, Mattis said there was none and that he “knew (Trump) probably wouldn’t like it much if Amazon won, but that frankly wasn’t my concern as long as we did it right.”
Current Defense Secretary Mark Esper told the IG’s office he had no involvement in the original 2017 DOD enterprise cloud adoption initiative nor the subsequent JEDI cloud procurement before he became secretary in July 2019. He then directed a review to learn about the program and understand both the process and complaints about it from both Capitol Hill and industry rivals of AWS and Microsoft.
After the review sessions finished, Esper recused himself on Oct. 7, 2019, due to his son’s employment with initial bidder IBM and turned decision briefings and determinations over to Deputy Defense Secretary David Norquist. Esper said he learned of the bid by IBM in September, nearly five months after the first downselect that also knocked out Oracle and left AWS and Microsoft as the only competitors.
Norquist subsequently approved DOD Chief Information Officer Dana Deasy to finalize the JEDI source selection and received notice from the inspector general’s office that the investigation uncovered no evidence that would prevent an award being made.
Regarding Esper’s review of JEDI, Deasy said the secretary did not mention Trump or White House staff members as a reason for doing so. Deasy told the IG White House staff did not ask for and he did not share any information with them about the review.
One conversation did take place between Deasy and Trump on Feb. 11, 2019 at a White House event, where the president asked if Deasy was aware of “cloud noise.” Deasy responded that he heard noise about the JEDI cloud and said that was the end of the conversation.
At that same meeting, White House CIO Roger L. Stone asked Deasy about the possibility of the former’s office placing orders against JEDI after award. Deasy told the IG that discussion centered around secured communications capabilities, but not contract competitors. The DOD CIO’s office oversees provision of those services to the White House.
DOD attorneys apparently never directed Deasy to not answer any questions asked by the IG’s office about communications with the White House.
The former deputy defense secretary told the IG "he could not recall any meeting" where his-then boss Mattis discussed any conversations with Trump about JEDI, including the one Snodgrass describes in his book.
Shanhan told the IG he disregarded all of Trump's public statements about Amazon and never discussed any matters related to that company, the JEDI effort or Amazon founder Jeff Bezos. Shanahan also spoke highly of the work Deasy and other team members put into the JEDI program and called it "one of the finest efforts I’ve ever witnessed" with respect to "running a fair and open competition."
AWS also wants depositions from the JEDI source selection authority, the chairpersons of the source selection advisory council and source selection evaluation board, and both a current and former director of the DOD WHS organization that oversaw the procurement.