JEDI legal fights press on in two courts
- By Ross Wilkers
- Jan 23, 2020
How often does one possible scene-setting federal technology contract spur two legal battles involving Fortune 500 companies and the U.S. military as a main stakeholder?
The Defense Department’s JEDI cloud infrastructure contract has taken one turn after another since it was first conceived in 2017, but was never intended to be the subject of cases in both the U.S. Court of Federal Claims and the Appeals Court for the Federal Circuit as it is now.
First to the Court of Federal Claims. As anticipated, Amazon Web Services on Wednesday asked a federal judge to direct the Defense Department and Microsoft to pause their work on the JEDI project.
That sealed motion AWS filed to the Court of Federal Claims formally seeks both a temporary restraining order and preliminary injunction to stop the work, pending the outcome of a ruling on that company’s protest of the October award to Microsoft.
Attorneys representing all sides in the matter indicated such a move was in the works earlier this month in a joint status update to the court. DOD and Microsoft indicated then that they would challenge any request for an injunction. Stays in performance regarding contracts under protest must be asked for at the Court of Federal Claims versus the Government Accountability Office, where such pauses are automatic.
AWS filed its protest in November -- which unsealed in December -- to claim that political influence from the Trump Administration and the president’s public comments against Amazon and its founder Jeff Bezos swung the award to Microsoft.
“It is common practice to stay contract performance while a protest is pending and it’s important that the numerous evaluation errors and blatant political interference that impacted the JEDI award decision be reviewed," an AWS spokesperson said Wednesday in a statement. "AWS is absolutely committed to supporting the DOD's modernization efforts and to an expeditious legal process that resolves this matter as quickly as possible.”
DOD and Microsoft previously agreed on limiting their work to “initial preparatory activities” on the JEDI project until Feb. 11. Attorneys involved in the case all asked Judge Patricia E. Campbell-Smith to decide on a potential pause of the project before then under an expedited briefing schedule.
On Jan. 6, the department issued a $1 million task order for training and other professional services work to support tactical edge devices in unclassified environments.
JEDI’s deployment and standup is well behind DOD’s schedule and a pause on the work as AWS requested would push the work back, although that is unclear at the moment. DOD Chief Information Officer Dana Deasy said in December that the department wants JEDI’s unclassified portion up and running by mid-February, then the classified portion six months later and the top secret portion after that.
A Microsoft spokesperson directed all requests for comment to DOD. A department spokesperson said this in a statement to our sister publication FCW:
“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.”
Not to be forgotten is Oracle’s own fight against the JEDI procurement that still centers the company’s complaint: alleged conflicts of interest surrounding people who worked for the competition’s long-regarded favorite AWS and DOD, plus the single-award process and requirements bidders had to fulfill.
Oracle took its grievances to the Court of Appeals for the Federal Circuit in November after the company lost a pre-award protest at the Court of Federal Claims. In the new forum, Oracle is not allowed to introduce new evidence or facts not presented the in original forum. DOD and AWS are both listed as defendants in Oracle’s complaint there.
In a 43-page filing submitted Tuesday, Oracle pushed back against DOD’s contention that the company should get out of its legal proceedings because Microsoft’s win of the contract renders the former’s whole exercise moot.
For one, Oracle cites the DOD Office of the Inspector General as still investigating both those same conflict-of-interest allegations and alleged violations of federal procurement law by the department, including its making of JEDI a single-award contract and thus limiting competition.
DOD must show that those potential conflicts will not happen again in future procurements, Oracle said, as JEDI “is not more trustworthy because AWS’ henchman got caught and someone else received the contract.”
Oracle was eliminated from the JEDI competition in an initial downselect after it could not meet a key security requirement in JEDI’s solicitation. The company continues to claim that DOD knew all along that only AWS and Microsoft could meet that criteria.
Court of Federal Claims Judge Eric Bruggink’s ruling against Oracle in July of last year said that failure to meet the gate criteria meant the company did not have standing to lodge its protest, despite his other finding that DOD’s justification for making JEDI a single-award contract had some fault.
Indefinite-delivery/indefinite-quantity task order contracts with ceiling values over $112 million must go to more than one awardee, but the Federal Acquisition Regulation does allow for exceptions.
Ross Wilkers is a senior staff writer for Washington Technology. He can be reached at firstname.lastname@example.org. Follow him on Twitter: @rosswilkers. Also find and connect with him on LinkedIn.