With the Department of Defense telling a court that it wishes to reconsider awarding Microsoft a major cloud contract, one would think that litigator and competitor AWS would be in a good mood.
But Amazon Web Services has said that it worries that the DoD will simply give Microsoft a chance to tweak its offering so that it could re-award the potentially $10bn JEDI contract to the same company all over again.
The war in Afghanistan will finish before this is awarded
In October, the DoD awarded the $10bn JEDI cloud contract to Microsoft, after a year of wrangling that also involved Oracle. Since October, AWS has been proceeding with a court case protesting the award. Earlier this month, the DoD said in a court filing that it "wishes to reconsider its award decision in response to the other technical challenges presented by AWS." The filing came after a judge said that AWS was "likely to succeed" in showing Microsoft's storage solution for JEDI was non-compliant with the contract.
The court granted the Pentagon 120 days to review the results, but no mention was given to the wider allegations brought by AWS in its original court filing - that Microsoft won the contract due to interference by the President of the United States. Amazon alleges that President Trump's personal animosity to Jeff Bezos, CEO of Amazon and owner of the Washington Post, had stymied its chances at winning the contract to serve most of the military's computing needs.
After the court decision, AWS initially said that it was pleased and looked "forward to complete, fair, and effective corrective action that fully insulates the re-evaluation from political influence and corrects the many issues affecting the initial flawed award."
Now, newly released court documents show the company taking a more aggressive stance, with the company filing an opposition to the voluntary remand (attached below).
"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," Amazon lawyers said.
The company claims that the court’s decision to grant it a Motion for Preliminary Injunction "makes clear that Microsoft is likely ineligible for the JEDI award." DoD's proposal to amend the contract's Price Scenario 6 requirements "would enable Microsoft to resurrect its eligibility while depriving AWS of a reasonable opportunity to revise its proposal in response to changed requirements," Amazon alleges. "Moreover, despite 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."
Elsewhere in the court documents, the company said that the DoD has provided no meaningful commitment to evaluate other potential contract errors highlighted by AWS, and said that the military was instead "suggesting anemically" to 'reconsider.'
An AWS spokesperson told DCD that the company was "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. 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.”
The DoD has long denied any political interference in the contract. Some of Amazon's case is based on public tweets by the President, which criticized Amazon, Jeff Bezos, and its front-runner status in JEDI.
Another part of the case rests on the claim that Trump told former Defense Secretary Jim Mattis to "screw Amazon" and tried to get the then-Secretary to stop AWS from winning the award. The allegation was made in a book written by Guy Snodgrass, a speechwriter for Mattis at the time. Snodgrass declined to comment.
When the DoD said it would reevaluate the contract, Microsoft’s corporate vice president of communications Frank X. Shaw said: “The decision disagreed with a lone technical finding by the Department of Defense about data storage under the evaluation of one sub-element of one price scenario. We have confidence in our technology, our bid, and the professional staff at the Department of Defense." DCD has contacted the company for a comment on the latest development, and will update this story when we learn more.
Shaw continued: "We believe that we will ultimately be able to move forward with the work. Time matters because those who serve our country urgently need access to this essential modern technology.”
Amazon's lawyers also claim that Microsoft's relatively positive response to the reevaluation is in itself dubious. "Microsoft’s most recent public statements applauding the unreasonably narrow focus of the corrective action further bolster real and well-grounded suspicion that DoD plans to ensure the eventual award of the contract to Microsoft," AWS's attorney of record Kevin P. Mullen said in the court filing.