Judge gives DOD the chance for a second look at some aspects of the JEDI award

The Pentagon is getting the chance for a do-over of some aspects of its controversial $10 billion cloud award to Microsoft.

U.S. Rep. Adam Smith, Chairman of the House Armed Service Committee, is briefed on the capabilities of the F-35A Lightning II during his visit at Luke Air Force Base, Ariz., Oct. 10, 2019.  (U.S. Air Force photo by Tech. Sgt. Jensen Stidham)

The chairman of the House Armed Services Committee on an October, 2019 visit to Luke Air Force Base in Arizona. (USAF photo)

The judge hearing Amazon Web Service's bid protest lawsuit against the Defense Department agreed to a 120-day remand while DOD reconsiders portions of the Joint Enterprise Defense Infrastructure procurement.

The news came in a sealed order on April 17.

The stay is good through Aug. 17, 2020, but could be extended or shortened depending on how long it takes officials to complete a partial review of the procurement.

AWS is suing over the award of the $10 billion cloud contract to Microsoft, alleging that political interference at the White House influenced the deal and that certain technical aspects of the bids were incorrectly understood by contracting officials.

The Pentagon sought the remand to reconsider certain technical aspects of the procurement and, it said, "to accept limited proposal revisions addressing the offerors' technical approach" to pricing data storage.

According to court filings DOD said it "wishes to reconsider its evaluation of the offerors' online marketplace offerings and may conduct clarifications with the offerors relating to the availability of marketplace offerings." The marketplace, in the JEDI solicitation, refers to a cloud provider's ability to furnish applications and software and development tools inside the cloud environment.

AWS argued against the remand, stating that "its proposed corrective action is irrational and would result in a predetermined re-award of the JEDI contract to Microsoft -- a fundamental breach of the very premise of corrective action."

Microsoft, which is a party to the government's case, said that AWS lost fair and square.

"Amazon did build its pricing for the entire procurement, and it wasn’t good enough to win. And now it wants a re-do," Microsoft Deputy General Counsel Jon Palmer argued in an April 15 blog post.

AWS says it's not that simple. "AWS must have the ability to compete on value-which is the combination of technical solution and price," the company stated in a filing.

DOD welcomed the remand.

"We will immediately execute the procedures outlined in the motion for voluntary remand, issuing a solicitation amendment to allow for limited proposal revisions and a reevaluation of the proposals," Pentagon spokesman Lt. Col. Robert Carver said in a press statement.

Watchdog report

The remand comes just a few days after the DOD's Office of Inspector General issued its long-awaited report on JEDI.

One of Capitol Hill's top defense barons is eager for the Department of Defense to get moving on its $10 billion cloud infrastructure project and get past a drawn-out period of oversight and second guessing.

Rep. Adam Smith (D-Wash.), the chairman of the House Armed Services Committee, was reassured by a recent report from DOD's Office of Inspector General that validated claims by DOD that the single-award structure and technical requirements of the Joint Enterprise Defense Infrastructure contract were proper.

The Pentagon's internal watchdog recently completed a probe into the massive cloud contract, which was awarded to Microsoft, focusing on certain aspects of the design of the solicitation, allegations of conflicts of interest among key DOD personnel and allegations that President Donald Trump's personal and well-documented animus toward Amazon founder and CEO Jeff Bezos influenced the DOD's decision to award the contact to Microsoft. Amazon Web Services was a finalist in the bidding and was thought by many industry observers to have a leg up because of its experience in delivering classified cloud computing infrastructure to the CIA.

According to the IG report, White House lawyers rebuffed efforts to interview top-level DOD officials on the subject of political interference and directed Pentagon lawyers to place conditions on interviews that did take place in order to protect privilege attached to "presidential communications."

Smith took umbrage at the effort to stiff-arm investigators but also backed the report's conclusions that rank-and-file acquisitions personnel weren't subject to political interference.

"While the White House's refusal to participate in the investigation makes it impossible to know if the administration attempted to interfere at a high level, the report's findings show that DOD personnel involved in the contract proposals and award selections were not pressured by any DOD leader nor the White House," Smith said in a statement. "That is good news."

The findings however, Smith continued, "are stained" by the lack of cooperation from the White House.

"This administration's complete disregard for independent oversight is further highlighted by the president's recent firing of the Department’s acting Inspector General. I commend the Inspector General for completing a thorough inquiry under challenging circumstances and I look forward to the Department moving forward in development of critical cloud computing infrastructure."

This story was updated April 17 with news from the AWS bid protest lawsuit.

 

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