Pre and Post Award Bid Protest

Amazon Asks Court of Federal Claims to Stay of the JEDI Contract

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On January 23, 2020, in a sealed motion to the U.S. Court of Federal Claims, Amazon requested both a temporary restraining order and a preliminary injunction to prevent the Pentagon and Microsoft from commencing the multibillion dollar JEDI contract.

The Department of Defense (the “DoD”) has previously indicated it intended to issue its first task order to Microsoft on February 11, 2020, and has also said it expected to make the unclassified portions of the long-awaited JEDI Cloud available to Defense users in the same month.

Award of JEDI Project

On October 25, 2019, the DoD announced that Microsoft won its JEDI cloud contract, worth up to $10 billion over a period of 10-years. With this, Microsoft  will provide infrastructure and platform services for both the Pentagon’s business and mission operations. The JEDI contract seeks to unify United States military agencies’ disparate computing systems and lay a framework for advanced artificial-intelligence tools.
Microsoft beat out Amazon  in the final round for this lucrative contract after the two cloud giants beat out other competitors like IBM and Oracle in an earlier round. Most experts considered Amazon to be the frontrunner to win the deal.

Amazon Claims Concern Trump’s Influence in Award

Amazon is seeking to force the Pentagon to halt work on the massive cloud computing contract recently awarded to its biggest competitor, Microsoft, as it pursues allegations that President Trump improperly meddled with defense funds to act on a grudge against Amazon founder Jeff Bezos.

“The publicly available record of President Trump’s statements and actions demonstrates that he repeatedly attacked and vilified his perceived political enemy – Mr. Bezos…and then intervened in this procurement process to thwart the fair administration of DoD’s procurement of technology and services critical to the modernization of the U.S. military,” Amazon wrote in the filing.

In a statement, Amazon spokesman Drew Herdener said it is “common practice” to halt contract performance during a bid protest and emphasized that his company supports the Defense Department’s technology initiatives.

“It’s important that the numerous evaluation errors and blatant political interference that impacted the JEDI award decision be reviewed,” Herdener said 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’s Response

Defense officials have said the award followed all laws and regulations and have insisted the decision-making process that led to Microsoft’s win was walled off from presidential influence. Microsoft spokesman Bill Calder declined to comment on Amazon’s motion.

“The department remains confident in the JEDI award,” Rachel VanJohnson, a spokeswoman with the Defense Department’s Cloud Computing Program Office, said in an email in December 2019. “Our team’s duty and sole focus must remain on equipping our warfighters for an increasingly complex and challenging battlefield environment.”

She added that the Pentagon will implement the JEDI contract as soon as possible: “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.”

Current Status

Unlike bid protests at the Government Accountability Office (the “GAO”), stays are not automatic when losing bidders challenge contracts at the Court of Federal Claims, and a judge must specifically issue an injunction or restraining order to stop work on a contested contract while the legal challenge unfolds.

Amazon could have sought an order to prevent the Pentagon from immediately moving forward with the new contract, but its filing notes that the DoD assured that it would not proceed with the contract until at least February 11, 2020. Accordingly, Amazon and the Pentagon agreed that a temporary restraining order and preliminary injunction were not necessary at that time. However, Amazon reserved the right to move for such immediate injunctive relief if the DoD decides to proceed with the JEDI contract in advance of the Court’s resolution of Amazon’s protest.

Amazon’s motion did not come as a surprise to the Pentagon. Amazon gave notice of its plans to request a temporary restraining order and a preliminary injunction as part of a status update that its attorneys and the Justice Department filed jointly with the Court of Federal Claims on January 13, 2020.

In the status report, Amazon stated, “AWS intends to file a motion for temporary restraining order and/or preliminary injunction to prevent the issuance of substantive task orders under the contract…given the United States’ consistent position that the services to be procured under the Contract are urgently needed in support of national security.”

Neither the Pentagon nor Microsoft have released a statement in reference to Amazon’s requests. However, according to the released status report, the Pentagon and Microsoft must file their responses to Amazon’s motion by January 31, 2020. If you believe there may a basis for protesting either a solicitation (pre-award bid protest) or a contract award (post-award bid protest), you can find further information in Whitcomb, Selinsky PC’s “All-Encompassing Guide” to bid protests here: Guide to Bid Posts If, after reviewing the All-Encompassing Guide, you consider a bid protest may be justified, you should promptly speak with an attorney at Whitcomb, Selinsky PC. Time is of the essence as the General Accounting Office requires you to file a protest within 10 days of learning about a deficiency in a solicitation or in the bidding process. In the alternative, you have 1 year after discovering a deficiency to file a protest with the Court of Federal Claims.

About the AuthorWhitcomb, Selinsky, PC Staff

Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.


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