Amazon filed an opposition to the Department of Defense’s motion for voluntary remand in the Joint Enterprise Defense Infrastructure contract case, also known as JEDI. The DOD requested 120 days for review to reconsider their evaluation and conduct clarifications with the offerors bidding for the contract to develop and maintain the military’s cloud computing architecture.
The DOD awarded the JEDI contract to Microsoft in 2019, but Amazon filed a lawsuit arguing an anti-Amazon bias kept them from receiving the contract despite their proposal being the better option. Amazon claims Microsoft’s proposal did not meet the DOD requirements because they used a different type of storage, allowing them to present a less expensive bid. Earlier this month, Judge Campbell-Smith said Amazon is “likely to succeed.” Amazon is represented by Morrison & Foerster.
The DOD asked for the voluntary remand “to reconsider its award decision in response to the other technical challenges presented by [Amazon]. DOD does not intend to conduct discussions with offerors or to accept proposal revisions with respect to any aspect of the solicitation other than Price Scenario 6. At this time, DOD does not anticipate clarifications being necessary on issues other than the offerors’ online marketplace offerings.” This means offerors would not be permitted to add storage solutions to their proposals but could adjust which solutions in their proposal would address Price Scenario 6, one of the aspects of Microsoft’s proposal that Amazon alleges was deficient.
Amazon claims in the opposition that this action proposed by the DOD “fails the tests of rationality and fairness, violates the broad discretion afforded an agency for addressing a procurement impropriety, and suggests that the 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.” They say the request by the DOD is contrary to the decision of the court to grant Amazon’s motion for a preliminary injunction.
“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,” Amazon alleges. They claim the remand is a way to “preserve the illusion” that Microsoft presented a deal comparable to Amazon’s at a better price and the DOD offered no details for how they were going to address the issue. The remand, Amazon alleges, would allow Microsoft to adjust their proposal to fix issues in their proposal discussed in the case but would not provide Amazon a way to adjust their proposed pricing or feedback on what aspects of their proposal caused it to not be chosen.
Amazon also said if the remand is granted the offerors should be able to adjust the unit prices and discounts in addition to the services proposed in Price Scenario 6. “This limitation is unreasonable because it would hold static the offerors’ unit and discount pricing for Price Scenario 6 while amending the requirements upon which that pricing depends. It also would directly and unreasonably benefit Microsoft, allowing it to retain the discounts specifically designed for its currently deficient approach while preventing AWS from offering pricing and discounts based upon the changes to the Government’s projected needs,” the opposition states.
A response to Amazon’s objection to the remand is due on March 31.
