Amazon Web Services (AWS) filed a bid protest against the Department of Defense in late November for the awarding of the Joint Enterprise Defense Infrastructure (JEDI) to Microsoft (AMAZON WEB SERVICES, INC. v. USA 1:19-cv-01796). While Microsoft is not named as a defendant, Microsoft filed a motion to intervene the same day as the complaint was filed. The motion was granted four days later. The JEDI contract is a multi-billion-dollar government contract for cloud computing services.
Many of the documents related to this case are under seal. A redacted version of Amazon’s protest was released last week. The protest formalizes complaints that Amazon has made publicly regarding the bidding process. These complaints include the allegation of Microsoft’s underqualification, DoD errors in its evaluation of the companies, and the interference of President Trump in the bidding process. The core of the complaint stems from President Trump’s widely publicized dislike of Jeff Bezos, CEO of Amazon and the owner of the Washington Post.
Redacted portions of the document seem to include the details of the evaluation process and Microsoft’s proposal that the plaintiff stipulates as proof of wrongdoing. They also explain that the DoD miscalculated the effectiveness of Amazon’s Snowball Edge device despite its current usage by DoD organizations. While mostly redacted, the complaint details several points on which the DoD evaluations were flawed. Based on available non-redacted information, the companies were assessed on nine factors and of these Amazon disputed the assessment of as least factors 2, 3, 4, 5, 6, and 8. Some of Amazon’s issues with the evaluation process on these factors are that the DoD “fundamentally misunderstood AWS’s cloud solution;” did not evaluate the most current versions of Amazon’s technology; deviated from the stated requirements for JEDI project; and arbitrarily ignored specific positive elements of Amazon’s proposal including its networking functionality, cryptography protections, and CloudFormation service.
The complaint enumerates many instances in which President Trump made very public statements about his dislike of Amazon and Bezos, including Twitter posts. It cites several instances in which Trump refers to the bid for JEDI and Amazon’s bidding prospects directly. Trump also asked Secretary of Defense Mark Esper to evaluate the bids himself. This level of interference is unprecedented.
Amazon repeatedly cited their established hegemony in the marketplace over Microsoft in the field of cloud computing. It also stated that Microsoft did not meet certain technical requirements of the JEDI contract. Since the award of the JEDI contract, Microsoft has announced a new cloud computing endeavor, in which they will partner with AT&T to use their new 5G networks to bring cloud computing services to businesses and residents of cities all over America. Amazon states that that Microsoft cannot compete with Amazon’s security, speed, and efficiency on its own. According to the complaint, the “DoD took numerous actions to systematically remove the advantages of AWS’s technological and experiential superiority and artificially level the playing field between AWS and its competitors, including Microsoft.” Amazon viewed this action as highly irregular due to the nature of the contract and its relevance to national security.
Amazon argued that each of these flaws on their own merit a reassessment of the bidding process. The plaintiff asked for the judge to award attorney’s fees and costs, to declare the awarding of the contract to Microsoft as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” force the DoD to perform a reevaluation of the previous proposals or evaluate updated proposals, and prevent the DoD and Microsoft from beginning work on the JEDI contract before all proposals are reassessed. Amazon is not seeking to be awarded the contract outright. Amazon is being represented by Morrison & Foerster. Microsoft is being represented by Rogers Joseph O’Donnell.
