Oftentimes, a decision not to file a pre-award protest can leave an unsuccessful offeror without an opportunity to be heard at the Court of Federal Claims (COFC). However, the extraordinary circumstances surrounding the JEDI Contract and the Trump Administration’s ongoing, publicized aversion to Amazon could save Amazon Web Service’s (AWS) bias allegations against the Pentagon from an early dismissal.
Since filing its protest with the COFC in November 2019, AWS has continued its aggressive attack on the Pentagon’s decision to award the JEDI contract to Microsoft in the new year. More recently, on February 13, 2020, AWS received an encouraging ruling from the COFC, wherein a federal judge ordered an injunction staying performance of the lucrative cloud computing procurement, significantly hampering Microsoft’s and the Pentagon’s ability to finally begin work on the long-contested contract.
After losing its ability to prevent the delay in performance, the Pentagon, and Microsoft as intervenor, have now shifted their focus to AWS’s allegations of bias raised in its complaint. Specifically, during a court proceeding, AWS alleged that the procurement process was “compromised and negatively affected by the bias [against AWS] expressed publicly by the president and commander in chief, Donald Trump.” The Pentagon and Microsoft have narrowed in on this allegation in an attempt to partially dismiss it, and instead, asks the Court to focus merely on the Pentagon’s evaluation process.
In support of its partial motion to dismiss, the Pentagon cites Blue & Gold Fleet, LP v. United States, 492 F.3d 1308 (Fed. Cir. 2007). Blue & Gold has long held that a party who has the opportunity to object to an unfair solicitation, and fails to do so prior to the closing of the bidding process, waives its ability to raise the same objection subsequently in a post-award protest action. Id. at 1313. Ultimately, the Pentagon argues that AWS’s factual claims of “unmistakeable bias” and President Trump’s distaste for AWS, were known to AWS prior to the award to Microsoft, and should have been raised prior to the close of bidding. In defense, AWS maintains, among other things, that President Trump’s interference in the procurement, and the Pentagon’s bias towards AWS, was not clear until AWS was noticed that Microsoft received the award, and AWS was denied an in-person debriefing by the Pentagon.
Understanding the delicate and unprecedented nature of AWS’s allegations against the Trump administration, and the fact that the COFC found merit in AWS’s request for a stay in performance, it is less likely that the COFC will easily grant the partial motion to dismiss. Presently, AWS is still moving for the Pentagon to include additional documents and communications to the administrative record that it believes have been purposefully omitted. Since such issues relative to the administrative record are still unresolved, the COFC will likely want to ensure that a fulsome record exists before making a dispositive decision on AWS’s bias claims.