The ongoing public feud between Microsoft and Amazon Web Services (“AWS”) over the Department of Defense’s (“DOD”) Joint Enterprise Defense Infrastructure (“JEDI”) Cloud contract saw three major developments over the last thirty (30) days. This blog provides an update on the JEDI protest, which has potential implications for the government contracting community.
On April 13, 2020, the Pentagon’s watchdog, Office of Inspector General (“OIG”), released a 313-page report on several controversies surrounding the $10 billion JEDI procurement, including allegations of undue influence from the Trump administration, improper disclosures of source selection and Microsoft proprietary information, and ethical misconduct on the part of several former DOD officials. Ultimately, while the OIG found no evidence of inappropriate White House pressure, the watchdog could not come to a full determination, due to the administration’s claims of a “presidential communications privilege” preventing DOD officials from disclosing content about communications with the White House.
Just two days later, the federal judge overseeing AWS’s lawsuit challenging the JEDI award to Microsoft granted the Pentagon’s request to halt the suit to allow the DOD to reconsider specific aspects of its acquisition. The judge’s order paused AWS’s bid protest for 120 days, until August 17, to allow the DoD to review and revise the contract to address at least one evaluation flaw the Court of Federal Claims (“COFC”) previously identified with a price scenario regarding data storage offerings. The order allows Microsoft and AWS to submit pricing proposals based on the new acquisition requirements.
Most recently, and in line with the judge’s order, the DOD reviewed and made respective changes to the procurement. However, on Tuesday, May 6, 2020, all interested parties received notice that AWS had filed a protest directly with the DOD challenging the DOD’s revisions to the acquisition and seeking clarification on certain amended requirements that AWS believes are ambiguous. A protest to the agency generally is timely if filed before bid opening or the date set for receipt of proposals (for solicitation improprieties) or no later than 10 days after the protest ground was known or should have been known (for all other grounds). See Federal Acquisition Regulation (“FAR”) 33.103(e). Here, it would seem AWS filed its protest with DOD within 10 days from receiving the amended acquisition requirements from the Pentagon, the date on which AWS would have known of its protest grounds.
One benefit of AWS filing this agency-level protest, at this juncture of the dispute, is that the protest itself is kept out of the public eye (and Microsoft’s purview) as it is not considered a public filing. Another benefit is that in accordance with FAR 33.103(g), agencies are required to make their best efforts to resolve agency protests within 35 days after the protest is filed, meaning AWS will likely get a decision from the DoD within the next month or so. If AWS is unhappy with the DOD’s decision, AWS has the right to file its protest with the Government Accountability Office or the COFC. Suffice it to say, the fight over the lucrative JEDI contract is very far from over.
For more information on the JEDI protest and its implications, please contact Lauren Brier, the author of this blog, or a member of PilieroMazza’s Government Contracts and Claims and Appeals practice groups. Please also visit this link for additional coverage on this topic.