The White House‘s stonewalling of an investigation into the Pentagon’s JEDI cloud contract has prompted renewed allegations of bias from Amazon as it protests the deal, but experts say the company faces a steep climb to show the deal was unfair.
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Showing bad faith effectively requires “very hard, clear facts” laid out in evidence such as internal communications, according to Lauren Brier, a PilieroMazza PLLC attorney who has written frequently about the JEDI procurement. Allegations that could be drawn from inferences about the White House blocking responses to the OIG’s probe wouldn’t cut it, she said.
“You kind of have to have that smoking gun to hit that standard of bad faith,” she said.
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For the OIG’s report to hold any sway in Amazon’s protest, the claims court judge must also agree to take notice of it, according to Brier.
The parties could try to make the report part of the administrative record to point to aspects that they think may help their case — for Amazon, for example, to help argue that the White House’s stonewalling showed it misused executive privilege. But even though the report may have some persuasive effect, it was neither an initial part of the facts of the case nor case law and the judge is under no obligation to consider it, she said.
“It will be interesting to see if the judge actually agrees to that, because she’s not beholden to the executive branch,” Brier said.
Excerpt taken from the article “White House Stonewall Claims Won’t Aid Amazon JEDI Protest” by Daniel Wilson for Law360. To view the full article, please visit this link (subscription required).