Court orders resumption of JEDI lawsuit, decision expected by mid-July

A federal judge on Tuesday cleared the way for the resumption of a legal challenge to the Defense Department’s multibillion dollar JEDI Cloud contract, while also signaling that the court case is likely to reach its conclusion by mid-July.

Judge Erik Bruggink’s order lifted a stay that the Pentagon requested last month so that it could reopen an investigation into alleged conflicts of interest involving Amazon Web Services. It followed the department’s announcement last week that the latest probe had found no evidence that the Joint Enterprise Defense Infrastructure procurement was tainted by the involvement of Deap Ubhi, a current and former AWS employee.

“On April 9, 2019, DoD also determined that defendant-intervenor, Amazon Web Services, Inc. (AWS), has no organizational conflict of interest that requires its exclusion from the procurement,” government lawyers wrote in documents asking the court to lift the stay.

The Court of Federal Claims also agreed to a new timeline that DoD and the plaintiff in the bid protest lawsuit, Oracle America, jointly proposed on Monday.

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By the end of next week, Oracle will file a new version of its complaint seeking to force revisions in DoD’s acquisition strategy. The following week, the Pentagon is supposed to update the procurement record, presumably to reflect the findings of its latest internal investigation.

After several more court filings, the court will hear final arguments from both sides at a hearing the week of July 8. DoD has agreed not to make an award in the JEDI contract until after July 15, according to the new schedule.

In its Monday filing, DoD also confirmed that it has narrowed the list of qualified bidders to two companies, AWS and Microsoft, and has decided that the other two bidders, Oracle and IBM, are outside of the competitive range the department set.

But the very “gate criteria” DoD used to cull the field of contenders are among the myriad of procurement decisions Oracle is challenging in the ongoing lawsuit.

Indeed, in its original complaint, the company contended that the department had improperly and intentionally crafted the criteria so that only two companies could possibly meet the requirements.

“Three of the RFP’s seven Gate Criteria that each offerer must pass in order to compete for the contract exceed DoD’s needs and violate (the Competition in Contracting Act) to the significant competitive prejudice of Oracle,” attorneys wrote. “DoD’s record shows that the agency crafted several gate criteria to reduce competition and avoid task order protests, rather than develop the requirements to address DoD’s actual minimum needs.”

In the seven-count complaint, Oracle also alleged that the procurement was fatally damaged by the involvement of Ubhi and another former DoD employee, Anthony DeMartino. Both had prior connections to AWS at the time they worked in the Pentagon, and Ubhi later returned to work at AWS.

In a statement last week, the department said its renewed conflict of interest investigation did not find any conflicts that could have tainted the procurement, but it did turn up new evidence of unspecified ethics violations. Those concerns have been referred to the Pentagon’s inspector general, officials said.

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