The judge reviewing the protest of the Defense Department’s Joint Enterprise Defense Infrastructure (JEDI) cloud contract is giving the Pentagon just over a week to answer specific questions about one of the three former DoD officials featured prominently in Oracle’s case.
Judge Eric Bruggink of the U.S. Court of Federal Claims asked DoD to provide answers about the role Tony DeMartino, the former deputy chief of staff to the secretary of Defense, played in the development of the JEDI procurement.
On June 3, Bruggink asked the government’s lawyers to provide answers to two questions by June 11:
Does the amended administrative record reflect any participation, substantive or otherwise, in the Joint Enterprise Defense Infrastructure Cloud procurement by Tony DeMartino after March 2018?
Does the amended administrative record reflect whether Mr. DeMartino remains in government employment? If not, provide information regarding his departure from the Defense Department.
The judge’s questions come at a critical time for the protest as Oracle filed a motion to complete the administrative record on May 31 and a new request for a summary judgement on June 3. The judge is scheduled to hear oral arguments about the protest on July 10.
Industry sources say Bruggink is expected to rule on the case soon after the oral arguments, possibly signaling his decision that day. The judge held a conference call with the government and Oracle’s lawyers on May 20 to keep the case moving.
The filings, for the first time, provide specific yet redacted details about the job offers to Deap Ubhi, the former Defense Digital Service employee who Oracle claims worked as the JEDI lead product manager, and Victor Gavin, the former deputy assistant secretary of the Navy for command, control, communications, computer systems and intelligence. The filings continue to redact Gavin’s name, but multiple sources confirm the filings refer to Gavin, who is currently head of federal technology vision and business development for Amazon Web Services.
Oracle claims Amazon Web Services offered Ubhi an immediate signing bonus, a second signing bonus after a year, shares of Amazon stock and an annual salary. The amounts of each are redacted.
Oracle also alleges in its complaint that it now has evidence that “Ubhi spent weeks as a DoD official (after verbally committing to rejoin AWS) downloading the JEDI Google drive to his laptop, meeting with AWS competitors as a DoD official, requesting and participating in highly-technical DoD cloud meetings, obtaining proprietary submissions from JEDI competitors, zealously advocating for a single source approach favored only by AWS and shaping the gate criteria.”
Additionally, Oracle’s filing also highlights the interaction of Ubhi and a woman from AWS, who was running the JEDI team. It claims former DDS director Chris Lynch emailed the AWS executive, adding Ubhi to get something scheduled with AWS. Ubhi responded to the AWS official saying the he is “running point on all [JEDI] industry touch points.” A few days later Ubhi met with the AWS team, led by this unnamed female official.
An AWS spokesperson declined to comment due to ongoing litigation.
DoD, JEDI on the run?
Steve Schooner, a Nash and Cibinic Professor of Government Procurement Law at The George Washington University in Washington, D.C., said in an email to Federal News Network that these filings “are well-crafted, compelling, persuasive filings that, if they read them, would give pause to, and, potentially, turn the stomach, of most procurement professionals.”
One procurement attorney, who requested anonymity because they didn’t get permission to talk tot the press, said the filings suggest DoD and its JEDI procurement are on the run.
“The involvement of those individuals provide details about potentially clear conflicts. It may be hard for the agency to run away from that or make it look okay,” the attorney said. “There is a heck of a lot of smoke there.”
AWS has said Oracle continues to try to smear the company by distorting the facts and providing a wildly misleading narrative. AWS said Ubhi continues to work only for its commercial side and not the public sector organization.
At the same time, experts say Oracle’s filings continue to highlight the fact that the JEDI procurement is tainted. Schooner, an outspoken critic of the administration, said if the filings are indeed accurate, they paint a damning picture of DoD’s leadership.
“DoD’s procurement leadership, on an incredibly high-profile, important, long-term, $10 billion procurement, appears to be adopting the posture of the current chief executive, that, government office and public funds are spoils to be exploited by the well-connected and powerful, public service ethics laws and regulations are for chumps, rules are made to be broken,” he said. “‘Doing the right thing’ is for losers, and there aren’t enough oversight officials — and they don’t have enough power — to stop us from doing whatever we want to do. Well, compliance officials like to say that, within institutions, personnel ‘look up and around’ for cues on ethical behavior, and this seems to be a casebook example.”
Court orders resumption of JEDI lawsuit, decision expected by mid-July
The attorney added his read of Oracle’s filings is that the company received new information and used it to strengthen its motion for judgement. He said it’s unusual in the Court of Federal Claims for a plaintiff to file a supplemental motion.
Prime advocate for single award approach
The reason Oracle filed the motions is they obtained messages from the internal DDS Slack account and other information. In those messages, Oracle’s lawyers claim Ubhi’s hand in developing the gate requirements is strong and clear.
“So, we need to come up with 5-8 ‘differentiators’ that help us meet mission better right [sic]…i.e. high availability, build-in redundancy, fail over, true elasticity. AI/ML available ‘out of the box,’” Oracle says Ubhi wrote in a Slack message.
DoD disqualified Oracle after the first gate criteria. The company said the Pentagon didn’t read past the first 10 pages of its 1,000-page proposal.
Oracle also claims Ubhi was the “prime advocate” for the single award approach, which has been criticized across the federal community, including most recently by House lawmakers who added new restrictions to JEDI in the 2020 National Defense Authorization Act.
Oracle writes in the May 31 filing that new documents show Ubhi pushing for a single cloud, “build another AWS with only one customer: DoD,” and “you know how fast AWS builds regions?” and “I’m dead serious, why wouldn[‘]t they just build out an entire region footprint [sic] just for us?”
The filings also show Ubhi’s stated reason that he recused himself from all JEDI matters on Oct. 31, 2017, was not true, Oracle claims. He told DoD and the contracting officer that AWS had indicated an interest in buying Tablehero, a startup company he had founded.
But Oracle’s May 31 filing says AWS or Amazon admitted in February that it never offered to purchase Tablehero at any time after 2016. AWS also admitted in February for the first time that it had conversations about hiring Ubhi throughout JEDI.
“Ubhi’s Oct. 31, 2017 Tablehero recusal excuse was pretext to mask the fact that Ubhi and AWS has been negotiating employment since late August 2017,” Oracle states.
Oracle says documents show Ubhi received his offer letter confirming his salary and bonuses on Oct. 25, 2017, and signed the offer two days later.
“There is now blood in water and Oracle knows it,” the attorney said. “The government is given a lot of discretion when procuring goods and services, but not the discretion to run roughshod over rules and regulations. The government didn’t turn square corners and the only question in my mind from reading these briefs is if this is enough for [a] judge to say DoD’s actions were harmful and impactful, or would the decision have been the same anyway? I’m not sure how you fix this, because DoD is so far down the road that their only option may be to start over again from the beginning.”
JEDI role overstated?
The industry source said Oracle is gaining confidence that it will win the case with each filing. The source said some believe the Justice Department is losing enthusiasm for the case based on conversations the lawyers are having and the new things the government’s lawyers continue to learn based on the documents that DoD and AWS release as part of the case file.
The procurement attorney said the best thing the government’s lawyers could do is to paint Ubhi as a bragger who was making his role bigger than it actually was, and down play his influence on JEDI.
In previous filings, DoD and AWS did just that, saying in January that “Ubhi’s involvement was early in the procurement process, before the agency had received any responses to its request for information (RFI), had issued warfighting requirements through the Joint Requirements Oversight Council, had drafted the bulk of its acquisition strategy documents, had drafted and issued two draft solicitations, and had made its final decisions with regard to the solicitation terms challenged by Oracle.”