Amazon’s JEDI lawsuit will use video submissions to claim political bias

Amazon Web Services followed through on its promise to sue the Pentagon over the JEDI Cloud contract on Friday, formally launching the latest in a series of legal challenges to the controversial multi-billion dollar procurement.

AWS is challenging the Defense Department’s Oct. 25 decision to award the JEDI contract to Microsoft, a surprise turn of events to most observers who expected Amazon to prevail in the controversial single-award contract.

The company’s exact legal claims have not yet been made public. Friday’s filing was made under seal — a typical measure in bid protest cases, which usually contain sensitive source selection information.

But the limited information that’s already available in records at the Court of Federal Claims indicates Amazon intends to make allegations of political interference at least a part of its ligation strategy. The company had already hinted that it believes the final award decision was biased by President Donald Trump’s public antipathy for Amazon founder Jeff Bezos.

In its filing, AWS told the court it was supplementing its complaint with several video exhibits:

  1. Two of Trump commenting on the JEDI contract during a campaign rally and in a press appearance,
  2. One of DoD Chief Information Officer Dana Deasy discussing the procurement during Senate testimony, and
  3. A Fox News segment in which a host derided the contract as the “Bezos bailout” and appealed to the president to intervene.

In a statement earlier this month, Amazon said it had decided to challenge the award to Microsoft because “numerous aspects” of the procurement process were tainted by “clear deficiencies, errors and unmistakable bias.”

Also on Friday, Microsoft asked the court for permission to participate in the lawsuit as an intervenor, a step winning bidders often take when they feel they have legal interests that the government itself isn’t postured to make.

“The disposition of this matter will directly affect Microsoft’s interests in the awarded contract, which carries the potential for significant economic and other harms to Microsoft,” the company’s attorneys wrote.

One of the video exhibits Amazon submitted to the court came from a February 2016 rally in which the president alleged that Bezos bought the Washington Post newspaper only as a means to generate political influence that would benefit Amazon.

“That’s not right,” he told the crowd in Fort Worth, Texas. “And believe me, if I become president, oh do they have problems. They’re going to have such a problem.”

In the other video submission of the president’s comments, from a brief Q&A session with reporters in July 2019 — when Amazon was widely seen as the frontrunner in the JEDI competition — he said he was getting “tremendous complaints” from other companies.

“They’re saying it wasn’t competitively bid,” Trump said at the time. “We’re looking at it very seriously. It’s a very big contract, one of the biggest ever given having to do with the cloud and having to do with a lot of other things.”

The Defense Department, for its part, has denied the prospect that politics played a role in the final decision. It’s still unclear what portions of Deasy’s Senate testimony Amazon is presenting to bolster its’ case, but during that October hearing, he said he had set up multiple firewalls throughout the procurement process to shield JEDI from political considerations. In the end, he said, the identities of the final source selection team were kept a closely-guarded secret.

“And in my discussions with the deputy secretary of Defense and the secretary of Defense, at no time throughout this process have I ever shared any proprietary source information with them, nor have I ever divulged — when we got to the conclusion — who the awardee was,” he said Oct. 29.

In its Friday filings, Amazon also asked the Court of Federal Claims to assign its new lawsuit to Judge Erik G. Bruggink, because he is already intimately familiar with the details of the complex JEDI contract, and doing so would “conserve judicial resources and promote the efficient administration of justice.”

Beginning a year ago, Bruggink heard another bid protest, filed by Oracle, that sought to force DoD to make changes to the JEDI contract before it was awarded. In that lawsuit, DoD and Amazon were on the same side — defending the contract against allegations that it had been tainted by conflicts of interest involving DoD employees who worked for Amazon before or after the JEDI planning process.

In July, Bruggink sided with DoD and Amazon. He ruled that although the Pentagon had run afoul of a federal statute that requires large multiple-order contracts like JEDI to go to multiple bidders, Oracle wasn’t prejudiced by that violation, because DoD had already sidelined it from the competition for other legitimate reasons.

Oracle disagrees, and is still fighting the legal battle in an ongoing case before the Court of Appeals for the Federal Circuit.

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