As key JEDI court decision looms, Pentagon warns of national security concerns

As a federal judge prepares to make a vital ruling on the near-term future of the Defense Department’s JEDI Cloud contract on Thursday, the Pentagon is arguing that the U.S. will suffer serious national security consequences if its enterprise cloud rollout is delayed any further.

As part of its lawsuit challenging the JEDI award to Microsoft, Amazon Web Services has asked the Court of Federal Claims for an injunction that would stop DoD and Microsoft from building the cloud environment while the bid protest moves forward. The department intends to issue the first substantive task order to start constructing the unclassified portions of the JEDI cloud on Friday unless Judge Patricia E. Campbell-Smith blocks it.

And in redacted court filings unsealed Wednesday evening, the government argued not only that Amazon lacks the necessarily legal basis to get the temporary stop-work order, issuing one would cause concrete harm to national security.

“The continued absence of DoD-wide, enterprise cloud computing capability seriously impedes the military’s ability to collaborate and share information with our military services, partner nations, and the intelligence community,” Lt. Gen. Brad Schwedo, the Joint Staff’s chief information officer wrote in a declaration to the court. “The United States cannot expect military success fighting tomorrow’s conflicts with yesterday’s technology. Providing DoD with rapid access to an enterprise cloud, one which provides elastic computing power and storage, is vital to U.S. national security.”

To win the injunction, among other factors, Amazon needs to show that it’s likely to win the underlying lawsuit and that it its interests would suffer more without a work stoppage than the government’s would if the JEDI buildout was paused.

And the arguments DoD and the Justice Department are presenting to the court appeared to be meant to show the government would be harmed in multiple ways.

Besides hindering military capability, they pointed to cost issues. In another declaration, a DoD contracting official, whose identity is redacted, appeared to acknowledge one of the arguments that opponents of JEDI’s single-award approach have made all along: that the department already has many ways to buy the services it wants via existing multiple-award contracts.

But the official estimated that buying cloud capabilities that way would “nearly double” the cost of the cloud services in question, since DoD was able to use its scale to negotiate favorable pricing terms as part of the JEDI competition.

“Over 20 different contracts for cloud services are available to the DoD that vary significantly in size, scope, CSP, and accessibility,” the official wrote in the heavily-redacted filing. “While still lacking several key features of the JEDI Cloud … [DoD] anticipates a  financial  harm of between $5 and $7 million dollars every month that performance of the JEDI contract is delayed.”

The same declaration also discloses that DoD plans to spend $45 million under the JEDI contract this year and $165 million in fiscal 2021, figures that have not previously been publicly reported.

The department also argued that buying cloud services via other contracts in a more ad-hoc fashion would undermine one of the fundamental goals of JEDI: To build a unified cloud environment with “cross-domain” features that can house both classified and unclassified data.

“JEDI’s (cross-domain solutions) solve the modern software development conundrum – non-traditional contractors will develop software at the unclassified level, and DoD can then move that software up to Secret (and/or Top Secret),” Sharon Woods, the director of the department’s Cloud Computing Program Office wrote in another declaration. “Early adopters will need the interim period to produce software that is ready to use CDS when the Secret level is launched. Delaying development of JEDI’s unclassified services will delay software development work that must first occur in the unclassified JEDI environment.”

In another filing unsealed on Wednesday, government attorneys objected to another request Amazon has made of the court as part of its lawsuit: To authorize sworn depositions of President Donald Trump and several other officials, including Defense Secretary Mark Esper and former secretary James Mattis.

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AWS asserts that testimony would shed further light on one of the central arguments of its protest: The company’s allegation that DoD’s decision to award the contract to Microsoft can only be explained by alleged political interference by the president. So far, the allegations are based mainly on public statements Trump has made that are critical of Amazon founder Jeff Bezos, but also on an account in a recent book in which the president was reported to say he wanted to “screw Amazon” out of the contract.

In its response, DoD and DOJ called the discovery requests an “extraordinary step” that has no bearing on the questions at issue in the case.

“AWS spends pages and pages detailing the president’s alleged bias exhibited against Amazon.  Yet the relevant question in this protest is not whether the president dislikes Amazon, but rather whether the source selection officials — the government personnel who actually evaluated AWS’s and Microsoft’s proposals and decided which offeror would receive the JEDI contract — exhibited bias against AWS in this procurement,” attorneys wrote. “Paradoxically, program officials were falsely accused of harboring a pro-Amazon bias in the Oracle litigation, which is currently pending appeal.  AWS omits almost all mention of this litigation from its account of alleged bias, perhaps in part because AWS’s position with respect to supplementation of the record in that protest is inconsistent with the arguments it presents here.”