DoD, Microsoft ask court to dismiss Amazon’s political bias claims in JEDI case

AWS needed to make allegations of improper influence in JEDI contract long ago, attorneys argue

Lawyers for Microsoft and the government are asking a federal court to dismiss key portions of Amazon’s lawsuit over the Defense Department’s JEDI Cloud contract, in a nutshell, because the claims in question were raised too late to be legally viable.

In court filings unsealed late last week, attorneys asked the Court of Federal Claims to dismiss the portions of Amazon Web Services’ bid protest that allege DoD awarded the contract to Microsoft because of political bias, bad faith or conflicts of interest.

They argue those claims, even if accurate, are almost entirely based on information Amazon knew or should have known before Microsoft was chosen as the surprise winner of the JEDI contract in Oct. 2019. And if Amazon had evidence of bias, it needed to raise those issues in a pre-award protest, they contend.

“If AWS had raised its bias allegations in a timely pre-award protest, this court could have adjudicated those claims before DoD spent many months evaluating — and then reevaluating — the proposals. If AWS had persuasively shown bias, this court could have directed DoD to replace its allegedly-biased source selection team, before DoD and the offerors expended the months of time and effort associated with the corrective action, which involved numerous proposal submissions and amendments to the solicitation,” Microsoft attorneys wrote. “The court also would have resolved AWS’s objections before DoD twice disclosed Microsoft’s price to AWS in post-award debriefings. AWS’ serial ‘wait and see’ approach to litigating its bias claim is directly at odds with Blue & Gold’s policy of discouraging strategic, untimely protests.”

“Blue & Gold” is a Court of Federal Claims precedent which holds, generally, that if protestors see problems with a procurement, they need to challenge them before an award is made, not after they’ve lost.

Amazon, unsurprisingly, has a different view of the matter. AWS contends it was operating on a presumption that DoD source selection officials would operate in good faith, and that it only became aware of many of the issues the company is raising now during the post-award debriefing process.

“The debriefing materials and the administrative record underlying DoD’s corrective action revealed that DoD’s re-evaluations were designed to reach a pre-determined, politically expedient re-award to Microsoft,” AWS attorneys wrote. “The record demonstrated that, following AWS’s emergence as the lowest priced offeror, DoD purported to find ‘new’ strengths for Microsoft and ‘new’ weaknesses for AWS. These ‘new’ evaluations, manufactured to justify a re-award to Microsoft despite its substantial price premium, are demonstrably pretextual.”

Even if the court sides with Microsoft and DoD in their motions to partially dismiss the lawsuit, the key word is “partial.” Amazon’s allegations of improper political influence by President Trump and others make up only one of the four counts of the latest complaint it filed after DoD took corrective action and re-issued the contract to Microsoft. The other three counts allege DoD failed to follow its own solicitation when it evaluated bids, treated the two companies differently in the source selection process, and made an “irrational” best value decision.

None of those claims would be barred by Blue & Gold, and in the one instance the court has made a ruling in the JEDI case so far, it was on one of those more run-of-the-mill bid protest issues, not Amazon’s claims of political bias.

In February, judge Patricia E. Campbell-Smith issued a preliminary injunction stopping work on JEDI, finding Amazon was likely to win the lawsuit because of a defect in DoD’s award process dealing with cloud storage.

That ruling prompted DoD to take the contract back for corrective action, but it’s still unclear if the court will be convinced the department has actually done so, or that Amazon’s other claims about technical defects in the source selection process don’t have merit. Indeed, Campbell-Smith made clear at the time of the injunction that she was not examining Amazon’s other allegations just yet, because the cloud storage issue was serious enough on its own to merit a JEDI work stoppage.

Microsoft and DoD filed a similar motion to dismiss the case earlier this year, but the court never ruled on that petition because DoD’s decision to take corrective action made the issue moot for the time being. The defendants in Amazon’s lawsuit contend that since there have now been two awards in the procurement, AWS has had two chances to file pre-award protests that would have been in line with Blue & Gold, and has now forfeited its right to raise the bias issues twice. —JS

Army outlines ambitious plan for installations

The Army is preparing its installations for 2035 and beyond. To do that it is implementing a strategy that takes into account new security assumptions that involve higher levels of leadership than plans of the past.

The installations strategy, which was released last week, is a comprehensive outlook of what the Army needs to do for its people, readiness, security, modernization and sustainment of bases and the assets on them.

“It’s the first Army enterprise-wide strategy that identified the need for modern, resilient and sustainable installations,” Alex Beehler, Army assistant secretary for installations, energy and environment, told Federal News Network. “It outlines how best to move forward to support what we call the multidomain force for the next 15 years. It also puts an emphasis on how Army installations, services and systems can best be protected from attacks, climate change and environmental degradation.”

Beehler said the plan not only has the approval of Army leaders, but also all of the generals from Army commands. The Army received comments from more than 150 different service leaders in an attempt to intertwine the installations strategy with other recent plans set out by the military branch — such as the Army’s People Strategy and modernization effort. The installations strategy is also entrenched in the National Defense Strategy, which puts an emphasis on near-peer competition and moving military operations and business management into the 21^st century.

In following the National Defense Strategy, the Army had to throw out a key assumption: That the bases in the homeland were safe from attack. With the cyber and space domains becoming more important domains, attacks on installations can happen anywhere.

“We are more exposed to a whole host of threats,” Beehler said. “You could put them in two broad categories: Near peer power threats — that would include things like cyber security — and then climate change, which is specifically mentioned in the strategy, that’s a very important component of what we want the installations to be focused on.”

To deal with those issues the Army has short-, mid- and long-term goals. Those include determining capability gaps and integrating security sensors. In the long-term, they encompass environmental remediation and enhancing protection of bases.

“Army installations must possess both active and passive protection measures that preserve critical capabilities, assets, and activities essential to meeting National Defense Strategy requirements,” the authors of the strategy state. “To achieve this, the Army will develop comprehensive risk-based assessments for installations and reflect these risks in a common operating picture at echelon. These assessments should inform a prioritized list of protection capabilities required to anticipate, prevent, or mitigate adversary actions.”

The strategy looks at installations in terms of retention and readiness. The military is competing with the private sector, which can offer certain perks that the Army is hoping to rival. At the same time, after seeing failures in the public-private housing partnership, the service is trying to clean up the issues of mold, pests and lead paint in privatized Army housing.

“The installation strategy will provide a holistic approach on investment and use of all of the facilities on any given base with the idea that the number one focus of investment, and of management, should be and starts with the people on the base,” Beehler said. “I think that is a sea change, a cultural change that will then permeate through in the areas such as housing.”

The Army is investing billions in remediating and building new houses and the private companies are also investing funds. However, there are still issues, and some soldiers and their families continue to report problems with privatized military housing.

“If a soldier is worried about the housing or some aspect of the family or childcare, that is a distraction,” Beehler said. “That is really unnecessary and that should be corrected so that the soldier can focus as much as possible on the mission facing that soldier.”

At the same time, the strategy pushes base modernization for security and mission but also for building a better life for soldiers.

The Army is working on experimental autonomous shuttle programs to take soldiers to work or easier ways to access bases.

“Future soldiers will expect installations to modernize at pace with civilian sector smart cities initiatives,” the authors of the strategy state. “Opportunities that leverage technology through creation of data-informed, smart installations will allow the Army to pivot from an industrial-age paradigm, characterized by rigidity and purpose built specialization, to a data-rich, reconfigurable, and technology-enhanced information-age construct. The Army must take advantage of American ingenuity, innovation, and culture of performance to learn and adapt in real time to rapidly evolving conditions enabling commanders to make better decisions about installation operations and quality of life for our people.”

All this is happening with a budget that is notoriously underfunded. Installations are usually one of the first things on the chopping block when budgets get tight.

“We estimate that we have an overarching sustainment maintenance backlog of some $40 billion,” Beehler said. “In order to address all of that, plus, be able to get the installations transition into 21^st century, we’re going to have to basically get more out of fewer dollars.”

Beehler said he believes the installations strategy is the first step in doing that because it is a generalized agreement that commanders need to use data to drive decisions, which the Army hopes will save money. — SM

New survey hopes to address race in military communities

One of the most prominent organizations representing military families and their communities is conducting a survey to look at race and diversity within the military environment.

The survey, conducted by the Association of Defense Communities (ADC), encompasses service members from all areas of the military, family members, veterans, civilians and even people who live near installations.

ADC is conducting the survey as part of its One Military, One Community initiative, which was created in response to the national conversation on racial justice that sparked up further this year.

“While today our country’s military is more diverse than ever, some of our defense communities are the least diverse places in the country,” Tim Ford, ADC CEO, told Federal News Network. “This means the military may be asking service members to live in communities where they may not feel completely welcomed. ADC’s initiative One Military, One Community seeks to provide support, information and resources for those interested in exploring these issues of diversity, inclusion and equity in defense communities.”

Ford said that it expects thousands of responses, based on the strong response ADC has received in just the first few days. The report on the survey will be available in early 2021.

“Multiple events of racial injustice in the past year have highlighted the issue of racial inequality in America and shaped an ongoing national discussion,” Ford said. “This conversation has been embraced by our military leadership – both uniform and civilian – who have made it clear that the military needs to do more.  We also know equity issues will be a priority for the Biden administration and their nominee for secretary of defense, retired Army Gen. Lloyd Austin.  As defense communities, we work to reflect the values of the military and support their mission – and that mission now includes strong efforts to address racial inequalities.”

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