Amazon: DOD ‘consistently and repeatedly’ erred in JEDI deliberations under Trump’s influence

Overt political pressure from the top of the Trump administration led to “egregious errors” in the Pentagon’s evaluation of bids for the $10 billion Joint Enterprise Defense Infrastructure (JEDI) cloud contract and award to Microsoft, according to the Amazon Web Services’ lawsuit in the case.

The Court of Federal Claims published a heavily redacted version of AWS’s bid protest complaint Monday alleging the Department of Defense repeatedly made “prejudicial errors” that were rooted in influence from President Donald Trump. Any one of these errors alone, AWS says, is enough to taint the entirety of DOD’s award to Microsoft.

“What is most remarkable here is that consistent with the expressed desires of its Commander in Chief — DOD consistently and repeatedly made prejudicial errors, at every step along the way, that systematically favored Microsoft and harmed AWS — errors that grew in magnitude at each stage, and that mirrored the increasing tactics from President Trump to thwart the award of the contract to AWS,” reads the complaint, which was initially filed under seal. “The most plausible inference from these facts is simply this: under escalating and overt pressure from President Trump, DOD departed from the rules of procurement and complied — consciously or subconsciously — with its Commander in Chief’s expressed desire to reject AWS’s superior bid.”

AWS lawyers in the complaint point to specific examples in “nearly every evaluation factor” where the company believes the DOD acted improperly or erroneously.

“In granting that award, DOD committed numerous and compounding prejudicial errors, glossing over wide gaps between AWS’s market-segment-leading cloud solution and Microsoft’s offering, completely ignoring critical aspects of AWS’s technical proposal, and overlooking key failures by Microsoft to comply with the RFP’s stated requirements,” the complaint says.

In one case, AWS says DOD evaluated part of its bid based on an outdated version of its proposal from an earlier phase of the procurement. In another, the company says evaluators omitted from the final decisionmaking process technical aspects that the department had previously expressed in earlier evaluations as “strengths.” This change came without any explanation, AWS says.

Separately, Amazon also alleges that DOD flip-flopped on pricing and requirements late into the bid process. After receiving initial bids and narrowing the pool to just AWS and Microsoft based on gate criteria, DOD suddenly changed its interpretation of classified infrastructure requirements in the JEDI solicitation, a decision that would, in turn, require AWS to build a brand new, dedicated classified infrastructure solely for the DOD. Meanwhile, Amazon already has existing accredited infrastructure that military and intelligence agencies already use for their classified needs, the company says.

Lawyers call that decision and others “targeted efforts to drive up AWS’s price.”

On top of this, AWS argues in the complaint that its offerings are far superior to Microsoft’s, highlighting that it has the authorizations to work immediately with DOD’s classified data, whereas Microsoft doesn’t. It also has proven experience working at the tactical edge with military customers, it says in the complaint. But DOD didn’t take past work into consideration for the evaluation, which AWS knew was the case but says nevertheless contributed to “a false sense of parity” between the two companies.

Any of these errors in isolation — and whether some sort of passive or direct bias was involved or not — should be grounds for a re-evaluation of bids for JEDI, AWS lawyers write in the complaint.

The case for political interference

AWS also tries to connect the president’s publicly expressed contempt for Amazon founder Jeff Bezos and the company as the reason why these alleged errors occurred.

“This intervention destroyed the requisite impartial discharge of the government procurement process, making it impossible for DoD to meet its minimum obligation to apply the RFP’s stated evaluation criteria reasonably, consistently, and in a fair and equal manner among all offerors,” the complaint says. “President Trump’s intervention casts the errors discussed above in an even harsher light and puts the very integrity of the government procurement process in question.”

The public already knows most about AWS’s claims: Trump’s tweets bashing Amazon and Bezos, the press conference during which he said he was going to “look into” the JEDI acquisition because of complaints from Amazon’s competitors, including Microsoft; and the time when he allegedly told former DOD Secretary Jim Mattis to “screw Amazon” out of the contract, as his chief speechwriter Guy Snodgrass recounts in new book.

“DOD’s substantial and pervasive errors are hard to understand and impossible to assess separate and apart from the President’s repeatedly expressed determination to, in the words of the President himself, ‘screw Amazon,'” the complaint says.

However, the complaint introduces one new detail that casts a precarious light on the department’s handling of the acquisition, particularly after Mark Esper was confirmed as secretary. As previously reported, Esper conducted a review of JEDI before eventually recusing himself Oct. 22 from involvement in any decisionmaking on an award because his son works for IBM, an initial competitor for the contract.

But according to AWS’s complaint, DOD had already on Oct. 17 awarded JEDI to Microsoft, unbeknownst to the public or AWS. DOD publicly announced the award Oct. 25.

This “highly unusual” behavior, AWS alleges, was a symptom of Trump’s political influence on the acquisition.

“Rarely, if ever, has a President engaged in such a blatant and sustained effort to direct the outcome of a government procurement-let alone because of personal animus and political objectives,” the complaint says. “Our laws reject this unfair influence and bias into the government procurement process, and this Court should not sanction such behavior or its intended result in this case.”

It continues, “Basic justice requires reevaluation of proposals and a new award decision. The stakes are high. The question is whether the President of the United States should be allowed to use the budget of DoD to pursue his own personal and political ends.”

A Pentagon spokeswoman denied that there was any political influence on the acquisition. “This source selection decision was made by an expert team of career public servants and military officers from across the Department of Defense and in accordance with DOD’s normal source-selection process,” said Elissa Smith. “There were no external influences on the source selection decision. The department is confident in the JEDI award and remains focused on getting this critical capability into the hands of our warfighters as quickly and efficiently as possible.”