DOD: Latest AWS Challenge In JEDI Cloud Contract Is ‘Prohibited’ By Law

The U.S. government is seeking the dismissal of Amazon Web Services’ latest allegations against President Trump in the $10 billion cloud computing contract award to Microsoft.

The U.S. government on Wednesday urged the dismissal of Amazon Web Services’ amended complaint over the JEDI cloud contract, saying that what AWS is attempting to do is not permitted under legal precedent.

“AWS was aware of all the facts on which it bases these allegations well prior to both the original award and prior to DoD reaffirming the award on remand,” the U.S. government said in the filing, which was filed by attorneys for the Department of Defense and Department of Justice. “Yet in both circumstances [AWS] declined to raise these allegations until after it learned that its proposal had been rejected.”

[Related: Microsoft Azure Creates Top Secret Government Cloud As JEDI Battle Rages On]

Bringing forward such allegations at this stage is “prohibited” based on legal precedent, the U.S. government said in the filing.

AWS has repeatedly contested the outcome of the $10 billion Joint Enterprise Defense Infrastructure contract award in the courts. The DOD selected AWS’ largest cloud rival, Microsoft, for the cloud computing contract in October of 2019.

The latest challenge from AWS, filed on Tuesday, included accusations that President Donald Trump’s “unapologetic bias” against Amazon and its CEO Jeff Bezos tainted the awarding of the contract.

The Trump administration was operating in an “increasingly corrupt environment” when it awarded the JEDI contract to Microsoft, Amazon said.

However, in a filing with the U.S. Court of Federal Claims on Wednesday, the U.S. government said the latest AWS allegations are null and void, because the allegations were only made after AWS lost out to Microsoft.

A previous case in the Court of Appeals for the Federal Circuit--Blue & Gold Fleet, L.P. v. United States--established a precedent that was intended to head off maneuvers such as these made by AWS, the U.S. government filing says.

When a party waits to see if it is selected for an award before raising objections about the contract procurement terms, that party has effectively waived its right to make the objections, the filing states.

“That is precisely the prohibited strategic gambit that AWS is attempting with regard to its allegations of bias,” the U.S. government says.

Later in the filing, the government reiterated that the law doesn’t permit a party “to ‘roll the dice,’ wait and see whether it would be selected for award, and only if it was not selected argue to this Court that this information shows that DoD was biased against it.”

In a statement provided to CRN on Wednesday, an AWS spokesperson said that “we disagree with the government’s motion for partial dismissal.”

“AWS believes all of its protest grounds are timely and well-founded, and it’s important that the many evaluation errors and the political interference that impacted the JEDI award decision be reviewed,” the AWS spokesperson said.

The Defense Department did not immediately respond to a request for comment.

In a response to CRN, Microsoft pointed to its own new filing in the case on Wednesday. The filing echoed many of the arguments made by the U.S. government about the legal precedent established by Blue & Gold Fleet, L.P. v. United States.

The precedent means that the allegations AWS is making now “had to be raised in a timely pre-award protest,” Microsoft said in its filing. “AWS has no excuse for its delay.”

AWS is the No. 1 public cloud provider by market share, though Microsoft’s Azure cloud platform is the second largest and has been gaining ground against AWS in recent years, according to data from Synergy Research Group.

President Trump has often criticized Amazon and Bezos in attacks partially stemming from Bezos‘ ownership of The Washington Post, a newspaper unaffiliated with Amazon that the president believes is unduly critical of his administration.

Because of these allegations, AWS is asking the court to declare that the re-awarding of the JEDI contract to Microsoft is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

AWS is also asking the judge to prevent further work on the JEDI contract, to re-evaluate proposals from Microsoft and AWS, to direct the DOD to replace the team responsible for re-evaluating revised proposals, and award to AWS its proposal costs.

The JEDI contract is intended to “improve the speed and effectiveness” of the U.S. military using cloud technologies, the DOD has said.