Editor’s Note: This story has been updated with comment from the acting Department of Defense CIO, John Sherman.
The Pentagon is worried that if a federal claims court doesn’t dismiss allegations of Donald Trump’s political influence in the award of the Joint Enterprise Defense Infrastructure (JEDI) cloud contract to Microsoft in 2019, it could “bring the future of the JEDI Cloud procurement into question,” forcing the department to consider a different approach.
The Department of Defense sent an “information paper” to Congress on Thursday evening, explaining the potential impacts of the Court of Federal Claims’ upcoming decision on the department’s motion to dismiss Amazon‘s allegations of “improper influence at the highest levels of Government” in its larger bid protest of the JEDI contract. In the paper, DOD says the court should make “a significant ruling within the coming weeks.”
On the one hand, if the court rules in DOD’s favor to dismiss the single allegation, the department believes it would still likely take four to five months for a ruling on Amazon’s other points in the case, which includes the allegation that DOD made “numerous and compounding prejudicial errors” in its evaluation of proposals. The litigation has been ongoing for more than a year now, and it’s been nearly three years since DOD first solicited proposals for the JEDI contract.
But, if the court finds Amazon’s accusation of political influence to be valid, it will “need to be substantively litigated,” an endeavor that could go on much longer and mean the end of the JEDI contract as we know it.
Any sort of motion for discovery, for example, would likely “include requests for depositions of senior officials at the White House and DoD, including former DoD and White House Senior Officials.”
“These motions will be complex and elongate the timeline significantly,” the paper says. “The prospect of such a lengthy litigation process might bring the future of the JEDI Cloud procurement into question. Under this scenario, the DoD CIO would reassess the strategy going forward.”
Acting DOD CIO John Sherman told FedScoop in a statement: “Regardless of the JEDI Cloud litigation outcome, the Department continues to have an urgent, unmet requirement for enterprise-wide, commercial cloud services for all three classification levels that also works at the tactical edge, on scale. We remain fully committed to meeting this requirement—we hope through JEDI—but this requirement transcends any one procurement, and we will be prepared to ensure it is met one way or another.”
The DOD does have one thing in its favor: Its inspector general already found last year as part of a long and detailed investigation that it does not believe the White House or other top officials influenced the procurement decision.
However, the court has in the past leaned toward siding with Amazon, saying last March that the company was “likely to succeed” in showing that the DOD erred, at least in part, in how it evaluated bids for JEDI. This caused the department to take corrective actions on the contract. But still, even after that, it re-affirmed its original award to Microsoft.