The US Department of Defense (DoD) has asked a federal court judge for more time to re-evaluate parts of its controversial $10bn cloud contract before the decision to award the contract to Microsoft is subject to a legal challenge by Amazon Web Services (AWS).
The DoD asked the court, in a motion filed on 12 March 2020, to remand the case back to the DoD for 120 days so it can “reconsider certain aspects” of the decision. This course of action is being taken in response to complaints raised in the preliminary injunction AWS filed last month.
As reported by Computer Weekly at the time, this injunction saw AWS request a temporary restraining order banning Microsoft from embarking on any “substantial” work relating to the contract until the legal challenge against the DoD had played out in court.
The preliminary injunction document was unsealed on 6 March 2020, and features an opinion by the judge overseeing the case that AWS is likely to succeed in demonstrating that the DoD “erred in evaluating” a specific part of the contract during the procurement process.
The opinion was shared ahead of the legal challenge that is due to kick off imminently, centring on claims made by AWS that its failure to win the decade-long cloud contract with the DoD was down to “significant political interference” that resulted in the contract being awarded to Microsoft instead.
The 6 March document sets out why the judge presiding over the case complied with Amazon’s request for an injunction, and suggests the outcome of the case may hinge on a difference in the suppliers’ interpretation of what the phrase “highly accessible storage” means.
It is claimed this may have resulted in Microsoft putting forward a more agreeable pricing proposal due to a misinterpretation by the firm about what the DoD meant by its request for highly accessible storage. This, in turn, may have contributed to Microsoft securing the contract over Amazon.
And this is the element of the contract the DoD now wishes to reconsider. The department will – as detailed in the 12 March 2020 motion – be requesting that both Amazon and Microsoft send forth revised submissions.
It is understood that Amazon is expected to file an additional motion, to oppose this request, whereas Microsoft is not expected to do so.
In a statement to Computer Weekly, released in response to the news of the DoD motion, an AWS spokesperson said the company welcomed the development.
“We are pleased that the DoD has acknowledged ‘substantial and legitimate’ issues that affected the JEDI award decision, and that corrective action is necessary. We look forward to complete, fair, and effective corrective action that fully insulates the re-evaluation from political influence and corrects the many issues affecting the initial flawed award,” the spokesperson said.
Unsealed, signed and delivered
The 6 March 2020 document goes into greater detail about the specific part of the contract Amazon is understood to have taken issue with.
As such, it contains allegations raised by Amazon that the DoD “improperly evaluated” responses Microsoft provided regarding a “price scenario” featuring a requirement for “highly accessible” storage, which is taken to mean “online and replicated storage”, the document states.
“Had the DoD properly evaluated [Microsoft’s] proposal of storage in price scenario 6, according to [Amazon] the DoD would have concluded that the proposal was ‘non-compliant’ and ‘should have found [Microsoft’s] technical approach unfeasible, assigned a deficiency and eliminated [Microsoft] from the competition’,” it reads.
In the document, the court offers its opinion on the argument outlined above and states that it “considers it likely” that Amazon’s chances of securing the JEDI contract would have increased had Microsoft’s “evaluation error” not been present.
“Even if what appears to be a deficiency did not result in [Microsoft’s] elimination from the competition, a reduction in the [dollar] price advantage attributed… to [Microsoft’s] use of storage likely would affect the price evaluation, which, in turn, would affect the best value determination,” the court’s opinion reads.
“Accordingly, the court concludes that [Amazon] is likely to succeed on the merits of its argument that the DoD improperly evaluated [Microsoft] price scenario 6.”
In a statement to Computer Weekly, an AWS spokesperson said in light of the “numerous evaluation errors” and “blatant political interference” that blighted the JEDI procurement, it is important that the decision to award the contract to Microsoft is placed under review.
“AWS is absolutely committed to support the DoD’s modernisation efforts and to expeditious legal process that resolves this matter as quickly as possible,” the spokesperson added.
Microsoft, however, has sought to play down the significance of the issue, stating that the “highly accessible storage” quibble is just one of six pricing scenarios put forward as part of its submission to the DoD.
“The decision disagreed with a lone technical finding by the Department of Defense about data storage under the evaluation of one sub-element of one price scenario. While important, there were six pricing scenarios, each with multiple sub-elements, and eight technical factors, each with numerous sub-factors, evaluated during the procurement,” said Frank Shaw, corporate vice-president for Microsoft communications, in a statement.
“And for the scenario at issue, the government makes clear that, in its view, Microsoft’s solution met the technical standards and performed as needed. The decision does not find error in the Department of Defense’s evaluation in any other area of the complex and thorough process that resulted in the award of the contract to Microsoft.”
Shaw also goes on to reiterate that, over the course of the two-year procurement process for the JEDI contract, the products and services it put forward for inclusion were rigorously tested by the DoD and “rated equal or superior to AWS in every evaluation” the department subjected it to.
“Collectively, this caused the Department of Defense to select our bid as ‘significantly superior’ to AWS at a better price,” said Shaw.
“We have confidence in our technology, our bid, and the professional staff at the Department of Defense. We believe that we will ultimately be able to move forward with the work. Time matters because those who serve our country urgently need access to this essential modern technology.”