DOD signals it could move on from JEDI if court battles drag out

The Defense Department is signaling that it does not have infinite patience with the lengthy court battles holding up its $10 billion JEDI cloud program.

DOD's Office of the Chief Information Officer told Congress in an "information paper" sent Jan. 28 that the agency is expecting a "significant ruling" in the coming weeks about whether claims by Amazon Web Services that political influence from the Trump administration tainted the outcome of the Joint Enterprise Defense Infrastructure bid process will be litigated in the ongoing case.

Microsoft won the JEDI contract in October 2019. Amazon Web Services challenged the award, and DOD has been operating under a stop work order until the protest is decided.

The DOD CIO information paper stresses that the department's need for enterprise cloud is urgent. "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."

If AWS is allowed to litigate political influence claims, the DOD cautioned, that means deposing former DOD and White House senior officials – possibly including, though this is not mentioned in the document, former President Donald J. Trump.

The government's current position, according to court filings from December 2020, is that AWS waived its allegations of bias when it agreed to participate in a corrective action that allowed AWS and Microsoft to revise aspects of their bids. Microsoft was re-awarded the contract after that review, and AWS resumed its lawsuit.

If the bias allegations are allowed to stand, President Joe Biden's Justice Department would have to defend the Trump administration's conduct in the procurement in order to continue with the case.

Russell Goemaere, a Pentagon spokesperson, said in a statement that DOD, "has consistently stated in all court filings, and public discussions, that the allegation of improper influence is not supported. The DoD IG considered these allegations and found no evidence that improper influence occurred or affected the procurement process or award decision."

The Justice Department declined to comment about whether it would continue to defend the Trump administration's conduct in the JEDI procurement.

Alex Sarria, a government contract attorney with Miller & Chevalier, told FCW that if the court denies DOD’s motion to dismiss the political interference allegations, the case could drag out.

"That result would require more factual development to substantiate the allegations of bad faith," Sarria said, and could raise highly-sensitive questions about the public statements and conduct of senior White House and DOD officials. "That process would take time and could be extremely burdensome on the government."

The information paper states that if the court dismisses the bias allegations, DOD expects the remainder of the litigation to be settled in a few months. If DOD wins the lawsuit under these terms, they're prepared to move forward with JEDI cloud.

However, if the bias allegations are allowed to stand, the "prospect of such a lengthy litigation process might bring the future of the JEDI Cloud procurement into question," the unsigned DOD paper states. "Under this scenario, the DoD CIO would reassess the strategy going forward."

Acting DOD CIO John Sherman said, in language echoing the information paper, that the DOD needs the capabilities it bought with the JEDI contract.

"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," Sherman said in an emailed statement.