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The Department of Defense said in a court filing today that it wants to “reconsider” its disputed decision to award the $10 billion Joint Enterprise Defense Initiative contract to Microsoft Corp. over onetime front-runner Amazon Web Services Inc.
In the filing with the U.S. Court of Federal Claims, the Pentagon said it was responding to AWS’ preliminary injunction against the award filed Jan. 19 and a subsequent Feb. 13 ruling by Judge Patricia E. Campbell Smith to pause the project.
In that ruling, according to documents opened on March 6, Judge Smith said that Amazon “likely is correct” that the DOD should have assigned a deficiency to Microsoft’s bid based on AWS’ argument that the software giant’s bid called for using a data storage system that didn’t meet bid requirements. She also said Amazon would have had a better chance of getting the deal, which it was heavily favored to win, if the DOD hadn’t erred. “In the context of a procurement for cloud computing services, the court considers it quite likely that this failure is material,” she wrote.
In the filing made with Microsoft today, the Pentagon is asking the court to remand the the case to the DOD for 120 days to “reconsider certain aspects of the challenged agency decision.” In addition, it said that “in the interests of justice, it will provide the agency with an opportunity to reconsider the award decision in light of AWS’ allegations,” an apparent concession that there may have been issues with the award. And it said it will propose that AWS and Microsoft file a “joint status report” on whether the case should proceed.
According to the filing, AWS said it opposes the Pentagon’s motion. The filing doesn’t say why, but it’s likely that AWS will file a response in the next week or two with concerns that the reconsideration may not cover all of what AWS claims are errors, deficiencies and bias in the decision.
However, an AWS spokesperson said in a statement today, “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.”
For Microsoft’s part, spokesman Frank Shaw stood by the DOD’s decision to award it the contract. “However, we support their decision to reconsider a small number of factors as it is likely the fastest way to resolve all issues and quickly provide the needed modern technology to people across our armed forces,” he said in a statement. Microsoft is not opposing the Pentagon’s motion.
Shaw also said that over two years, the DOD reviewed “dozens of factors and sub factors and found Microsoft equal or superior to AWS on every factor.”
AWS said previously that the DOD “should have found [intervenor-defendant’s] technical approach unfeasible, assigned a deficiency, and eliminated Microsoft from the competition.” It also alleged that Microsoft price scenario “fails to comply with the requirement that storage be ‘highly-accessible,’ a term defined as ‘online and replicated storage.’”
The document opened up earlier this month also noted that “rather than dispute the applicable storage requirement,” the DOD made two arguments against AWS’ complaint. “First, defendant contends that plaintiff ‘seeks to elevate superficial labels over technical performance,’ and second, that if correct, plaintiff ‘would have been as technically deficient as [intervenor-defendant], and so would be in no position to complain of prejudice.’”
Though it’s not part of the court’s consideration or this reconsideration, AWS has also charged that political interference from President Donald Trump figured in the award to Microsoft. In its initial suit filed in December, AWS said that the interference took the form of “public and behind-the-scenes attacks” by Trump against Amazon Chief Executive Officer Jeff Bezos.
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