Despite having signaled that it may have to reconsider its plans for the multibillion dollar JEDI Cloud contract, the Defense Department has decided it’s not ready to give up — at least not yet.
In court documents filed late Friday afternoon, the department indicated it’s girding for at least several more months of litigation in a bid protest lawsuit filed by losing bidder Amazon Web Services.
The decision was somewhat unexpected, because in earlier filings and public statements, the department said it would have to reconsider whether to proceed with the JEDI project at all if the Court of Federal Claims did not dismiss portions of the lawsuit that alleged improper political influence on the part of former President Donald Trump and other government officials.
In an April 28 ruling, Judge Patricia E. Campbell-Smith left Amazon’s lawsuit fully intact, and told the parties to confer and report back by May 28 about whether the lawsuit would need to continue under the circumstances.
By the time of Friday’s deadline, both sides indicated it would, but they had very different ideas for how the case should proceed.
The government and Microsoft, JEDI’s winning bidder, want the court to deny Amazon’s request to gather additional evidence, including by taking court-ordered depositions from the former president and other officials.
But even under the assumption the judge denies those discovery requests and moves ahead with a more streamlined approach to an eventual decision, their proposed schedule for deciding the case would drag things out until late October at the very earliest.
Amazon, meanwhile, wants to start litigating next month over what additional evidence it should be allowed to incorporate into the “administrative record” the judge will eventually use to decide the case. Beyond those initial arguments, which would end in July, the rest of the timeline for the lawsuit would remain “to be determined,” based on the company’s proposed schedule.
Beyond scheduling issues, DoD and Amazon are also at odds over the specific types of evidence that belongs in the court’s record. AWS has accused the government of withholding evidence that may be important to its case.
For example, the government so far has declined to turn over Slack messages and emails involving DoD employees that Amazon believes could show evidence of anti-AWS bias during the procurement process.
The department withheld those records in what Amazon sees as a defiance of Judge Campbell-Smith’s earlier orders. In the early stages of the case, she said DoD “should” fill out the administrative record with those sorts of “informal” documents – but did not explicitly say that it must.
“Further factual developments have transpired, including the Trump White House’s stonewalling of a DoD Inspector General investigation into the very issues that AWS raised in its amended complaint,” AWS attorneys wrote. “The court can, and should, set an efficient briefing schedule that still gives ‘due regard to the interests of defense and national security’ by accepting AWS’s proposed schedule.”
DoD argues Judge Campbell-Smith has enough information to make her decision in the thousands of pages that already make up the JEDI administrative record, and that most of the relevant issues were before the court a year and a half ago, when the judge first made her decision to order a halt to work under the JEDI contract.
“Any benefit gained by taking additional time to rehash in detail issues that the parties have already explored in depth is greatly outweighed by the ongoing harm to national security or continued delay in fielding these critical capabilities,” government attorneys wrote.
The Defense Department did not immediately answer questions from Federal News Network on Friday about whether its court filings reflected a decision on whether it intends to continue litigating the JEDI matter, or whether its review process is still underway.
That’s not unusual: the department, since JEDI’s conception in 2018, has been extraordinarily cautious about discussing the procurement in any public fora , and even more so after it became a subject of litigation.
Oracle filed the first legal challenge in 2018, alleging it was improperly excluded from the procurement. The firm took its pre-award protest all the way to a federal appeals court, which eventually decided in DoD’s favor late last year.
Also unclear, in the absence of DoD’s public communication about JEDI, is what purpose the contract is meant to serve as of 2021 and why it remains a subject of litigation.
The department’s 2022 budget, also released on Friday, does not mention the JEDI contract at all, but does advertise numerous other ways in which the Pentagon aims to leverage cloud computing.
Each of the military departments have already moved on to their own cloud adoption projects, all of which acknowledge the reality that the infrastructure and platform services JEDI was first envisioned to provide are now available from multiple vendors, and cloud is much more of a commodity than it was in 2018.
The Air Force’s Cloud One project, for example, hosted 60 separate systems in commercial clouds as of last December: 32 in AWS, and 24 in Microsoft’s Azure. Together, they hosted nearly 4,000 terabytes of data.
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