The contract was awarded to Microsoft in late October after Esper announced he would “reexamine” the Pentagon’s approach to JEDI. Just before Esper’s review, the president said in televised remarks that he had received “tremendous complaints” from Amazon’s competitors, citing Microsoft, Oracle and IBM.
Amazon alleges the surprise award to Microsoft was tainted by “repeated public and behind-the-scenes attacks” from Trump.
“President Trump has repeatedly demonstrated his willingness to use his position as President and Commander in Chief to interfere with government functions — including federal procurements — to advance his personal agenda,” Amazon Web Services spokesman Drew Herdener said in a statement Monday.
“The preservation of public confidence in the nation’s procurement process requires discovery and supplementation of the administrative record, particularly in light of President Trump’s order to ‘screw Amazon.’ The question is whether the President of the United States should be allowed to use the budget of the DoD to pursue his own personal and political ends.”
(Amazon founder and CEO Jeff Bezos owns The Washington Post.)
In its filing, Amazon seeks to question Trump on any communications he’s had with Microsoft, as well as Oracle, another tech giant that sought the JEDI contract and whose chief executive has dined with the president. Amazon also wants to ask Trump about his communications with Jim Mattis, former defense secretary, and learn more about his “termination and/or resignation.”
Amazon is also seeking to ask the president about his communications with Esper over his appointment, and any discussion they had about the JEDI award.
Amazon’s request for depositions came Jan. 17 in a sealed motion to supplement the administrative record in the case and a redacted version was filed publicly Monday. In filings that remain sealed, the Pentagon and Microsoft replied to the request Jan. 31 and Amazon filed a response last week. Federal Claims Court Judge Patricia Campbell-Smith has yet to rule on the issue.
In its filing, Amazon strives to make a case that Esper worked to scuttle Amazon’s JEDI bid at Trump’s express or implicit directive. Shortly after replacing Mattis last summer, Esper said he planned to take a “hard look” at the JEDI award process. Esper and Trump met six times between Aug. 1 and Oct. 8 and Esper met at least five times with procurement personnel evaluating the JEDI proposal in July and September, the filing alleges.
The chair of the Source Selection Evaluation Board that helped evaluate the JEDI bid, whose name is redacted, attended four of Esper’s “information sessions” on the process, Amazon alleges. And it argues that nothing the federal government has provided in the case shows “the procurement officials were not in fact shielded from the President’s influence.”
Amazon argued in its filing that the meetings of that unnamed official with Esper “aligns strikingly” with the timing of the selection process. “The close contact between Secretary Esper and the SSEB Chairperson particularly concerning,” according to Amazon’s filing.
Amazon is also seeking to depose Mattis; Dana Deasy, the Pentagon’s chief information officer; as well as three members of the committee who helped to make the JEDI selection, whose names have been redacted from the public filing.
The company will have a difficult time convincing the Court of Federal Claims, which hears lawsuits involving federal contracts, that it needs to depose Trump and Esper, said Franklin Turner, a government contracts attorney with the law firm McCarter & English.
“This is something that would be fought tooth and nail by the White House and Department of Justice as strongly as is legally possible,” Turner said. “And they have a lot of arrows to fire, because years and years of bid protest law have said ‘you have what you need in the agency’s record.’ ”
He added, however, that the JEDI case could depart from the norm because Trump has been so overt with his criticisms of Amazon and Bezos, including while the Pentagon was evaluating bids.
“This case is obviously a little different because the president himself has put him smack dab in the center of the procurement by making repeated public statements [about Amazon and Bezos] over many months,” Turner said.
Thus far Amazon’s bid protest has relied primarily on the president’s own public statements. The company cited a February 2016 campaign rally in Texas, in which Trump said Amazon would “have problems” if he were elected. The company has pointed to a Fox News segment, which had been retweeted by the president, in which the host urged Trump to prevent the Pentagon from awarding the contract to the retail giant. And it pointed to public statements the president made during the procurement in which he seemed to express bias against Amazon.
The president’s comments are highly unusual in the context of federal procurement. Under bidding rules, companies’ bids are supposed to be evaluated by trained officials who weigh each company’s application on its merits. Top officials usually refrain from speaking publicly about the bidding process for particular contracts — much less specific bidders — for fear of casting doubt on the results.
Judges in several unrelated cases have previously ordered Trump to give depositions or turn over documents.
Last September, a judge in New York City, Doris M. Gonzalez, ordered that Trump sit for videotaped testimony in a lawsuit brought by protesters who say they were assaulted by Trump’s security guards during the 2016 campaign. Gonzalez wrote that Trump’s testimony is “indispensable” to the trial.
A year earlier, Trump agreed to produce portions of his calendar from 2007 and 2008 as part of discovery in a defamation lawsuit brought by former “Apprentice” contestant Summer Zervos. In that case, the Trump Organization agreed to produce calendar and journal entries from November 2007 to February 2008, a period that includes time in which Zervos claims Trump forcibly kissed and groped her, allegations Trump has denied.
Amazon has sought to implicate Trump repeatedly after it lost the JEDI contract to Microsoft. At the time, the online commerce giant, which also pioneered the business of cloud computing, suggested Trump influenced the outcome because “a detailed assessment purely on the comparative offerings clearly led to a different conclusion.” A month later, Amazon cited comments by Trump at a rally and to journalists as it formally challenged the Pentagon’s decision.
Notably, Amazon isn’t citing specific emails or conversations including Trump that it believes might have played a role in the decision. Part of its argument is that its experience, technology and track record in handling government data should have led the Pentagon to select Amazon Web Services over Microsoft’s Azure services.
Amazon dominated the business of providing on-demand infrastructure computing services for rent with a 48 percent market share in 2018, according to market research firm Gartner. Microsoft, which entered the business after Amazon, holds a 15.5 percent share of the market.
A Pentagon spokeswoman said the Defense Department “strongly opposes” Amazon’s motion.
“Amazon Web Services’ request is unnecessary, burdensome and merely seeks to delay getting this important technology into the hands of our warfighters,” said Rachel VanJohnson, a spokeswoman with the Defense Department Cloud Computing Program Office.
Microsoft declined to comment on Amazon’s motion Monday and referred to a previous statement spokeswoman Janelle Poole had issued on the JEDI contract.
“We’re ready to get to work so the men and women in uniform who serve our country can access the critical new technology they urgently require. We have confidence in the qualified staff at the Department of Defense, and we believe the facts will show they ran a detailed, thorough and fair process in determining the needs of the warfighter were best met by Microsoft," Poole’s statement said.
Part of Amazon’s newly unsealed filing includes allegations that the Pentagon has not been responsive to requests for information about its decision to award the contract to Microsoft. Amazon notes there were no substantive responses to any of the 265 questions it raised during the debriefing process after the contract was awarded.
There’s little doubt of Trump’s animus toward Bezos. At a February 2016 campaign rally in Fort Worth, then-presidential candidate Trump lashed out at Bezos’s ownership of The Post.
“I have respect for Jeff Bezos, but he bought The Washington Post to have political influence … he owns Amazon … he wants political influence so that Amazon will benefit from it,” Trump said at the 2016 campaign rally. “That’s not right. And believe me, if I become president, oh do they have problems. They are going to have such problems.”
Trump has also frequently criticized Bezos’s ownership of The Post, pushing, for example, the U.S. Postal Service to increase rates charged to Amazon and other firms to ship packages, The Post reported last year. The Post’s leaders have said that Bezos, who bought The Post in 2013, plays no role in coverage decisions at the newspaper.
Amazon’s bid protest is the third legal challenge the JEDI contract has faced.
Before the contract was awarded to Microsoft, it faced a long-running lobbying campaign by Amazon’s competitors, who sought to force the Defense Department to change course.
The Defense Department kicked off the procurement in March 2018 and originally expected to award a contract in September of that year. It quickly became the subject of protests by Oracle and IBM, which submitted bids of their own but opposed the Pentagon’s decision to award the contract to just one company. Those protests both failed to block the award.
Oracle then filed a separate lawsuit in the U.S. Court of Federal Claims, accusing Amazon of tainting the procurement through a series of revolving-door hires. After a lengthy investigation that delayed the procurement by several months, a federal judge ruled in late July 2019 that Amazon did not have an “organizational conflict of interest” that would disqualify it from the competition. Oracle is still pressing its case, arguing it should not have been excluded from the competition.
In late July, pressure around the procurement seemed to reach a fever pitch when an Oracle lobbying document labeled “A Conspiracy To Create A Ten Year DoD Cloud Monopoly” reached the president’s desk.
The president said in a news conference at the time that he had received complaints from companies that compete with Amazon, specifically naming Microsoft, Oracle and IBM.
“I’m getting tremendous complaints about the contract with the Pentagon and with Amazon. ... They’re saying it wasn’t competitively bid,” Trump said in a July 18 news conference. “Some of the greatest companies in the world are complaining about it, having to do with Amazon and the Department of Defense, and I will be asking them to look at it very closely to see what’s going on."
Soon afterward, the White House directed Esper — then in his first week on the job — to reexamine the Pentagon’s approach to JEDI based on concerns the contract would go to Amazon, people familiar with the matter told The Post at the time. Defense officials have said the White House did not “order” Esper to make any specific determination.
Esper said in an interview at the time that he had heard “a lot from the Hill” about the subject and confirmed that he had heard from administration officials on the issue.
“I’ve heard from folks in the administration, so I owe, as the new guy coming in, a fresh look at it, study it, make sure I understand all the different factors,” Esper said in an interview in late July. “I’m going to take a hard look at it. We’re not going to be making any decisions soon until I’m comfortable with where it is and ... then we’ll look at what adjustments we need to make, if any.”
On October 22 — several months into his “review” of the JEDI contract — Esper recused himself from the procurement because his adult son was employed with one of the initial bidders. Three days later the Defense Department announced it would award the contract to Microsoft.
Amazon’s filing alleges Esper’s recusal was “unusual and suspect.” It notes the recusal came months after Esper began investigating the procurement process at Trump’s request and several days after the DOD advisory committee issued its recommendation to award the contract to Microsoft.
“Notably, the recusal memorandum was hand-dated (suggesting it had been prepared earlier but purposely not dated) and did not specify a reason for the recusal other than ‘an abundance of caution and to avoid any concerns regarding my impartiality,’ ” the filing states.
And by the time DOD announced Esper’s recusal on Oct. 22, the decision to award the contract to Microsoft had already been made, Amazon’s filing alleges, citing a “source selection decision” document signed on Oct. 17.