JEDI Update: Pentagon Files Voluntary Motion For Remand To Reconsider Microsoft Award

PilieroMazza PLLC

PilieroMazza PLLC

On March 12, 2020, the Department of Defense (DOD) filed a motion for voluntary remand requesting that the Court of Federal Claims (COFC) remand the Joint Enterprise Defense Infrastructure (JEDI) contract case for 120 days. This would allow DOD to reconsider certain aspects of its decision to award the JEDI contract to Microsoft. DOD’s re-evaluation could signify major flaws in the process.

For background, in November of 2019 Amazon Web Services (AWS) filed a bid protest with the COFC protesting DOD’s award of the hotly contested JEDI contract to Microsoft. Since filing its protest with the COFC, AWS, who was initially deemed the frontrunner for award, has continued its aggressive attack on the Pentagon’s decision. On February 13, 2020, AWS received an encouraging ruling from the COFC, wherein the court ordered an injunction staying performance of the lucrative procurement, significantly hampering Microsoft’s and the Pentagon’s ability to finally begin work on a contract that has been mired in litigation since 2018.

DOD’s motion for voluntary remand asks for additional time to reconsider its evaluation of the bidders’ technical approach to certain price scenarios and explains its intent to amend the solicitation and accept limited proposal revisions responding to said changes. DOD also wishes to reconsider its evaluation of the bidders’ online marketplace offerings, and it may conduct clarifications with the offerors relating to the availability of marketplace offerings.

Although corrective action, such as the one proposed by DOD in this case, is a common outcome for a bid protest, awardees, such as Microsoft, are often the most disappointed and most willing to challenge an agency’s decision to take a step back and re-evaluate proposals. In this case, it is Amazon, not Microsoft, who is displaying uneasiness with DOD’s request for remand. In response to the latest filing, Amazon has informed the COFC that it will be filing an opposition motion, likely seeking more expansive corrective action to insulate the re-evaluation from the Trump Administration’s influence and correct other issues of bias that Amazon has raised relative to the award.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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