A fed­eral judge

The Washington Post - - FRONT PAGE - BY AARON GREGG [email protected]­post.com

or­dered the Pen­tagon to halt work on a cloud com­put­ing con­tract awarded to Mi­crosoft af­ter Ama­zon sued, ar­gu­ing Trump in­ter­fered in the process.

A law­suit brought by Ama­zon has forced the Pen­tagon to again pump the brakes on an ad­vanced cloud com­put­ing sys­tem it sought for years, prompt­ing yet an­other de­lay the mil­i­tary says will hurt U.S. troops and hin­der its na­tional se­cu­rity mis­sion.

A fed­eral judge Thurs­day or­dered the Pen­tagon to halt work on the Joint En­ter­prise De­fense In­fra­struc­ture cloud com­put­ing net­work, known as JEDI, as the court con­sid­ers al­le­ga­tions that Pres­i­dent Trump im­prop­erly in­ter­fered in the bid­ding process.

The order comes just one day be­fore the De­fense De­part­ment had planned to “go live” with what it has long ar­gued is a cru­cial na­tional de­fense pri­or­ity.

A De­fense De­part­ment spokes­woman said the lit­i­ga­tion will hurt U.S. troops.

“We are dis­ap­pointed in to­day’s rul­ing and be­lieve the ac­tions taken in this lit­i­ga­tion have un­nec­es­sar­ily de­layed im­ple­ment­ing Dod’s mod­ern­iza­tion strat­egy,” Rachel Van­john­son, a spokes­woman for the Pen­tagon’s cloud com­put­ing pro­gram of­fice, said in a state­ment. “How­ever, we are con­fi­dent in our award of the JEDI Cloud con­tract to Mi­crosoft and re­main fo­cused on get­ting this crit­i­cal ca­pa­bil­ity into the hands of our warfight­ers as quickly and ef­fi­ciently as pos­si­ble.”

The JEDI con­tract is meant to cre­ate a pow­er­ful, cen­tral­ized com­puter sys­tem op­er­ated by a com­mer­cial tech­nol­ogy com­pany.

The JEDI cloud is ex­pected to im­prove U.S. troops’ ac­cess to tech­nol­ogy and in­tel­li­gence in far-flung war zones. It is also ex­pected speed up the adop­tion of ad­vanced ar­ti­fi­cial in­tel­li­gence that can quickly scan ter­abytes worth of drone sur­veil­lance footage and serve as a step­ping­stone for not-yet-imag­ined de­fense ca­pa­bil­i­ties.

The sought-af­ter con­tract, worth up to $10 bil­lion over 10 years, was awarded to Mi­crosoft in late Oc­to­ber af­ter a last-minute in­ter­ven­tion from the White House prompted De­fense Sec­re­tary Mark T. Esper to re­ex­am­ine the de­part­ment’s ap­proach.

Ama­zon’s mar­ket-leading cloud com­put­ing divi­sion is su­ing the De­fense De­part­ment in the U.S. Court of Fed­eral Claims, ar­gu­ing the pres­i­dent’s in­volve­ment skewed the play­ing field in its ri­val’s fa­vor. The com­pany al­leges the De­fense De­part­ment made nu­mer­ous er­rors as it weighed bids from Ama­zon and Mi­crosoft. And it ac­cused Trump of launch­ing “re­peated pub­lic and be­hind-the-scenes at­tacks” against Ama­zon to act on a grudge against the com­pany’s founder, Jeff Be­zos. (Be­zos also owns The Wash­ing­ton Post.)

In an ex­tra­or­di­nary move, the com­pany has asked to de­pose Trump, along with Esper, for­mer de­fense sec­re­tary Jim Mat­tis and other of­fi­cials. Late last month, Ama­zon filed a mo­tion seek­ing to halt fur­ther con­tract per­for­mance while the court eval­u­ates Ama­zon’s claims.

Ge­orge Wash­ing­ton Univer­sity law pro­fes­sor Steven Schooner, a leading ex­pert in gov­ern­ment con­tracts law, said it is rare though not un­prece­dented for a court to order a halt to con­tract per­for­mance de­spite ob­jec­tions by the Jus­tice De­part­ment, which is rep­re­sent­ing the De­fense De­part­ment in the case.

“What is par­tic­u­larly sig­nif­i­cant is that, given [the Jus­tice De­part­ment’s ob­jec­tion] … the Court is sig­nal­ing that it is more likely than not that [Ama­zon] has pled a case in which it ap­pears to be en­ti­tled to a rem­edy and may, ul­ti­mately, pre­vail on the mer­its,” Schooner said in an email.

An Ama­zon spokesman did not im­me­di­ately re­spond to a re­quest for comment on the rul­ing. Frank X. Shaw, Mi­crosoft’s vice pres­i­dent of cor­po­rate com­mu­ni­ca­tions, ex­pressed dis­ap­point­ment in the de­ci­sion and de­fended the Pen­tagon’s han­dling of JEDI.

“While we are dis­ap­pointed with the ad­di­tional de­lay we be­lieve that we will ul­ti­mately be able to move for­ward with the work to make sure those who serve our coun­try can ac­cess the new tech­nol­ogy they ur­gently re­quire,” Shaw said in a state­ment.

When Ama­zon filed its re­quest to halt per­for­mance, com­pany spokesman Drew Her­dener ar­gued that it is “com­mon prac­tice” to halt con­tract per­for­mance dur­ing a bid protest, adding that the com­pany sup­ports the Pen­tagon’s tech­nol­ogy mod­ern­iza­tion ini­tia­tives.

Thurs­day’s news came with a tinge of irony for Ama­zon, which finds it­self now op­posed to the Pen­tagon’s po­si­tion. For most of last year, at­tor­neys from Ama­zon and the Jus­tice De­part­ment worked to­gether to de­fend JEDI from a sep­a­rate le­gal case brought by an­other com­pany.

“It is kind of a sta­tus quo in gov­ern­ment that ev­ery­thing gets protested,” Teresa Carl­son, pub­lic-sec­tor vice pres­i­dent at Ama­zon Web Ser­vices, said at a re­cent con­fer­ence, adding, “which is kind of sad, be­cause it de­lays in­no­va­tion.” (Carl­son’s com­ments came be­fore AWS filed its bid protest.)

The JEDI con­tract has al­ready been de­layed more than a year past its orig­i­nal planned start date. An ear­lier bid protest brought by Or­a­cle forced de­lays as var­i­ous al­le­ga­tions against Ama­zon re­quired in­ves­ti­ga­tion. The case is be­ing ap­pealed.

Out­side the court­room, Or­a­cle separately waged a long-run­ning lob­by­ing cam­paign seek­ing to get the pres­i­dent in­volved.

Those ef­forts seemed to bear fruit last sum­mer. Trump said in a July 18 news con­fer­ence that he had re­ceived “tremen­dous com­plaints” from com­pa­nies that com­pete with Ama­zon, specif­i­cally nam­ing Or­a­cle, IBM and Mi­crosoft.

Then, in late July, Esper launched a review of the Pen­tagon’s broader ap­proach to JEDI, telling The Post he wanted to “take a hard look” at the con­tract. De­fense of­fi­cials have in­sisted that Trump did not “order” Esper to make any spe­cific de­ter­mi­na­tion with re­spect to JEDI. They have ar­gued it fol­lowed a sep­a­rate track from the De­fense De­part­ment pro­cure­ment ex­perts who eval­u­ated bids.

Court doc­u­ments have sub­se­quently re­vealed that Esper did meet with in­di­vid­u­als closely in­volved in the eval­u­a­tion process as part of his review.

In court fil­ings un­sealed Wednesday, the De­fense De­part­ment es­ti­mated that putting an­other hold on JEDI would cost it be­tween $5 mil­lion and $7 mil­lion ev­ery month it is held up. Al­though mil­i­tary agen­cies have at least 20 other con­tracts they can use to order cloud com­put­ing ser­vices, their ex­ist­ing ones are seen as too un­wieldy. Sev­eral of them work through mid­dle­men known as “cloud bro­kers” and re­quire com­put­ing ser­vices to be or­dered man­u­ally, which can cause sig­nif­i­cant de­lays.

“The United States can­not ex­pect mil­i­tary success fight­ing to­mor­row’s con­flicts with yes­ter­day’s tech­nol­ogy,” Air Force Lt. Gen. Brad­ford Sh­wedo, who over­sees com­mand, con­trol, com­mu­ni­ca­tions and cy­ber ini­tia­tives at the De­fense De­part­ment, wrote in a court fil­ing un­sealed Wednesday.

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