throbber
Case 1:19-cv-01796-PEC Document 146-1 Filed 02/10/20 Page 1 of 43
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`Case 1:19-cv-01796-PEC Document 124 -1 - Filed 01/17/20 Page 1 of 43
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`IN THE UNITED STATES COURT OF FEDERAL CLAIMS
`BID PROTEST
`
`AMAZON WEB SERVICES, INC.,
`
`Plaintiff,
`
`v.
`
`UNITED STATES OF AMERIC
`by and through the U.S. Department of Defense,
`
`Defendant,
`
`and
`
`MICROSOFT CORPORATION,
`
`Defendant-Intenrenor.
`
`Case No. 19-cv-01796
`
`Judge Campbell-Smith
`
`FINAL REDACTED
`VERSION
`
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
`PLAINTIFF AMAZON WEB SERVICES, INC.'S
`PPLEMEJ T THE ADMINISTRATIVE RECORD
`RENE\VED MOTION TO
`
`-
`
`

`

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`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ................................................................ ., .................. ~ ................. iii
`
`INTRODUCTION ························-······························································································· 1
`
`QUESTION PRESENTED .......................................................................................................... 3
`
`STATEMENT OF FACTS ........................................................................................................... 3
`
`A. President Trump Has Consistently Interfered with the Administration of
`Governmental Fllllctions-Including Government Procurements-to Advance
`His Personal Agenda ....................................................................................................... 3
`
`B. President Trump's Long-Standing Hostility Towards Amazon and Mr. Bezos
`and the President's Efforts to Influence the JEDI C ntra t Award Process ................... 7
`
`C. The Unusual Cir umstances Surrounding DoD's Award of the JEDI Contract to
`Microsoft ................................ ........................................................... .............. .............. 12
`
`D. AWS Files Bid Protest After DoD Fails to Respond to AWS's Debriefing
`Questions in Violation of Procurement Law ................................................................. 14
`
`LEGAL STANDARD ................................................................................................................. 15
`
`ARGUMENT ............................................................................................................................... 17
`
`A. AWS Has Made Well-Grounded Allegations of Bias and Bad Faith that
`Require Supplementation of the Administrative Record ............. ............. .. .... .............. 18
`
`1.
`
`The President's Overt Bias Infected DoD Officials' Decisions and
`1',,fotivated Them to Act in Bad Faith ....................................... ................ ............... 19
`
`2. DoD 's Award Decision Cannot Be Explained Absent Bad Faith ... .............. ........ 25
`
`B. The Court Should Supplement the Achninistrative Record with AWS's
`Evidence Relating to Bias and Bad Faith ........................................ .............................. 28
`
`C. The Court Should Grant A WS Leave to Supplement the Administrative Record
`with Targeted Discovery Regarding A WS's Bias and Undue Influence Claims ......... 31
`
`CONCLlJSION ........................................................................................................................... 38
`
`11
`
`-
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`

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`TABLE OF AUTHORITIES
`
`Pnge( )
`
`Cases
`
`AshBritt, Inc. v. United States,
`87 Fed. Cl. 344 (2009) ............................. ........... .......... ...................................... .......... .......... .31
`
`A IT, Inc. v. Dep 't of Transp.,
`41 F.3d 1522 (D.C. Cir. 1994) ............................................... .... .... .. ..... ............................. 16, 21
`
`Axiom Res. Mgmt., Inc. v. United States,
`564 F.3d 1374 (Fed. Cir. 2009) ........................ ................ ............ .. ........ ...................... .... ..... ... 15
`
`BayF;rst Sols., UC v. United States,
`102 Fed. CL 677 (2012) ......................................................... ... .............. ................. ................ 19
`
`Beta Analytics Int'/, Inc. v. United States,
`61 Fed. Cl. 223 (2004) .................................................................................. .. ... 3, 15, 17, 19, 24
`
`Clinton v. Jones,
`520 U.S. 681 (1997) ...................................... ......................................... ..... .... ..... .... .. .............. 34
`
`Connecticut v. Dep 't of Interior,
`363 F. Supp. 3d 45 (D.D.C. 2019) .......................................................................... ................. 21
`
`Dep 't of Commerce v. New York,
`139 S. Ct. 2551 (2019) ............ ............ ......................................... ............................................ 15
`
`Galen M, d. Assocs., Inc. v. United States,
`369 F.3d 1324 (Fed. Cir. 2004) ............................. .............................. .. ..... ....... ............. .......... 30
`
`lnfore/iance Corp. v. United States,
`118 Fed. CL 744 (2014) ................. .. .. ...................... ......... .................... ... ............................. ... 33
`
`l11t'l Res. Recove,y, Inc. v. United States,
`61 Fed. Cl. 38 (2004) .................................................... ..... ........... .. ................. ...... ...... 15, 16, 31
`
`J.C.N Co11str. Co. v. United States,
`60 Fed. Cl. 400 (2004) ............................................ .......................................................... .. ..... 32
`
`Jarratt v. Scrivener,
`225 F. Supp. 827 (D.D.C 1964) ......... .. ................. ........... .......... ......... .... ..... .. .. .. ..... ..... 19, 20, 23
`
`Knight First Amendment Inst. at Columbia Univ. v. Tmmp,
`928 F.3d 226 (2d Cir. 2019) ................. ....... ..... ... ................... ........... .. ............ ...... .. ................. .. 9
`
`111
`
`

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`L-3 Commc 'ns Integrated Sys., L.P. v. United States,
`91 Fed. CL 347 (2010) ............................... ..................................... ..... 15, 16, 17, 18, 21, 30, 33
`
`New Dynamics Found. v. United States,
`70 Fed. Cl. 782 (2006) ····························-··· .. ······························································· ···········30
`
`Orion Int'/ Techs. v. United States,
`60 Fed. Cl. 338 (2004) .............................................................................................................. 16
`
`Palantir USG, Inc. v. United States,
`129 Fed. Cl. 218 (2016) .......................................................................... .. ......................... 18, 33
`
`Pitney Bowes Gov't Sols., Inc. v. United States,
`93 Fed. CL 327 (2010) ................................................................................................. 15, 16, 32
`
`Stany Assocs., Inc. v. United States,
`125 Fed. CL 613 (2015) ................................................................. 16, 17, 19, 20, 22, 24, 32, 37
`
`United States v. AT&T,
`310 F. Supp. 3d 161 (D.D.C. 2018) .................. ................................................ ......................... 5
`
`United States v. AT&T,
`916 F.3d 1029 (D.C. Cir. 2019) ................................................................................................. 5
`
`Veg-Mi:-r, Inc. v. Dep 't of Agriculture,
`832 F.2d 601 (D.C. Cir. 1987) ............................................................................. .................... 30
`
`Statutes
`
`l0U.S.C. § 2305(b)(5) ........................................ ........................................................ ............ 14, 35
`
`18 U.S.C. § 208 ................................................................................................ ......... .... ................. 13
`
`Rules
`
`Rules of the United States Cornt of Federal Claims, Rule 30 ......................................... ·-···········33
`
`Regulations
`
`48 C.F.R. § 3.401 ............................................................................................... ................... ..... .... 19
`
`48 C.F.R. § 15.506(a) ......................................................................................... ... ........ ................. 14
`
`lV
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`

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`INTRODUCTION
`
`Plaintiff Amazon Web Seivices, Inc. ("AWS") respectfully moves to supplement the
`
`administrative record ("AR") submitted by the Defendant, the United States of America, acting by
`
`and through the Department of Defense ("DoD''), in connection with AWS's protest of the award
`
`of the Joint Enterprise Defense Infrastructure ("JEDI'') Contract, Solicitation No. HQ0034-l 8-R-
`
`0077, to Microsoft Corporation ("Microsoft").
`
`This case demands an expanded AR so that the Court may fully assess AWS's well(cid:173)
`
`grounded claims of bias and bad faith. President Donald J. Trump has repeatedly demonstrated
`
`his willingness to use his position as President and Commander in Chief to disrupt the orderly
`
`administration of government functions-including federal procurements-to advance personal
`
`motives. There is no question he did so here.
`
`President Tnunp's bias against Jeffrey P. Bezos, founder of AWS's parent company,
`
`Amazon.com, Inc. ("Amazon"), is a matter of public record. Even before taking office, President
`
`Tm.mp campaigned on a promise that Amazon would "have problems" if he became President.
`
`When it came time for DoD to select a cloud-services provider to fulfill the important JEDI
`
`Conti-act, the President made crystal clear-both to the public at large, and by clear implication to
`
`senior DoD officials (including his political appointees}--that he did not want his Administration
`
`to award the contract to A WS. In addition to his public tweets and statements criticizing Amazon
`
`and Mr. Bezos, he directed DoD to «screw Amazon" out of the JEDI Contract, and in July 2019,
`
`again ordered DoD to "look ve1y closely" into the JEDI procurement based on his own claim of
`
`"tremendous ... complaints" about AWS. Upon receiving that instrnction, Secreta1y of Defense
`
`Mark T. Esper embarked upon an "exmnination" of the procurement and met multiple times with
`
`procurement personnel tasked with evaluating the JEDI proposals. During this time period, DoD
`
`

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`evaluators' reports shifted in favor of Microsoft and against AWS, ultimately culminating in a
`
`recommendation for the Source Selection A uthority to award the JEDI Contract to Microsoft.
`
`In awarding the JEDI Contract to Microsoft, DoD committed numerous and compom1ding
`
`prejudicial enors. These errors pervaded nearly eve1y evaluation factor to systematically disfavor
`
`AWS, including DoD arbitrarily relying on an outdated, superseded version of AWS's proposal;
`
`contradicting its own earlier factual detenninations; misstating facts from AWS's proposal;
`
`downplaying gross deficiencies and failures in Microsoft's proposal and demonstrations; and
`
`fabricating areas of superiority in the final stages of evaluation to favor Microsoft. These err01·s
`
`ultimately resulted in DoD awarding the JEDI Contract to a technologically inferior proposal that
`
`did not present the best value to the Government.
`
`At a minimum, these en-ors reveal a process that was fatally flawed and highly unusual.
`
`But the clear, public record of the Co.ll.llDander in Chiefs personal animus toward Amazon and
`
`Mr. Bezos, his campaign pledge to ensure that Amazon would "have problems" if be became
`
`President, and his unprecedented interference in the JEDI award process with the DoD leadership
`
`team all demruJd that DoD 's errors be assessed in light of a full record of that bias and pressure.
`
`Accordingly, A WS seeks discovery and supplementation that are narrowly tailored to include the
`
`public record of bias and to develop facts not cunently known or accessible to A WS demonstrating
`
`exactly how President Tnunp's order to "screw Amazon" was carried out during the decision(cid:173)
`
`making process.
`
`Without supplementation, the Court cannot objectively and fully evaluate AWS's credible
`
`and well-grollllded allegations about bias and bad faith. Moreover, even the unquestionable
`
`appearance of bias in this case alone requires a supplemented AR to dispel any doubts about the
`
`hue basis for DoD's action. Tue rule oflaw, the preservation of public confidence in the nation's
`
`2
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`

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`procurement process, and A WS' s right to fully present its case for effective judicial review compel
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`targeted discove1y and supplementation of the AR.
`
`QUESTION PRESENTED
`
`In light of AWS's well-grounded and credible allegations of bad faith and bias, should the
`
`Court permit targeted discovery and supplementation of the AR to ensure that all material facts
`
`are presented to the Court and to allow the Court to objectively and fully evaluate the bid protest?
`
`STATEMENT OF FACTS
`
`DoD's decision to award the JEDI Contract to Microsoft resulted from numerous and
`
`compounding prejudicial errors that systematically overlooked critical aspects of A WS's and
`
`Microsoft's proposals to skew the best-value determination in :tvli rosoft's favor. These troubling
`
`errors alone are enough to require reversal of the award. But this case also raises a more
`
`fundamental and disturbing concern about the integrity of the JEDI procurement process and how
`
`President Trump used his position as President and Commander in Chief to improperly influence
`
`that process in furtherance of his personal and political interests.1
`
`A.
`
`the Administration of
`President Trump Has Consistently Interfered with
`Governmental Functions-Including Government Procurements-to Advance His
`Personal Agenda
`
`This bid protest does not occ1u- in a vacuum or on a blank slate. It takes place against the
`
`backdrop of President Trump's repeated intervention in the full spectmm of governmental
`
`functions to make a point to his perceived critics or to advance some personal agenda. In just the
`
`procurement space alone, President Tnnnp has interfered in a series of significant govenunent
`
`1 The Com1 may rely on the extra-record evidence cited herein, which suppo11s requests for
`supplementation where there are allegations of bad faith and bias. See Beta Ana~ytics Int'!,
`Inc. v. United States, 61 Fed. Cl. 223,226 (2004) (''[A] party may rely on extra-record evidence
`to support its claim that discove1y regarding bad faith conduct is necessaiy.").
`
`3
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`

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`contract awards. For example, liis role in the U.S. Anny Corps of Engineers' award of a $400
`
`million border wall constmction contract to Fisher Industries in December 2019 has raised serious
`
`concerns a bout the propriety of that procurement decision. Although the Army initially fotmd that
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`Fisher Indn tries' proposal failed to even meet specifications for the construction contract, after a
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`months-long campaign by Fisher Industries (including repeated television appearances on Fox
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`News targeted to President Trump), President Tromp stated that Fisher Industries had been
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`"recommended strongly" for the contract and "immediately brought up Fisher [Industries]" during
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`meetings with DoD officials regarding the border wall. See Appendix ("APP") 399; APP 413.
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`Soon after, the Army awarded a $400 million border wall construction contract to Fisher
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`Industries-a decision ti1at prompted the DoD Inspector General to investigate "the possibility of
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`inappropriate influence" on the contracting decision." APP 482.
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`Similarly President Trnmp reportedly intervened in the General Services Administration's
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`("GSA") solicitation of bids to move the Federal Bureau of Investigation's headquarters away
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`from the nearby Trump futemational Hotel in downtown Washington, D.C., to a new consolidated
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`campus in suburban Maryland or Virginia. Preparations for the move had been underway for
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`nearly a decade and GSA appeared poised to 1u10ounce its award. However, following several
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`meetings with the President and White House officials, GSA and the FBI announced that FBI
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`headquaI1ers would in fact remain at its current site, effectively eusw-.ing that the site would not be
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`redeveloped by potential competitors to the Trump International Hotel. While the GSA
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`Administrator had testified to Congress that the decision to remain at its current location "came
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`from the FBI," a GSA Inspector General investigation later concluded that this testimony was
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`"incomplete and may have left the misleading impression tliat she had no discussions with the
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`President or senior White House officials in the decision-making process about the project."
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`4
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`

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`APP 323. The GSA Inspector General's investigation also identified nonpublic emails that
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`referenced «what POTUS directed everyone to do" and "POTUS's orders" regarding the project.
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`APP 312. The Department of Justice fuspector General has launched its own investigation into
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`President Trnmp's interference in the FBI headquarters consolidation project. See APP507.
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`This pattern of interference extends beyond procurements, and the parallels are clear. In
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`another very public example, President Trump has gone to extraordinaiy lengths to attack CNN, a
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`news outlet that, like the Washington Post, President Trump perceives as hostile toward his
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`Administration and political views. First, he pushed to block a merger between CNN's parent
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`company (Time Warner) and AT&T, which before President Trump was elected, was well on its
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`way to obtaining clearance from the DOJ. See APP 269-71.2 But soon after President Tmmp
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`entered office-and reportedly at President Trnmp's request-the Department of Justice reversed
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`its position, eventually filing suit to block the merger that it previously said it was prepared to
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`support.3 The courts ultimately rejected the lawsuit and allowed the merger to close. See United
`
`States v. AT&T, 916 F.3d 1029 (D.C. Cir. 2019); U11Ued States v. AT&T, 310 F. Supp. 3d 161
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`(D.D.C. 2018).
`
`Second, in November 2018, the Trump White House and Secret Service abmptly revoked
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`the press credential of CNN's Chief White House c.orrespondent Jim Acosta just hours after a
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`2 Experts long believed that the merger would easily receive govemuient approval. APP 235.
`Even President Trnmp's foture head of the DOJ Antitrnst Division, Makan Delrahim, believed
`that the merger did not pose "a major antitmst problem." APP 230; see also APP 239.
`3 APP 388 ("[I]n the late summer of 2017, a few months before the Justice Department filed
`suit, Tnunp ordered Ga1y Cohn, then the director of the National Economic Council, to
`pressure the Justice Department to intervene. According to a well-informed source, Trump
`called Cohn into the Oval Office along with John Kelly, who had just become the chief of staff:
`and said in exasperation to Kelly, 'I've been telling Cohn to get this lawsuit filed and nothing's
`happened! I've mentioned it fifty times. And nothing's happened. I want to make sure it's
`filed. I want that deal blocked!'").
`
`5
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`

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`contentious press conference, during which President Tnnnp called the reporter a "mde, terrible
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`person" and accused him of "report[ing] fake news." APP 344---45. The press credential was
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`restored only after CNN sued President Tnunp and other officials in his Admiuistration and a
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`federal court ordered the immediate restoration of Acosta's credential. See APP 36~4.
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`Rebuffed but undeterred by the courts, the President then called for a boycott of AT&T in attempt
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`to force CNN to change its reporting. See APP 418.
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`Finally, this bid protest also occurs against the background of impeachment-
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`the third in
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`the history of the United States, and which is grounded in the President's repeated refusal to
`
`separate his personal interests from the national interest. Even though all of the relevant, high(cid:173)
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`level officials from DoD and the White House--including Secretary of Defense Esper, Secretary
`
`of State Mike Pompeo, and then-National Security Advisor John Bolton-believed that providing
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`military aid to Ukraine in its fight against Russian-backed separatists was critically important to
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`U.S. national security. see APP 499, President Trump nonetheless gave "[c]lear direction ... to
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`continue to hold" the congressionally mandated aid, reportedly in order to persuade the President
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`of Ukraine to investigate one of President Tnunp's political rivals, APP 483. And while President
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`Trump's subordinates initially resisted bis demands, they ultimately gave in and were forced to
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`develop dubious legal and post-hoc justifications for withholding the aid. See generally APP 484-
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`98. Government officials confinned they did not "fe[el] they could" stop the President, and those
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`that did try to stop him were removed from relevant positions or from government altogether.
`
`APP 455.4
`
`4 In yet another public example-and one again involving Secretaiy Esper-President Tmmp's
`intervention in the case of Chief Petty Officer Edward Gallagher further shows the risk to
`government officials who disagree with him. President Trnmp ovem.1led the judgment of top
`
`6
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`

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`The JEDI procurement took place in the midst of this pattern of Presidential interference,
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`which in the absence of any other facts would, at the very least, prompt questions about the
`
`regularity of the high-profile JEDI procmement.
`
`B.
`
`President Trump's Long-Standing Hostility Towards Amazon and Mr. Bezos and the
`President's Efforts to Influence the JEDI Contract Award Process
`
`But there are more facts. President Trump's personal dislike of Mr. Bezos, Amazon, and
`
`the Washington Post (which is owned by Mr. Bezos) is no secret, and originates at least in pat1
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`from his dissatisfaction with the Washi11gto11 Post's coverage of him from before and since he
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`assumed office. See Compl. ,i,i 15-21, 84---86. Long before the inception of the JEDI source
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`selection process, President Trump regularly lashed out against the Washi11gton Post and over
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`time has extended his attacks to Mr. Bezos and Amazon, often conflating the three. For example,
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`in late December 2015, he publicly complained that the Washington Post gave Mr. Bezos ''power
`
`to screw (the] public," and that he hoped Amazon "would crumble [sic] like a paper bag." Id. ,r 84;
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`APP 002; APP 003. When then-candidate Tnunp made his foray into the political sphere, he made
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`clear that if he became President he would use his power to disadvantage Amazon and the
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`Washington Post: "[B]elieve me, ifl become president, oh do they have problems. They're going
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`to have such problems." Compl. iM! 16, 84; APP 005.
`
`Navy officials who called for an administrative review board to decide whether Gallagher
`should be expelled from the Navy SEALs for his alleged misconduct. See APP 463. After
`then-Secretary of the Navy Richard Spencer raised concerns about President Trump's
`interference in internal military disciplinaty affairs, President Tmmp instructed SecTetmy of
`Defense Esper to demand Spencer's resignation. Secretary Esper obeyed President Trnmp's
`directive, explaining that regnrdless of how he felt about President Trnmp's actions, "[t]he
`president is the commander in chief," that the President "has eve1y right, authority and
`privilege to do what he wants to do," and that he would "[ a ]bsolutely" follow the President's
`directives. APP 474-75.
`
`7
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`By the time DoD launched its search for a cloud services provider to fulfill the JEDI
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`Contract, the President-emboldened by allies who also were Amazon's competitors-put A WS
`
`in the crosshairs of his campaign against Mr. Bezos and Amazon by deliberately influencing
`
`DoD's procmement decision. For instance, in early 2018, President Trump held a private dinner
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`with Safra Catz, co-CEO of AWS-competitor Oracle and a member of President Trump's
`
`presidential transition team. Doong that dinner, Ms. Catz advocated against awarding A WS the
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`JEDI Contract. Compl. ,i 88; APP 084; APP 218. In the days surro1mding his dinner with Ms.
`
`Catz, President Tmmp increased his negative public rhetoric toward Amazon. Compl. ,i 89;
`
`APP 017; APP 020; APP 021.
`
`Similarly, it was reported in April 2018 that President Tnunp discussed with his advisors
`
`ways to "escalate his Twitter attacks on Am~on to further damage the company," with advisors
`
`tating that "[Pxesident Trnmp]'s obsessed with Bezos" and that "Tmmp is like, how can I fl'*k
`
`with [Mr. Bezos ]?" Comp 1. ,r 90; APP O 19. So President Tmmp 's advisors encomaged him to
`
`"cancel Amazon's pending multi-billion contract with the Pentagon to provide cloud computing
`
`services." APP 019. President Tnunp's discussions with Ms. Catz audhis advisors culminated in
`
`the summer of 2018, when he ordered his then-Secretary of Defense James Mattis to "screw
`
`Amazon" out of the JEDI Contract. Comp 1. ,Ml 19, 9 I; APP 069. But after Secretaiy Mattis
`
`demurred, President Trump fired him six months later-a predictable move given the parade of
`
`individuals, like Secretary Mattis, who were forced from their positions after disagreeing with the
`
`President. CompL ,r,r 21, 91; APP 043.
`
`Against this backdrop, during a July 18, 2019 press conference, President Trump
`
`allllounced that he was looking "ve1y seriously" into the JEDI procurement (which he mistakenly
`
`referred to as "The Amazon" process) and that be "w[ ould] be asking [DoD] to look at it very
`
`8
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`closely" because of supposed "complaints about the contract with the Pentagon and with Amazon."
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`Campi. ,r 95; APP 059. That same day, President Tmmp's son alleged in a tweet that Mr. Bezos
`
`and Amazon had engaged in "shady and potentially conupt practfoes," and he ominously predicted
`
`that it "may come back to bite them" with respect to the JEDI Contract-a sentiment that President
`
`Tmmp echoed a few days later on July 22, 2019, when he retweeted television coverage decrying
`
`the JEDI Contract as the "Bezos Bailout." Compl. ,Mi 96-97; APP 062; APP 079; see also
`
`APP200.
`
`Twitter-President Trump's preferred tool for broadcasting his directives, and which are
`
`considered official White House statements5-was not the only means by which President TlUillp
`
`injected his bias and influence into the JEDI award process. President Tmmp also exerted his
`
`influence over DoD political appointees overseeing the JEDI procurement, who serve at his
`
`pleasure and facilitated his improper influence over the JEDI procurement personnel.
`
`Secretary of Defense Esper is one such official. Appointed by President Trump and
`
`replacing ousted Secretary Mattis in July 2019, Secretaiy Esper has recently reiterated his
`
`commitment to the President, stating his belief that as Commander in Chief, the President "has
`
`every right, authority and privilege to do what he wants to do," and that he would "[a]bsolutely"
`
`follow whatever the President told him to do. See infra, pp. 21-22; APP 474--75. And as Secretary
`
`of Defense, Secretary Esper has direct authority over DoD's Chief Infmmation Officer, who is
`
`5
`
`See APP 233 (White Honse Press Secretary Sean Spicer stating that President Trump's tweets
`are "considered official statements by the President of the United States"); APP 432 (reporting
`that President Trump told two senior advisors that "[i]f I don't tweet it, don't listen to my
`staff'). See also Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 2~6, 236
`(2d Cir. 2019) (noting that "the President ... acts in an official capa'city when he tweets").
`
`9
`
`

`

`Case 1:19-cv-01796-PEC Document 146-1 Filed 02/10/20 Page 14 of 43
`
`Case 1:19-cv-01796-PEC Document 124-1--* Filed 01/17/20 Page 14 of 43
`
`responsible for running the JEDI procurement through the Defense Digital Service ("DDS,,). See
`
`AR Tab 25 at 476.
`
`On August I, 2019, Secretary Esper announced tl1at he would be talcing a "hard look" at
`
`the JEDI procurement after "hear[in°] from folks in the administration." Compl. ,r 176; APP 083.6
`
`The following day, Secretary Esper continued that he had "heard from people from the White
`
`House" that he should take a "good, tl1oro11gh look,, at the JEDI procurement, adding that he would
`
`potentially "go in a different direction" from "what has transpired over the last ... mouths or years
`
`on this project." APP 100. Consistent with Secretary Esper's comments, DoD later confirmed
`
`that "[n]o decision w[ ould] be made on the [JEDI] program until [Secretary Esper] has completed
`
`his examination"--even though just days earlier, a DoD spokesperson had told repo1ters that DoD
`
`would be awarding the JEDI Contract in August. Compl. ,r 175; APP 088; APP 217. After
`
`Secretary Esper's allllmmcement that he would personally intervene in the JEDI proposal
`
`evaluation process, Donald Trump, Jr., publicly hinted that A WS w nld not be the awardee,
`
`tweeting that "the democrats ai·en't buying the BS coming from Bezos Inc." and that it "[s]ounds
`
`like the corrupt #BezosBailout is in trouble." Compl. ,i 177; APP 105--06.
`
`Although at least two senators urged Secretary Esper "to resist political pressures that
`
`might negatively affect the implementation of sound acquisition practices and of the cloud
`
`strategy" those concerns appear to have gone unheeded. See APP 201. Public records indicate
`
`that Secretary Esper met with President Trump at least six times from August I to Octobe1· 8, 2019.
`
`APP 213-16; APP 229; APP 499. Additionally, the AR shows that Secreta1y Esper met with
`
`6 Behind the scenes, Secretmy Esper's review of JEDI had in fact already begm1, including in a
`one-on-one "Read Al1ead" meeting with the DoD Chief Infonnatiou Officer on July 29. See
`AR Tab 335 (Read A11ead for July 29, 2019 Infonnatiou Session "SD/CIO lv l meeting").
`
`

`

`Case 1:19-cv-01796-PEC Document 146-1 Filed 02/10/20 Page 15 of 43
`
`Case 1:19-cv-01796-PEC Document 124-1-* Filed 01/17/20 Page 15 of 43
`
`procurement personnel tasked with evaluating the JEDI proposals during a series of at least five
`
`"informational sessions" from July to September 2019. See AR Tabs 335, 439, 440, 453, 462.
`
`TI1e AR omits c1itical information and includes only linrited documentation surrounding these
`
`"infonuational sessions." But what little has been provided demonstrates that, contrary to DoD
`
`Chieflnformation Officer Dana Deasy's congressional testimony, the procurement officia]s were
`
`not in fact shielded from the President's influence.7 To the contrary, at ]east four of Secretary
`
`Esper's "inforn1ation sessions" were attended by, and the "read aheads" for those briefings
`
`prepared by, the chair of the Source Selection Evaluation Board ("SSEB"),
`
`See
`
`AR Tabs 335, 439, 440, 453.
`
`The close contact between Secretary Esper and the SSEB Chairperson -
`
`1s
`
`particularly concerning. As the sole person comprising the SSEB, -
`
`had considerable
`
`responsibility in the procurement process. -w a s tasked with "summariz[ing] the findings
`
`of' the Technical Evaluation Board responsible for evaluating the technical elements of each of
`
`the offerors' proposals, interfacing between the technical evaluators and the Source Selection
`
`Advisory Committee ("SSAC") and Source Selection Authority ("SSA"), and

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