throbber
Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 1 of 65
`
`IN THE UNITED STATES COURT OF FEDERAL CLAIMS
`BID PROTEST
`
`AMAZON WEB SERVICES, INC.,
`
`Plaintiff,
`
`V.
`
`UNITED STATES OF A ffiR1 A,
`by and through the U.S. Department of Defense,
`
`Defendant,
`
`and
`
`MICROSOFT CORPORATION,
`
`Defendant-Inte1venor.
`
`Case No. 19-cv-01796
`
`Judge Campbell-Smith
`
`FINAL REDACTED VERSION
`
`PLAINTIFF'S- IE fORANDUM IN SUPPORT OF ITS MOTION FOR A
`TEMPORARY RESTRAlNING ORDER AND PRELL'1INARY INJUNCTION
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 2 of 65
`
`TABLE OF CONTENTS
`
`IN'IRODUCTION ......................................................................................................................... l
`
`QUESTION PRESENTED ............................................................................................................ 7
`
`STA TElvIENT OF TIIE CASE ...................................................................................................... 7
`
`ARGlTh1ENT ................................................. ......... ....................................................................... 9
`
`L
`
`A WS HAS SHOWN A LIKELIHOOD OF SUCCESS ON TIIE MERITS ....... 10
`
`A.
`
`Egregious Evaluation Errors with Respect to Factors 5, 8, and 3
`Unfairly Tilted the Source Selection in Microsoft's Favor ..................... l 0
`
`DoD Misevaluated Microsoft's Technical Approach for Price
`Scenario 6 ................................................................................................. 11
`
`2.
`
`3.
`
`B.
`
`L
`
`2.
`
`C.
`
`1.
`
`2.
`
`3.
`
`-
`
`tmderFactor 8 . ................................................ 17
`
`DoD's Evaluation of the Offerors' Tactical Edge Devices Was
`Unreasonable and Plagued by Disparate Treatment. ............................... 26
`
`dclitional Serious Evaluation Discrepancies Minioiized A WS's
`Technical Superiority ......................... ...................................................... 35
`
`DoD Improperly Minimized the Cloud Security Benefits of AWS's
`Nitro Hypervisor. .............. ........ .................................... ................... ......... 36
`
`DoD Misevaluated AWS's Third-Party Marketplace Offerings
`Based on Misleading and Unequal Discussions ...................................... 42
`
`DoD Misevaluated the A WS and Microsoft Proposals in a Host of
`Other Ways . ........................................ ..................................................... 45
`
`DoD Removed Previously Recognized Strengths Only from
`A WS 's Final Evaluation ................ .... ................ .............. ....... .. .. ............. 46
`
`A WS Deserved Several Additional Strengths for Exceeding
`Demonstration Requirements ...................................................... ............ . 47
`
`DoD Unreasonably Evaluated the Offerors' Management
`App1·oaches ........... ........... ........ .. ............. ......................... ... ................. .... 48
`
`II.
`
`THE REMAINING INJUNCTIVE FACTORS ALL FAVOR A WS ..... ............ 50
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 3 of 65
`
`A.
`
`B.
`
`C.
`
`Continued Performance of the JEDI Contract Will Result in
`Immediate and Irreparable Harm to AWS ............................................... 52
`
`Toe Balance of Hardships Favors Grantin Injunctive Relief ................. 54
`
`Injunctive Reliefis in the Public Interest. ............................................... 58
`
`CONCLUSION AND PRAYER FOR RELIEF .......................................................................... 59
`
`ll
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 4 of 65
`
`Cases
`
`TABLE OF AUTHORITIES
`
`BayFirst Sols., LLC -v. United States,
`102 Fed. CL 677 (2012) ........................................ ............... ..................... ...... ......................... 10
`
`Biifi11ger Berger AG Sede Seco11daria llaliana v. United States,
`97 Fed. CL 96 (2010) ............................................................................................................... 57
`
`Cherokee Nation Techs., LLC v. United States,
`116 Fed. Cl 636 (2014) ........................................................................................................... 58
`
`Cigna Gov'/ Servs., LLC v. United States,
`70 F.ed. Cl. 100 (2006) ............................................................................................................. 53
`
`FCN, Inc. v. United States,
`115 Fed. CL 335 (2014) ........................................................................................................... 52
`
`FMC Corp. v. United States,
`3 F.3d 424 (Fed. Cir. 1993) ........................................................................................................ 9
`
`FMS Inv. Corp. -v. United States,
`136 Fed. CL 439 (2018) ....................................................................................................... 9, 10
`
`GTA Containers, Inc. v. United States,
`103 Fed. Cl 471 (2012) ........................................................................................................... 57
`
`Heritage of Am., LLC v. United Stales,
`77 Fed. Cl. 66 (2007) ............................................................................................................... 52
`
`HP Enter. Servs., LLC v. United States,
`104 Fed. CL 230 (2012) .................................................. ........... ............. ............................ 51, 59
`
`Oracle Am., Inc. v. United Slates,
`144 Fed. Cl. 88 (2019) .............................................................................................. ............... 56
`
`Palantir USG, Inc. v. United States,
`1299 Fed. Cl. 218 (2016) ....................... ................... ..................... ........................... ............... 54
`
`Palladian Partners, Inc. v. United States,
`119 Fed. Cl. 417 (2014) ........... ..... ....................... ......... ........... .................. ............ .............. .... 52
`
`PGBA, LLC v. United States,
`57 Fed. Cl. 655 (2003) ... ............... ............... .......................................... ... ........ ............ .... ....... 58
`
`111
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 5 of 65
`
`Reilly's Wholesale Produce v. United States,
`73 Fed. CL 705 (2006) ................................................................................ ............. .... .............. 55
`
`Serco, Inc. v. United States,
`101 Fed. CL 717 (2011) ...................................................................................... ....................... 9
`
`Veterans Contracting Grp., Inc. v. United States,
`133 Fed. CL 613 (2017) ........................................................................................................... I0
`
`Statutes
`
`28 U.S.C. § 149l(b)(4) ...................................................................... ............................................ 10
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 6 of 65
`
`INTRODUCTION
`
`Plaintiff Amazon Web Services, Inc. ("A WS") requests that the Court issue a temporary
`
`restraining order and preliminary injlmction, ordering Defendant United States, by and through the
`
`Department of Defense ("DoD" or "the Agency"), and Defendant-Intervenor Microsoft
`
`Corporation ("Microsoft"), to immediately cease premature performance of the Joint Enterprise
`
`Defense Infrastructure ("JEDf') Con1rnc pending
`
`the Court's resolution of this bid
`
`protest. AWS's strong likelihood of success on the merits ofits protest challenging the propriety
`
`of the JEDI award to Microsoft, as well as the balance of harms among the parties and the public
`
`that would result from an injunction, warrant the Court's order of immediate equitable relief.
`
`AWS filed its Complaint on November 22, 2019. The Administrative Record ("AR"},
`
`delivered by the Government on January 3, 2020, although incomplete, confirms AWS's detailed
`
`allegations that DoD's award of the JEDI Contract to Microsoft suffers from numerous fatal
`
`errors-none of which is explained in the AR.1 In evaluating the proposals, DoD blatantly favored
`
`Microsoft by ignoring the failure of its cloud solution to meet .fundamental technical requirements
`
`and by obfuscating the clear superiority of A WS's cloud solution. This is not the typical bid protest
`
`where a disappointed offeror complains about subjective judgments made by the Government
`
`regarding the relative qualities of technical solutions. Here, DoD placed its thumb firmly on the
`
`source selection scale and skewed the evaluation in Microsoft's favor.
`
`1 Although these enors entitle A WS to relief regardless of the reason they occurred, it is possible,
`if not likely, they are the product of unprecedented and inappropriate pressure and interference by
`President Donald J. Tnnnp to drive the award away from A WS. AWS has filed a Renewed Motion
`to Supplement the Administrative Record and a Motion to Complete the Administrative Record to
`detennine whether, iu fact, President's Trnmp's very public bias infected the JEDI source selection
`process. See Pl. Sealed Renewed Mot. to Suppl. the • dm.inistrative R., ECF No.124; see also Pl.
`Sealed Mot. to Complete the Administrative R., ECFNo.127.
`l
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 7 of 65
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`DoD's dubious evaluation rests on clear violations of the solicitation ("RFP") requirements
`
`and a gross misreading of the proposals. The defective evaluation implicates virtually every source
`
`selection criterion. As the errors highlighted below demonstrnte, any one of them is so obvious
`
`and serious that it alone should persuade the Court to grant the requested injunctive relief, even
`
`before considering the numerous flaws in other areas.
`
`DoD Acee led a Plain!
`
`DoD ignored the fact that Microsoft proposed a squarely noncompliant technical approach
`
`for one of the RFP's price scenarios. Under Factor 5 (Application and Data Hosting and
`
`Portability), Price Scenario 6 required offerors to pric
`
`AWS's proposal described and priced a technical solution fo r (cid:173)
`
`. , as required by the RFP. Microsoft's proposal,
`
`Price Evaluation Board ("PEB"),
`
`-According to the
`
`The PEB erroneously assumed Microsoft's
`
`That error, while not excusable, was perhaps understandable, given the
`
`PEB's focus on price rather than on the technical aspects of tl1e proposals. But the Technical
`
`Evaluation Board ('TEB") and the Source Selection Evaluation Board ("SSEB"), each of which
`
`should have been ale1t to this kind of technical issue, also failed to recognize Microsoft's
`
`And, despite their visibility into both the technical and price
`
`proposals, the Source Selection Advisory Council ("SSAC") and the Source Selection Authority
`
`2
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 8 of 65
`
`("SSA") failed to recognize
`
`This DoD misevaluation turned the source
`
`selection dramatically in Microsoft's favor, transforming its
`
`DoD also overlooked Microsoft's
`
`•2 The demonstration, which was intended to detennine whether an offeror's
`
`proposed cloud solution could actually perform the RFP requirements, was comprised of four test
`
`scenarios. Microsoft
`
`scenarios during the second
`
`demonstration. Among these scenarios, Microsoft was required to
`
`Microsoft responded by
`
`During key phases
`
`-I
`
`-
`
`Microsoft responded by
`
`of these portions of the test, Microsoft
`
`-DoD recorded Microsoft's
`
`2 Tue Factor 8 evaluation relied most heavily on the second of two demonstrations because DoD's
`administration of the fust demonstration was plagued by technical difficulties.
`3
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 9 of 65
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`In multiple test scenarios, the DoD evaluato ,
`
`DoD inexplicably rated both offerors as Good and Low Risk for Factor 8.
`
`DoD reated False Paritv on Tactical Edge Solutions Despite A Superior AWS Offering
`
`As a t:mrd example, DoD's evaluation of each offeror's tactical edge solution under Factor
`
`3 reveals that the Agency's evaluation neutralized AWS's clear technical advantage. The RFP's
`
`Tactical Edge criteria were intended to judge the capabilities of a proposed cloud solution for the
`
`foll range of military operations in hostile environments, -including its portability for use by
`
`soldiers on the move. A WS offe ed
`
`·. Microsoft offered■
`
`. DoD nevertheless rated the two offerors technically equal for this requirement,
`
`and it rested this false equivalence on -
`
`it wrongly attributed to A WS • s solution.
`
`For example, DoD erroneously concluded that both A WS and Microsoft
`
`. That is trne for Microsoft, but it is not for A WS, which offered
`
`Indeed, DoD went so far as to criticize A WS for
`
`, including its
`
`. In
`
`this regard, the SSEB complained that
`
`4
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 10 of 65
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`DoD's
`
`criticism of A WS 's tactical edge solutions, while ignoring
`
`in Microsoft's offering, is impossible to explain based on the record, rationality, and
`
`fairness. Unless this Court steps in, the impact of this obviously invalid evaluation will be
`
`collateral damage on the warfighter and national security.
`
`DoD 's Evaluation is Fraught With Other Blatant and DispositiveErrors
`
`Any one of the foregoing errors, standing alone, would entitle A WS to relief. But they are
`
`only the tip of the iceberg. Clear and material evaluation errors pervade many of the other RFP
`
`criteria as well, including two discrepancies that further expose how DoD's misevaluation
`
`expunged A WS 's considerable technical advantage in cloud technology.
`
`First, under Factors 2 and 4, DoD minimized the importance of AWS's unparalleled
`
`hypeivisor solution, which uses a novel hardware-based approach to cloud security to ensure
`
`separation of each user's virtual trusted space. After the TEB and SSEB recognized AWS's
`
`"Nitro" hypervisor architecture as
`
`in the SSEB's wonls---the
`
`SSAC
`
`, but brushed aside its impo11ance for cloud
`
`security. In doing so, boweve , the SSAC put forth a rationale that both mns contrary to the RFP's
`
`cloud security requirements and ignores Nitro's unique capabilities for protecting against a broad
`
`range of security breaches. Second, DoD misread AWS's proposal as
`
`-
`
`-
`
`This evaluation en-ordeprivedAWS of the competitive advantage provided by i t s -
`
`third-paity offerings, by far the most. of any cloud provider.
`
`Whether the Comt considers each of these evaluation euors on their own or in totality,
`
`there should be little doubt that AWS is likely to prevail on the protest's merits. And that does not
`
`5
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 11 of 65
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`even include the errors which are still being developed through this bid protest, incluclin AWS's
`
`claims that are focused on President Tmmp's 1nterference in the procurement process.
`
`The Court also should be satisfied that the balance of harms weigh heavily in favor of
`
`injunctive relief. The harm to A WS compared to Microsoft is clear when viewed in light of A WS' s
`
`strong case on the merits. Wrongful deprivation of a contract is undeniably irreparable harm under
`
`the Court's precedent. Without an injunction, continued performance of the JEDI Contract could
`
`jeopardize the relief available to A WS if it prevails in the protest. In contrast, because Microsoft
`
`has no rightful claim to the JEDI Contract, it would not suffer any cognizable harm at all.
`
`DoD, in turn, claims that continued JEDI performance is necessary for national security,
`
`but its position does not reflect reality or withstand scrutiny. DoD and its agencies are satisfying
`
`their cloud computing requiremenhl today using a host of existing contracts. DoD can continue to
`
`meet its needs that way for the foreseeable future, just as it has for many years (including during
`
`the RFP process and the entire evaluation period). Contrary to the impression left by the
`
`Government, no user is waiting for the JEDI Contract to obtain cloud computing services.
`
`Indeed, Defendant's claim of urgency is inconsistent with its conduct in this bid protest(cid:173)
`
`DoD had already voluntarily agreed to stay substantive contract performance until Febmaiy 11,
`
`2020, and it was the Government that sought delay in its production of the clm.ini trative Record
`
`(which remains incomplete). Under these circumstances, DoD will suffer little or no harm by
`
`pausing performance until the Comi decides this protest. And, of course, national security is not
`
`fiu1hered by jamming through an inferior JEDI offerin .
`
`Finally, the public inte1·est, including the interests of both the nation's taxpayers and its
`
`warfighters, will benefit from an injunction. Prese1ving the status quo and the opp01tunity for a
`
`complete protest remedy, and making sure DoD selects the actual best value cloud solution for the
`
`6
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 12 of 65
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`critical JEDI Contract-in a rational and fair way-is clearly in the best interest of this country,
`
`its citizens, its soldiers, and national security. Accordina y, the Court should grant Plaintiff's
`
`motion for a temporary restraiuiug order and preliminary injunction in this case.
`
`QUESTION PRESENTED
`
`Is AWS entitled to a temporary re-straining order and preliminary injunction, based on its
`
`likelihood of success on the merits of its protest, the irreparable harm that would result without
`
`injw1ctive relief, the balance of hardships on the parties, and the public interest?
`
`STATEMENT OF THE CASE
`
`This bid protest challenges the award of the JEDI Contract to Microsoft based on DoD's
`
`flawed and unfair evaluation of proposals and the resulting invalid best value award decision.
`
`The JEDI RFP set forth nine evaluation factors: (1) Gate Evaluation Criteria; (2) Logical
`
`Isolation and Secw-e Data Transfer; (3) Tactical Edge; (4) Infonnation Security and Access
`
`Controls; (5) Application and Data Hosting and Portability; (6) Management Task Order ("TO")
`
`001; (7) Small Business Participation Approach; (8) Demonstration; and (9) Price. AR Tab 342
`
`at 151503-09. Factors 2, 3, and 5 included among their criteria the requirement thatDoD evaluate
`
`the offerors' proposed approaches to six price scenarios for "technical feasibility." Id. at 151495-
`
`96, 151498, 151505-06. Factor 9 required DoD to evaluate the offerors' price volumes for
`
`"accuracy and completeness," and to calculate each proposal's total evaluated price as the sum of
`
`tl1e proposed prices for the six price scenarios and twelve contract line items ("CLINs") for
`
`portability plans and program support. Id. at 151499-50, 151507-09. DoD was to award the JEDI
`
`Contract to the offeror whose proposal represents the best value. Id. at 151502.
`
`7
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 13 of 65
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`DoD ranked the impmtance of Factors 2-8 as follows (from most to least important):
`
`• Factor 2 (Logical Isolation and Secure Data Transfer);
`• Factor 3 (Tactical Edge);
`• Factor 4 (Information Secllfity and Access Controls);
`• Factor 5 (Application and Data Hosting and Portability);
`• Factor 8 (Demonstration),
`• Factor 6 (Management and TO 001); and
`• Factor 7 (Small Business Participation Approach).
`
`Id. at 151502. Factors 2-8, when combined, were more important than Factor 9 (Price). Id.
`
`However, Factor 9 was to become increasingly important where proposals were relatively equal
`
`as a technical matter. Id. For Factors 2-6 and 8, DoD was to assign ratings for technical aspects
`
`(Outstanding, Good, Acceptable, Marginal, and Unacceptable) and risk (Low, Moderate, High,
`
`Unacceptable).3 Id. at 151510-11. DoD was to eliminate from the competition any offeror who
`
`received a Marginal or Unacceptable rating, or a risk rating of High, under Factor 8. Id.
`
`The RFP specified DoD's evaluation would proceed in two phases. Id. at 151502-03.
`
`Phase One required DoD to evaluate each offeror under Factor 1, Gate Evaluation Criteria, to
`
`determine award eligibility. Id. at 151502. Phase Two required evaluation of award-eligible
`
`proposals under Factors 2-6 and 9. Id. at 151503. Based on this evaluation, DoD would make a
`
`competitive range determination and invite the remaining offerors to submit information
`
`responsive to Factor 7, and to demonstrate their cloud solutions under Factos 8. Id. DoD also
`
`would invite offerors within the competitive range to engage in discussions, as appropriate. Id.
`
`After discussions, DoD would request Final Proposal Revisions ("FPR"), and then evaluate FPRs
`
`under Factors 2-7 and 9. Id. The RFP stated DoD would deem offerors' FPRs to include the
`
`already conducted Factor 8 demonshation and evaluation. Id.
`
`3 The RFP stated DoD would assign similar ratings based on different criteria under Factor 7. Id.
`
`8
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 14 of 65
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`On October 25, 2019-a few months after President Trump's call for DoD to "look ... very
`
`closely'' into A WS 's proposal and Secretary of Defense Mark Esper's announcement that he would
`
`be "examining" the process-DoD announced it had awarded the JEDI Co trac to Microsoft. AR
`
`Tab 480 at 176608. In the Source Selection Decision Document ("SSDD"), the SSA indicated
`
`Microsoft represented the best value because it was technically superior and lower priced than
`
`A WS. AR Tab 459 at 176417. The SSA found that, although Microsoft and A WS were relatively
`
`equal under Factors 2, 3, 4, 7, and 8, Microsoft was "significantly superior to A WS" under Factors
`
`5 and 6.
`
`Id. at 176415-16. The SSA also noted Microsoft's total evaluated price of
`
`$678,517,417.38 was
`
`less thanAWS's total evaluated price of
`
`Id. at 176417; AR Tab 457 at 176405. Following a debriefing, and DoD's refusal to provide
`
`substantive responses to A WS 's questions, A WS filed this protest.
`
`ARGUMENT
`
`"This Court has broad authority to order injunctive relief in the context of bid protests."
`
`FMS Inv. Corp. v. United States, 136 Fed. CL 439, 442 (2018). In considering whether preliminai-y
`
`injunctive relief is appropriate, the Court weighs four factors: (1) the likelihood of plaintiff's
`
`success on the merits; (2) whether plaintiff will suffer irreparable harm absent injunctive relief;
`
`(3) the balance of hardships; and (4) the public interest. Id.; see also Serco, Inc. v. United States,
`
`101 Fed. CL 717, 720 (2011) (considering same factors for temporary restrai11ing order). "No
`
`single factor is dete1minative, and the weakness of the showing regarding one factor may be
`
`overborne by the strength of the others." FMS Inv. Corp., 136 Fed. Cl. at 442 ( quotations omitted);
`
`see also FMC Co,p. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). A WS satisfies all of the
`
`factors for immediate injunctive relief.
`
`9
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`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 15 of 65
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`I.
`
`AWS HAS SHOWN A LIKELIBOOD OF SUCCESS ON THE MERITS.
`
`To demonstrate likelihood of success on the merits, A WS must show that it is "more likely
`
`than not" to succeed on its cln.ims that DoD's actions were "arbitrary, capricious, an abuse of
`
`discretion, or otherwise not in accordance with law." 28 U.S.C. § 1491(b)(4) (citing 5 U.S.C.
`§ 706); Veterans Contracting Grp., Inc. v. United States, 133 Fed. Cl. 613,621 (2017). AWS need
`
`only raise "serious questions over [DoD] 's evaluation of proposals in this procurement" by, for
`
`example, "point[ing] to inconsistencies, omissions, unequal treabnent of offerors, and cherry(cid:173)
`
`picked data." FMS Inv. Corp., 136 Fed. Cl. at 443. Serious questions are raised where, as here,
`
`the agency has deviated from the solicitation's evaluation criteria and disparately evaluated
`
`proposals, thereby denying offerors a fair opportunity to compete for the contract. See e.g.,
`
`BayFirst Sols., LLC v. United States, 102 Fed. Cl. 677, 695 {2012) (holding protester showed
`
`success on merits where record demonstrated a "flawed source selection process").
`
`The JEDI source selection was compromised by DoD's unfair evaluation. Virtually every
`
`aspect of the evaluation was undermined by se1ious en-ors that
`
`while depriving A WS of credit for its compliant and far
`
`more capable offering. Even the currently incomplete AR makes clear that, but for DoD's
`
`disparate and unreasonable evaluation, A WS would have received the JEDI Contract. A WS is
`
`likely to succeed on the merits of its claims.
`
`A.
`
`Egregious Evaluation Errors with Respect to Factors 5, 8, and 3
`Unfairly Tilted the Source Selection in Microsoft's Favor.
`
`Among the many discrepancies in the AR, three errors stand out as particularly egregious,
`
`unfair, and determinative of the award decision: (1) DoD's evaluation of Microsoft's technical
`
`approach and price for
`
`under Factor 5, Price Scenario
`
`IO
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 16 of 65
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`6, which ignored Microsoft's explicit
`
`-
`
`and (3) DoD's evaluation of the tactical edge solutions under Factor 3, which created a
`
`perception of technical equality by unfairly criticizing AWS's objectively superior devices and
`
`Each of these errors had a material impact on the competitive standing of the two offerors.
`
`Standing alone, and certainly in totality, these evaluation defects dramatically tilted the source
`
`selection in Microsoft's favor. As a consequence, and at the expense of the nation's taxpayers, its
`
`warfighters, and the integrity of the procurement process, DoD made award to Microsoft--
`
`DoD Misevaluated Microsoft's Technical
`Scenario 6.
`
`pproach for Price
`
`DoD committed two critical errors in its evaluation of Microsoft's technical approach for
`
`Price Scenario 6. First, DoD determined that Microsoft proposed a technically feasible approach
`
`. DoD should have considered Microsoft's
`
`Each of these errors independently undermines DoD's source
`
`selection decision, and requires reevaluation of proposals and a new award decision.
`
`11
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`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 17 of 65
`
`a.
`
`Microsoft's Pro osal Was Ineligible for Award Because It
`
`DoD failed to recognize that Price Scenario 6 required
`
`RFP Amendment 0005 revised the instructions for all
`
`price scenarios to require offerors to "[a]ssume that all data in these price scenarios is highly
`
`accessible unless otherwise stated." AR Tab 302 at 64310 ( emphasis added). Following issuance
`
`of Amend.went 0005, an offerer submitted the following question to DoD:
`
`The Government has in oduced a new term "highly accessible"
`without definition. Could the government confirm that the term
`"highly accessible" is defined as either "Online Storage" or
`"Near.line Storage" as defined in Attachment J-8?
`
`AR Tab 304 at 64332. DoD responded: "The term 'Highly Accessible' is meant to be understood
`
`as online and replicated storage." Id. (emphasis added).
`
`The RFP defines Online storage as "[ s ]torage that is immediately accessible to applications
`
`without human inteivention." AR Tab 29 at 650. It defines Nearline storage as "[s]torage not
`
`immediately available, but can be brought online quickly without human intervention." Id.
`
`Although the RFP does not define "replicated storage," the term refers to the practice of storing
`
`data more than once so that there are multiple copies of the data. In other words, it is an additional
`
`requirement for backup rather than an alternative to Online storage. AR Tab 304 at 64332.
`
`Unlike some of the other price scenarios, Price Scenario 6 did not identify a specific storage
`
`type. For example, whereas Price Scenarios 3 and 4 reference Online, Nearline, and Oflline
`
`stornge, Price Scenario 6 does not reference those terms. AR Tab 302 at 64319-24, 64327-29.
`
`According to the RFP, this silence as to storage type meant off erors were to "[ a ]ssume that all data
`
`in [the] price scenario[] is highly accessible," which the RFP defined as Online storage. AR Tab
`
`304 at 64332 (emphasis added).
`
`12
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 18 of 65
`
`The Price Scenario 6 requirements, however, went further to make clear that the offerors
`
`were to propose Online storage: Price Scenario 6 repeatedly stated that data should be "highly
`
`available"-i.e., stored Online:
`
`The maintenance system converts each record into a 500 KB
`structured record, which is sent via API call to a highly available
`JEDI Cloud serverless function, which requires 2.5GB of RAM to
`run. Tb.is serverless function parses the incoming data for validity
`and stores it in a highly available JEDI Cloud NoSQL document(cid:173)
`based data store ....
`
`The flight operations system will push an event to a separate, highly
`available JEDI Cloud serverless function for each flight mission
`once that flight's operational data has been uploaded ....
`
`The results of this analysis consume 5 MB of data and are stored in
`a highly available simple NoSQL key-value based data store.
`
`AR Tab 302 at 64327 (emphasis added); AR Tab 304 at 64332.
`
`In the Price Scenario 6 evaluation, however, DoD overlooked Microsoft's proposal of
`
`First, DoD failed to recognize that,
`
`at 173315.
`
`See e.g., AR Tab 420 at 174754-57; AR Tab 430 at 175810.
`
`at 176363 (noting
`
`(emphasis added)).
`
`13
`
`AR Tab408
`
`AR Tab455
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 19 of 65
`
`Because it proposed
`
`, Microsoft did not satisfy the Price Scenario 6
`
`requirement . DoD should have found Microsoft's technical approach unfeasible, assigned a
`
`deficiency, and eliminated Microsoft from the competition.4 AR Tab 305 at 64355 (defining
`
`"deficiency" as a "material failure of a proposal to meet a Government requirement. .. "). Instead,
`
`DoD inexplicably did the opposite, finding Microsoft proposed a "technically feasible approach"
`
`AR Tab 332 at .151328; AR Tab 455 at 173363. There
`
`is no explanation in the record for this unreasonable conclusion.
`
`Second, DoD failed to recognize that Microsoft's technical narrative for Price Scenario 6
`
`175810),
`
`412 at 173697-99).5
`
`(AR Tab 420 at 174754-57; AR Tab 430 at
`
`(AR Tab
`
`. 6 Under a rational evaluation, the
`
`TEB would have deemed Microsoft's
`
`to be another deficiency and
`
`eliminated Microsoft from the competition.7 See AR Tab 305 at 64355.
`
`Microsoft's
`
`rovided a complete record, it is unclear whether DoD identified
`during discussions.
`
`5 In ontrast, AWS's technical narrative for Price Scenario 6 clearly indicated AWS was proposing
`. AR Tab 371 at 152866-67; AR Tab 455 at 176363.
`

`
`· ·
`
`· on, it is not even cle
`.
`.
`.
`
`7 Because the Government has produced an incomplete record, it also is unclear whether DoD
`identified this deficiency during discussions. See supra Footnote 4.
`
`14
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 20 of 65
`
`Third, DoD failed to recognize
`
`The SSAC-which
`
`considered both the technical and price evaluations when making a recommendation to the SSA(cid:173)
`
`should have noticed that Microsoft proposed
`
`Indeed, the SSAC scrutinized A WS's proposal in that
`
`manner when considering AWS's third-party marketplace offerings under Factor 5. See AR Tab
`
`457 at 176402 (noting the SSAC deviated from the TEB's findings because
`
`). Under a fair evaluation, the SSAC would have
`
`Had it done so, it would have recognized Microsoft's proposed
`
`technical approach-on its face---<loes not comply with the RFP. See AR Tab 305 at 64355.
`
`b.
`
`In addition to its flawed evaluation of Microsoft's technical approach to Price Scenario 6,
`
`DoD also failed to recognize that Microsoft's
`
`The RFP required DoD to calculate each offeror's total evaluated price for the JEDI
`
`Contract by combining the total price for each of the six price scenarios with the total p1ice for
`
`P011ability Plan, Po1iability Test, and Cloud Computing Program Office ("CCPO") Program
`
`Management Support CLINs. AR Tab 342 at 151508-09.
`
`15
`
`

`

`Case 1:19-cv-01796-PEC Document 151-1 Filed 02/10/20 Page 21 of 65
`
`WS- which proposed compliant
`
`for Price Scenario 6--had a total
`
`evaluated price of
`
`for the scenario. AR Tab 455 at 176363.
`
`In contrast,
`
`Microsoft- which p oposed
`
`-had a total evaluated price of
`
`for Price Scenario 6. Id. The PEB explained
`
`AR Tab 455 at 176363 (emphasis added). As the PEB obseived, Microsof
`
`See id.
`
`C1·itically, A WS 's total evaluated price for the JEDI Contract exceeded Microsoft's by
`
`approximately-.
`
`at 176417.
`
`16
`
`See AR Tab 459
`
`

`

`Case 1:19-cv

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