Case 1:19-cv-01796-PEC Document 177 Filed 03/12/20 Page 1 of 4
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`IN THE UNITED STATES COURT OF FEDERAL CLAIMS
`BID PROTEST
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`AMAZON WEB SERVICES, INC.,
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`Plaintiff,
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`v.
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`THE UNITED STATES,
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`Defendant,
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`and
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`MICROSOFT CORPORATION,
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`Intervenor-defendant.
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` No. 19-1796C
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`DEFENDANT’S MOTION FOR VOLUNTARY REMAND
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`Pursuant to Rule 52.2 of the Rules of the United States Court of Federal Claims,
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`defendant, the United States, respectfully requests that the Court remand this case to the
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`Department of Defense (DoD or agency) for 120 days to reconsider certain aspects of the
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`challenged agency decision. We are making this motion in response to the complaint and motion
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`for preliminary injunction filed by plaintiff, Amazon Web Services, Inc. (AWS), and this Court’s
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`opinion and order preliminarily enjoining performance of DoD’s Joint Enterprise Defense
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`Infrastructure (JEDI) contract, ECF No. 164. In email correspondence with the undersigned
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`counsel on March 12, 2020, counsel for AWS stated that AWS opposes this motion and will file
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`a response. In email correspondence with the undersigned counsel on March 12, 2020, counsel
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`for intervenor-defendant, Microsoft Corporation, stated that Microsoft does not oppose this
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`motion.
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`AWS filed this post-award bid protest challenging various aspects of the award decision
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`made by DoD in connection with the JEDI procurement, Solicitation No. HQ0034-18-R-0077.
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`Case 1:19-cv-01796-PEC Document 177 Filed 03/12/20 Page 2 of 4
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`On February 13, 2020, the Court granted AWS’s motion for a preliminary injunction, finding,
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`among other things, that AWS would likely be able to show that DoD erred in evaluating the
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`offerors’ proposals for Factor 5, Price Scenario 6. DoD wishes to reconsider its evaluation of the
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`technical aspects of Price Scenario 6, and intends to issue a solicitation amendment and to accept
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`limited proposal revisions addressing the offerors’ technical approach to that price scenario.
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`Proposal revisions on remand will be constrained by the storage solutions and unit prices
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`contained in offerors’ final proposal revisions (i.e. offerors would not be permitted to add storage
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`solutions not contained in their final proposal revisions, but may be permitted to adjust which
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`previously-proposed solutions would be utilized to address Price Scenario 6). DoD will re-
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`evaluate any revised proposals for Price Scenario 6 under both Factor 5 and Factor 9.
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`DoD also wishes to reconsider its evaluation of the offerors’ online marketplace offerings
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`and may conduct clarifications with the offerors relating to the availability of marketplace
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`offerings.
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`Finally, DoD wishes to reconsider its award decision in response to the other technical
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`challenges presented by AWS. DoD does not intend to conduct discussions with offerors or to
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`accept proposal revisions with respect to any aspect of the solicitation other than Price Scenario
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`6. At this time, DoD does not anticipate clarifications being necessary on issues other than the
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`offerors’ online marketplace offerings.
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` This Court has “the power to remand appropriate matters to any administrative or
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`executive body or official with such direction as it may deem proper and just.” 28 U.S.C.
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`§ 1491(a)(2); see also RCFC 52.2(a). A remand here is in the interests of justice because it will
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`provide the agency with an opportunity to reconsider the award decision at issue in light of
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`AWS’s allegations, this Court’s opinion, and any new information gathered during the proposed
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`Case 1:19-cv-01796-PEC Document 177 Filed 03/12/20 Page 3 of 4
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`remand. During the proposed remand, the agency potentially could make decisions that would
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`moot this action, in whole or in part, and may obviate the need for further litigation in this Court.
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`Therefore, we have requested a remand in good faith. See SKF USA Inc. v. United States, 254
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`F.3d 1022, 1028-30 (Fed. Cir. 2001) (reversing trial court’s denial of a remand motion as an
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`abuse of discretion, explaining: “even if there are no intervening events, the agency may request
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`a remand (without confessing error) in order to reconsider its previous position”). When, as in
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`this case, “the agency’s concern is substantial and legitimate, a remand is usually appropriate.”
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`Id. at 1029; see also Diversified Maint. Sys., Inc. v. United States, 74 Fed. Cl. 122, 127 (2006)
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`(noting that “[t]he circumstances found not to require remand have been rare indeed” and citing
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`cases).
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`Following the conclusion of the proposed remand proceeding, we propose that the parties
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`file a joint status report setting forth the positions of the parties regarding whether further
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`litigation is necessary and, if so, a proposed date for defendant to file the administrative record
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`associated with the remand proceedings, as well as a schedule for merits briefing, anticipated to
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`include cross-motions for judgment on the administrative record (MJARs). As DoD, on remand,
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`will be reconsidering the technical evaluations that AWS has challenged and will be
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`reconsidering its award decision, briefing MJARs at this point would be futile and would waste
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`the time and resources of the parties and the Court. Indeed, because reconsideration could
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`change DoD’s reasoning or result, a stay of proceedings in this case during the pendency of the
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`remand is appropriate.
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`For these reasons, we respectfully request that the Court (1) grant this motion for a
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`voluntary remand pursuant to RCFC 52.2, (2) remand this matter to DoD for reconsideration of
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`the award decision and any further administrative actions consistent with that reconsideration,
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`Case 1:19-cv-01796-PEC Document 177 Filed 03/12/20 Page 4 of 4
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`(3) authorize, but not require, DoD to consider any further information that the agency may
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`gather during the remand in accordance with any procedures that the agency may establish for
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`that purpose, (4) establish the initial duration of the remand at 120 days from the date of this
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`Court’s remand order, which may be extended upon request if necessary, and (5) order the
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`parties to file a joint status report within seven days following the conclusion of the remand
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`proceeding that sets forth the parties’ positions regarding whether further litigation is necessary,
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`and, if so, proposed dates for defendant to file the administrative record associated with the
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`remand proceedings and for further briefing.
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`OF COUNSEL:
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`MICHAEL G. ANDERSON
`BENJAMIN M. DILIBERTO
`Assistant General Counsel
`Washington Headquarters Service &
`Pentagon Force Protection Agency
`Office of General Counsel
`Department of Defense
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`TYLER J. MULLEN
`CCPO Legal Advisor
`Assistant General Counsel
`Defense Information Systems Agency
`Office of the General Counsel
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`March 12, 2020
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`Respectfully submitted,
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`JOSEPH H. HUNT
`Assistant Attorney General
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`ROBERT E. KIRSCHMAN, JR.
`Director
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`s/ Patricia M. McCarthy
`PATRICIA M. MCCARTHY
`Assistant Director
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`s/ Anthony F. Schiavetti
`ANTHONY F. SCHIAVETTI
`RETA BEZAK
`Trial Attorneys
`U.S. Department of Justice
`Civil Division
`Commercial Litigation Branch
`PO Box 480
`Ben Franklin Station
`Washington, D.C. 20044
`Tel: (202) 305-7572
`Fax: (202) 305-1571
`anthony.f.schiavetti@usdoj.gov
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`Attorneys for Defendant
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