The Pentagon is rejecting a key part of Amazon’s lawsuit over whether President Trump improperly intervened in a $10 billion cloud-computing contract.
A Department of Defense (DOD) spokeswoman said Amazon was “not correct” when it alleged that the Pentagon had already chosen Microsoft as the contract winner by the time Defense Secretary Mark Esper publicly recused himself from the process in October.
“The assertion is not correct,” Elissa Smith told The Hill on Wednesday. She said Esper recused himself on Oct. 7.
Ten days later, on Oct. 17, the department privately chose Microsoft over Amazon as the winner of the lucrative contract to create a cloud-computing infrastructure for the entire department.
The dispute comes amid a high-stakes legal battle over whether Trump improperly pressured the Pentagon to choose Microsoft as the winner of the Joint Enterprise Defense Infrastructure (JEDI) contract because he wanted to spurn Jeff Bezos, Amazon’s CEO and the owner of The Washington Post, which Trump views as biased against him. Amazon was widely considered to be the front-runner before Trump began interfering in the process over the summer.
The Amazon lawsuit before the U.S. Court of Federal Claims raises new questions about Esper’s decision to recuse himself. It notes that Esper’s recusal did not become public until Oct. 22, when the secretary said he was formally stepping away from the JEDI process because his son worked for IBM, which had bid on the JEDI contract but was no longer in the running.
At the time, the Pentagon did not indicate that Esper had already recused himself two weeks beforehand.
Further, Amazon is pushing back against Esper’s decision to order a review of the JEDI contract shortly after Trump publicly said he was asking the Pentagon to look “very closely” at the contract.
“I’m getting tremendous complaints about the contract with the Pentagon and with Amazon,” Trump told reporters in the Oval Office at the time. “They’re saying it wasn’t competitively bid.” Shortly after, Esper announced the DOD would review the contract, which had been in the works for years.
Over the summer, top Pentagon officials worked to emphasize that the review was an apolitical process mainly aimed at educating Esper, who was newly appointed at the time.
“The review initiated by Secretary Esper began with a general discussion regarding the Department’s strategy for cloud computing, its importance to the warfighter and a recap of the procurement history of the JEDI acquisition,” Smith, from the Pentagon, said on Wednesday.
“Before the review progressed to a discussion about the way forward, the Secretary determined that, though not legally required, he would recuse himself from that decisionmaking process,” she said. “This was done out of an abundance of caution, and to avoid any concerns regarding his impartiality in light of his adult son’s employment with a previously excluded offeror.”
Franklin Turner, a top government contracting lawyer and partner with the law firm McCarter & English, told The Hill on Wednesday that he didn’t think Esper’s decision to recuse himself was strange at the time. But, he said, it was “unusual” for the Pentagon to wait until three days before the contract was awarded to announce Esper’s recusal. The contract was announced publicly on Oct. 25, over a week after the decision was made internally at DOD.
Turner said the Pentagon made itself vulnerable to accusations of “impropriety” when it announced Esper’s recusal and almost immediately announced the award.
In its unprecedented lawsuit, Amazon is accusing Trump of engaging in “public and behind-the-scenes attacks” to steer the contract away from Amazon out of spite for his “perceived political enemy — Jeff Bezos.”