Partner Frank Murray was quoted in a Washington Business Journal article, “Will the Department of Defense cancel the massive JEDI contract? It’s one of a few options,” about what happens now that the Court of Federal Claims has denied motions to dismiss Amazon Web Service’s allegations that then-President Donald Trump interfered with its bid for the $10 billion Joint Enterprise Defense Initiative (JEDI) contract, which went to Microsoft Corp.
Short of depositions, the court could choose to include any potential communications between the White House and the DOD into evidence, Murray said, which may lay bare the previous administration’s view of the contract. “If the court allows AWS to pursue discovery, AWS would presumably seek production of those documents as part of its discovery efforts, but the government could continue to assert that executive privilege shields them from production,” he said. “If AWS contests the assertion of executive privilege, that would be another issue the court would have to decide.”
Another possible option, one which would allow the contract to move forward while the DOD pursues an agreement in court with AWS, seems unlikely, Murray said, because AWS has filed an injunction to prevent Microsoft from working on JEDI, and any change to the contract’s fiercely defended acquisition requirements would likely invite challenges from other competitors and further lengthen the court battle. “Materially changing the JEDI contract requirements or structure as part of a settlement could well trigger arguments by other interested vendors that DOD should have amended the solicitation and reopened it for competition,” he said. “As a practical matter, that concern would likely narrow the options for a negotiated resolution of the current protest.”