Amazon JEDI Lawsuit Filing

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

BID PROTEST
AMAZON WEB SERVICES, INC.,

Case No. 19-cv-01796
Plaintiff,
Judge Campbell-Smith
V.
UNITED STATES OF MERI A,

by and through the U.S. Department of Defense,
Defendant, FINAL REDACTED VERSION
and
1\IITCROSOFT CORPORATION,
Defendant-Intervenor.
PLAINTIFF AMAZON WEB SERVICES, INC.'S

- RENEWED MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
Pursuant to Rule 7 and Appendix C of the Rules of the Court of Federal Claims, Plaintiff
Amazon Web Services, Inc. ("AWS") respectfully requests that the Court uthorize
supplementation of the administrative record and grant discove1y in the above-captioned bid
protest.
As set forth more fully in the accompanying Memorandum of Points and Authorities in
Support, the Department of Defense ("DoD")'s award of the Joint Enterprise Defense
Infrastrnctme ("JEDI'') Contract suffers from myriad, highly mmsual anomalies and outright e1rnrs
that prejudiced A WS on nearly every evaluation factor. While these en-ors reveal a process that
was fatally flawed and highly unusual, the clear and lengthy public record of President Donald J.
Tnunp's jnterference in the JEDI procurement, and how President Trnmp's actions, comments,
and directives were communicated to, understood by, and ultimately affected DoD decision-
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makers, raise grave concerns that these e1rnrs and the ultimate award decision were based on bias
and bad faith. Without supplementation and discovery as requested in the accompanying
Memorandum of Points and Authorities in Sup ort, the Government's administrative record will
be incomplete and cannot be relied upon by the Court to evaluate AWS's allegations about bias
and bad faith in the JEDI source selection process. Accordingly, AWS respectfully requests the
Court GRANT this Motion.
Dated: January 17, 2020 Respectfully submitted,
By:
-Kev
- -in- -------------
P. Mullen
MORRISON & FOERSTER LLP
2000 Penn ylvania Ave., NW
Washington, DC 20006-1888
Telephone; 202.887 .1500
Facsimile: 202.887.0763
Attorney ofRecordfor Plaintiff

Amazon Web Services, Inc.
Of Counsel:
J.Alex Ward Andrew S. Tulumello

Daniel E. Chudd Daniel P. Chung
Sandeep N. Nandivada GIBSON, DUNN & CRUTCHER LLP
Caitlin A. Crujido 1050 Connecticut Ave., NW
Alissandra D. Young Washington, D.C. 20036-5306
2000 Pennsylvania Ave., NW Theodore J. Boutrous, Jr.
Washington, DC 20006-1888 Richard J. Doren
Elie D. Vandevelde
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Ave.
Los Angeles, CA 90071-3197
2
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Case 1:19-cv-01796-PEC Document 1 2 4 - 1 - Filed 01/17/20 Page 1 of 43

BID PROTEST

Plaintiff,
v.
UNITED STATES OF AMERIC

Defendant, FINAL REDACTED

VERSION
and
MICROSOFT CORPORATION,
Defendant-Intenrenor.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

- RENE\VED MOTION TO PPLEMEJ T THE ADMINISTRATIVE RECORD
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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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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 ofInterior,

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
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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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-
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-
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
procurement process, and AWS' s right to fully present its case for effective judicial review compel
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 AWS'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. President Trump Has Consistently Interfered with the Administration of

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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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
Fisher Indn tries' proposal failed to even meet specifications for the construction contract, after a
months-long campaign by Fisher Industries (including repeated television appearances on Fox
News targeted to President Trump), President Tromp stated that Fisher Industries had been
"recommended strongly" for the contract and "immediately brought up Fisher [Industries]" during
meetings with DoD officials regarding the border wall. See Appendix ("APP") 399; APP 413.
Soon after, the Army awarded a $400 million border wall construction contract to Fisher
Industries-a decision ti1at prompted the DoD Inspector General to investigate "the possibility of
inappropriate influence" on the contracting decision." APP 482.
Similarly President Trnmp reportedly intervened in the General Services Administration's
("GSA") solicitation of bids to move the Federal Bureau of Investigation's headquarters away
from the nearby Trump futemational Hotel in downtown Washington, D.C., to a new consolidated
campus in suburban Maryland or Virginia. Preparations for the move had been underway for
nearly a decade and GSA appeared poised to 1u10ounce its award. However, following several
meetings with the President and White House officials, GSA and the FBI announced that FBI
headquaI1ers would in fact remain at its current site, effectively eusw-.ing that the site would not be
redeveloped by potential competitors to the Trump International Hotel. While the GSA
Administrator had testified to Congress that the decision to remain at its current location "came
from the FBI," a GSA Inspector General investigation later concluded that this testimony was
"incomplete and may have left the misleading impression tliat she had no discussions with the
President or senior White House officials in the decision-making process about the project."
4
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APP 323. The GSA Inspector General's investigation also identified nonpublic emails that
referenced «what POTUS directed everyone to do" and "POTUS's orders" regarding the project.
APP 312. The Department of Justice fuspector General has launched its own investigation into
President Trnmp's interference in the FBI headquarters consolidation project. See APP507.
This pattern of interference extends beyond procurements, and the parallels are clear. In
another very public example, President Trump has gone to extraordinaiy lengths to attack CNN, a
news outlet that, like the Washington Post, President Trump perceives as hostile toward his
Administration and political views. First, he pushed to block a merger between CNN's parent
company (Time Warner) and AT&T, which before President Trump was elected, was well on its
way to obtaining clearance from the DOJ. See APP 269-71. 2 But soon after President Tmmp
entered office-and reportedly at President Trnmp's request-the Department of Justice reversed
its position, eventually filing suit to block the merger that it previously said it was prepared to
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
(D.D.C. 2018).
Second, in November 2018, the Trump White House and Secret Service abmptly revoked
the press credential of CNN's Chief White House c.orrespondent Jim Acosta just hours after a
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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contentious press conference, during which President Tnnnp called the reporter a "mde, terrible
person" and accused him of "report[ing] fake news." APP 344---45. The press credential was
restored only after CNN sued President Tnunp and other officials in his Admiuistration and a
federal court ordered the immediate restoration of Acosta's credential. See APP 36~4.
Rebuffed but undeterred by the courts, the President then called for a boycott of AT&T in attempt
to force CNN to change its reporting. See APP 418.
Finally, this bid protest also occurs against the background of impeachment- the third in
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-
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
military aid to Ukraine in its fight against Russian-backed separatists was critically important to
U.S. national security. see APP 499, President Trump nonetheless gave "[c]lear direction ... to
continue to hold" the congressionally mandated aid, reportedly in order to persuade the President
of Ukraine to investigate one of President Tnunp's political rivals, APP 483. And while President
Trump's subordinates initially resisted bis demands, they ultimately gave in and were forced to
develop dubious legal and post-hoc justifications for withholding the aid. See generally APP 484-
98. Government officials confinned they did not "fe[el] they could" stop the President, and those
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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The JEDI procurement took place in the midst of this pattern of Presidential interference,
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
from his dissatisfaction with the Washi11gto11 Post's coverage of him from before and since he
assumed office. See Compl. ,i,i 15-21, 84---86. Long before the inception of the JEDI source
selection process, President Trump regularly lashed out against the Washi11gton Post and over
time has extended his attacks to Mr. Bezos and Amazon, often conflating the three. For example,
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;
APP 002; APP 003. When then-candidate Tnunp made his foray into the political sphere, he made
clear that if he became President he would use his power to disadvantage Amazon and the
Washington Post: "[B]elieve me, ifl become president, oh do they have problems. They're going
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
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
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
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]?" Comp1. ,r 90; APP O19. 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. Comp1. ,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."
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 statements 5-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
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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 1 2 4 - 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 preparing the SSEB
Report, upon which the SSAC relied on "to provide an award recommendation to the SSA." AR
Tab 305 at 64344-45. In short, - had the ability to directly influence the award
7
During an October 29, 2019, Senate confirmation hearing, Senators Jack Reed and Angus
King-members of the Senate Armed Services Committee-asked Mr. Deasy about whether
the White House had tried to influence the JEDI award. APP 145-47; APP 180-81. When
Senator King asked .Mr. Deasy if he could "categorically assure us that there was no influence
by the White House or the President," :Mr. Deasy equivocated, explaining only that he did not
believe the "team members tlrnt actually took the source selection" were influenced by the
White House and noting that he did not share with the Secreta1y or CIO "any proprietary source
information." APP 180. Of course, no sharing of source selection information is necessmy if
the directive from above is to not award the contrnct to one offeror.
lI
recommendation of the SSAC to the SSA. And here, - participated personally in
meetings with the Secretary of Defense during the period that President Tmmp was directing him
to take a "hard look" at the JEDI procurement to fmtuer his personal and political bias against
Amazon.
The timing of - meetings with Secretary Esper aligns strikingly with the
execution of his sow-ce selection responsibilities. After participating in a meeting with Secretary
Esper on September 26, - prepared his Summary Report to the SSAC on September 27
(though the document was not signed until October 3). See AR Tab 453; AR Tab 456 at 176395.
And notably, while the majority ofthe technical factors had been evaluated by the respective factor
Technical Evaluation Boards between September 11 to 13, the TEB did not issue evaluations for
Factor 2 (the technical factor to be afforded the most weight under the solicitation criteria) for
Microsoft until September 26, and for A WS until September 2 1 - a f t e r - meetings with
Secretary Esper. AR Tabs 441-52. The SSEB Report reflected numerous errors which were only
compounded upon the later review and partial adoption of the Report by the SSAC. The SSEB
Chair briefed the SSAC on bis evaluation on September 30 (AR Tab 457 at 176396), and the SSAC
met from September 30 through October 3 before issuing the award recommendation to the SSA
on October 3 (id. at 176407).
C. The Unusual Circumstances Surrounding DoD's Award of the JEDI Contract to

Microsoft
Barely three m nth after President Trump called for DoD to "look ... very closely" into
complaints about AWS's proposal and Secreta1y Esper's announcement that he would be
"examining" the process, the SSA signed a Source Selection Decision Document on October 17,
2019, concluding that Microsoft's proposal represented the "best value" to the Govenunent.
Compl. ,r 186.
12
DoD waited more than one week before it publicly announced its awai·d decision. During
this interim period, DoD announced on October 22, 2019, that Secretary Esper was recusing
himself from the JEDI procurement process because of an alleged personal conflict of interest
relating to his son's preexisting employment with IBM-an offeror no longer in the mnning for
the JEDI award. Compl. if130, 187; APP 110-11. In the announcement, DoD further stated that
"[t]he JEDI procurement will continue to move to selection through the normal acquisition process
run by career acqnisition professionals." APP 110.
Secretaiy Esper's recusal was unusual and suspect for at least two reasons. First, Secretary
Esper had actually submitted a memorandum recusing himself from the review of the JEDI
acquisition on October 7, 2019-months after having followed President Trump's request to
investigate the JEDI procurement process, several days after the SSAC had issued its
recommendation to the SSA to award the contract to Microsoft, and after Secretaiy Esper had met
with procurement persom1el tasked with conducting the analyses undeJlying this recommendation.
See AR Tab 458. Notably, the recusal memorandum was hat1d-dated (suggesting it had been
prepared earlier but purposely not dated) and did not specify a reason for the recusal other than
"au abundance of caution and to avoid any concerns regarding my impartiality." Id. 8 Second,
even though the SSA had already signed the Source Selection Decision Document five days earlier
8
Secretaiy Esper's rectisal memorandmn is in stark contrast to the recusal memorandum filed
days earlier by another senior DoD official, Principal Deputy Assistance Secretruy of Defense,
Acquisition Enablers Stacy Cmmnings, who specified in her "Disqualification Statement"-
submitted after nearly two months of substantive euga ement on the JEDI procurement-that
she had AR Tab 454 at 176346.
Secreta1y E per licl not chara terize the ba J f r hi re 11 al as a 'covered relationship" with
IBM, likely because his adult son's employment wit11 IBM does not require recusal. See 18
U.S.C. § 208 (requiring government employees to refrain from paiticipating in matters in
which "he, his spouse, [or] minor child ... has a financial interest." (emphasis added)).
13
Filed 01/17/20 Page 18 of 43
(on October 17), by stating the procm m nt "will continue to move to selection," DoD's October
22 aanouncement regarding Secreta1y Esper' s recusal falsely suggested to the public that the award
decision had not yet been made.
On October 25, 2019, lJoD publicly announced its award-in fact, made more than a week
earlier-of the JEDI Contract to Microsoft, much to the shock of indushy analysts and experts
who had long considered AWS the frontmnner for the award. See Comp!. fl 31, 188.
D. AWS Files Bid Protest After DoD Fails to Respond to AWS's Debriefing Questions
in Violation of Procurement Law
DoD provided A WS a written debriefing that detailed the evaluation results. In response
to that debriefing, A WS timely submitted numerous detailed written deb1iefing questions pursuru1t
to 10 U.S.C. § 2305(b)(5), to better understand how DoD reached its award decision. This is a
fundamental element of the procurement process.9 But in blatant violation of applicable law, DoD
did not provide a substantive response to any of A WS 's debriefing questions. See Compl. fl 189-
91.
AWS filed its bid protest Complaint on November 22, 2019, to challenge DoD's decision
to award the JEDI Contract to Microsoft. A WS 's Complaint includes seven counts that challenge
the substance of DoD's decision (Counts 1-4 and 6-7) and alleges bias and bad faith (Count 5).
DoD produced the AR on January 3, 2020. Despite the Court's December 13, 2019 Order, which
required DoD to "include all materials developed and considered by the government in making its
9
See 10 U.S.C. § 2305(b)(5) (requiring debriefings to include, at a minimum, "reasonable
responses to relevant questions posed by the debriefed offeror as to whether source selection
procedures set forth in the solicitation, applicable regulations, and other applicable authorities
were followed by the agency; and [] au opportunity for a disappointed offeror to submit ...
additional questions related to the debriefing," and requiring DoD to "respond in writing to
ru1y additional question submitted ... within five business days after receipt of the question");
see also 48 C.F.R. § 15.506(a).
14
-
award decision," inch1ding "any informal documents reflecting factors considered in the agency's
decision-making process, such as email colll1llm1ications and coOllllun:ications made through Slack
channels and the like," (Dkt. 55 at 2), the AR contains vezy few such informal materials. Rather,
the Gov mroent included in the AR only a highly curated set of Slack communications from a
narrow time period from before AWS had even submitted its initial proposal. The government
produced nothing in tem1s of internal c01mnm1ications from the period in which DoD procurement
officials were evaluating the offerors' proposals. Similarly, the Government included only internal
email exchanges related to the Cont.meting Officer's Procurement Integrity Act/Organizational
Conflict of Interest investigations into DoD employees who later sought employment with A WS.
It produced none of the internal DoD emails related to the actual JEDI procurement decision.
LEGAL STANDARD
Toe AR hould be supplemented if the "omission of extra-record evidence precludes
effective judicial review." Axiom Res. Mgmt., Inc. v. United States, 564- F.3d 1374, 1380 (Fed.
Cir. 2009). Where a case involves an allegation of bias or bad faith, the "administrative record
frequently will not be complete or suffice to prove or disprove the allegation." Pitney Bowes Gov 't
Sols., Inc. v. United States, 93 Fed. Cl. 327, 332 (2010). 10 Because such "well grounded
allegations of bad faith and bias are serious allegations which cannot be rebutted within the
confines of the existing Administrative Record, supplementation is warranted to give Plaintiff an
opp0111inity to prove such allegations." L-3 Commc'ns Integrated ,Sys., L.P. v. United States, 91
Fed. Cl. 347, 354 (2010) (internal quotation marks and citation omitted); see also Dep't of
10
See also Beta A,w~vlics Int'!, 61 Fed. Cl. at 226 ("[R]are indeed would be the occasions when
evidence of bad faith will be placed in an administrative record."); Inf'l Res. Recovery', Inc. v.
United States, 61 Fed. CL 38, 41-42 (2004) ("Allegations of bias, prejudice and bad faith ...
cannot be subsumed within the record of a challenged award decision.").
15
Commercev. New York, 139 S. Ct. 2551, 2573-74 (2019) (affinning lowercom1's granling "extra-
record discovery" in administrative challenge to action by Trump Administration's Department of
Commerce, holding that extra-record discovery was "ultimately justified" upon a "strnng showing
of bad faith or improper behavior").
Accor ingly, "the record may be supplemented with (and through discovery a party may
seek) relevant infonnation that by its very nature would not be found in an agency record-such
as evidence of bad faith."' Orion Int'/ Techs. v. United States, 60 Fed. Cl. 338, 343 (2004); see
also Int'/ Res. Recovery, 61 Fed. CL at 42 (collecting cases) ("This Court and other fora resolving
bid protests have traditionally considered extra-record evidence in assessing alleged bias or bad
faith."). Such supplementation is especially important where there is an "appearance of bias,"
because a "full scale administrative record" can "dispel any doubts about the true nature of (the
agency's] action." AZX, Inc. v. Dep't ofTransp., 41 F.3d 1522, 1528 (D.C. Cir. 1994).
To supplement the AR, a bid pr testor need only make "allegations [that] appear to be
sufficiently well grounded." L-3 Commc'ns Integrated Sys., 91 Fed. Cl. at 355; see also Pitney
Bowes Gov 't Sols., 93 Fed. CL at 332 ("The test for supplementation is whether there are sufficient
well-grounded allegations of bias to suppo11 [supplementation]."). At the supplementation stage,
a protestor does not need to establish the "clear and convincing evidence of bad faith or bias" that
is necessary "to prevail on the merits." L-3 Commc'ns Integrated S:vs., 91 Fed. Cl. at 355.
Additionally, a protestor is "entitled to investigate bias" through discove1y-including document
requests, intenogat01ies, and depositions-and to supplement the AR where the protestor has
made a "credible allegation" that the decision-makers had a motivation to act in bad faith, or whose
conduct otl1e1wise is "hard to explain absent bad faith." Starry Assocs., Inc v. Un;Jed States , 125
Fed. Cl. 613 , 622- 23 (2015) ; L-3 Commc'ns I11tegmted S:vs., 91 Fed. Cl. at 355 . A party seeking
16
discovery need only demonstrate that the requested discovery "could lead to evidence which would
provide the level ofproofrequired to overcome the presumption ofregularity and good faith," and
"may rely on extra-record evidence" to support its request. Beta Anazvtics Int 'I, 61 Fed. Cl. at 226
(emphasis added).
ARGUMENT
The need to supplement the AR in this case is clear. A WS 's allegations of bad faith and
bias are more than "sufficiently well grounded" to warrant supplementation: they are based on
public statements that establish the President's unequivocal bias again t AWS and show how the
President took affinnative steps to instruct his subordinates-in both private and public fora-to
interfere with DoD's procurement decision. The allegations also establish how those instmctions
manifested in an award of the JEDI Contract to an objectively inferior competitor. The limited
documentation in the AR ( even though the AR is deficient) serves to bolster what the public record
alluded to: that the Source Selection Team was influenced by the President's bias, which was
colllllltmicated through the chain of command during a series of meetings that took place during
the crucial final proposal evaluation stage of the procurement.
But the public record and AR are not sufficient and cannot folly explain DoD's pervasive
and compounding evaluation e1rnrs, nor its shift toward Microsoft and against A WS d111ing the
eleventh hour of the evaluation pe1-iod. Indeed, because com1s have recognized that evidence
relating to bias and bad faith are unlikely to be included in the Government's AR (see supra, p. 15
n. l 0), A WS must be given "an oppo11unity to prove [its] allegations" through supplementation.
L-3 Commc '11s Integrated S:vs., 91 Fed. Cl. at 354. Moreover, in light of AWS's credible
allegations of bias and bad faith, A WS is "entitled to investigate [this] bias» through targeted
discove1y that will permit the foll and fair adjudication of these claims. Stany Assocs., 125 Fed.
Cl. at 622.
17
Case 1:19-cv-01796-PEC Document 124-1--* Filed 01/17/20 Page 22 of 43
A. AWS Has Made Well-Grounded Allegations of Bias and Bad Faith that Require
Supplementation of the Administrative Record
As an initial matter, the evidence of President Trump's animosity towards AWS-
iucluding in connection with the JEDI procurement process-is alone sufficient to wanant
supplementation of the AR. At this preliminary stage, to supplement the AR, AWS need not
"establish clear and convincing evidence of bad faith or bias to prevail on the merits." L-3
Commc'ns Integrated Sys., 91 Fed. CL at 355. Rather, a "lesser showing suffices-that the
allegations appem· to be sufficiently well grounded" and supported by a "reasonable factual
predicate." Id. (internal quotation marks omitted). AWS's allegations-including regarding the
specific, incontrovertible public examples of the Commander in Chief's bias and effot1s to
influence DoD's JEDI award-are well- ·on.oded examples of bias at the very highest levels of
authority within the Government and provide a strong factual predicate for A WS 's claims.
But the bias did not end with President Tmmp, and AWS's allegations further provide a
more-than-reasonable factual predicate for how his bias ultimately affected tl1e officials charged
with carrying out the procurement decision. The existing AR supports AWS's allegations of bias
and how that bias infected the procurement- for example, it links the "who" (Secretaiy Esper and
- the sole member of the SSEB), the "what" (discussions concerning the JEDI
procurement), the "where" (in a series of meetin s at the Pentagon), the "when" (following
President Trump's July 2019 directive that Secretary Esper review the JEDI acquisition based on
his anti-Amazon bias), and the "why" (the last minute erroneous evaluation detenninations by the
SSEB and SSAC can only be explained by the relaying of President Trnmp's directive to not award
the contract to A WS). "The presumption that government officials act in good faith ... is
rebuttable and not automatically accepted." Palantir USG, Inc. v. United States, 129 Fed. Cl. 218 ,
244-45 (2016). To overcome this presumption, a protester simply must allege facts establishing
18
Filed 01/17/20 Page 23 of 43
"a motivation for the Government employee in question to have acted in bad faith," or otheiwise
show "conduct that is hard to explain absent bad faith." Beta A11alytics Int'!, 61 Fed. Cl. at 226.
Here, A WS 'swell- rounded allegations and the :information gleaned from the existing AR do both.
1. The President,s Overt Bias I11fecled DoD Officials' Decisions and Motivated
Them to Act i11 Bad F aith.
Although A WS is not yet privy to all the specific internal maneuverings that took place
within DoD regai·ding the JEDI award, A WS has made specific and concrete allegations that
demonstrate the President's deep bias against Amazon. These include allegations about how the
President affected the senior political appointees overseeing DoD and its procurement functions
and how he pressmed DoD decision-makers at all levels to award the JEDI Contract to a competitor
whose proposal was inferior to A WS's proposal on the majority of the evaluation factors-all of
which show how DoD's award did not present the best value to the Government. See BnyF;1•st
Sols., LLC v. United States, 102 Fed. CL 677, 694 (2012) ("A tradeoff analysis based on
significantly flawed evaluation ratings is itself irrational.").
Com1s have recognized that motivation to act in bad faith exists where a superior "exert[s]
influence to guide the award," such as by "ma[king] known [a] preference for one offeror." Starry
Assocs., 125 Fed. CL at 616, 623; see also 48 C.F.R. § 3.401 (defining "improper influence" in
context of contingent fees as "a11y influence that induces or tends to induce a Government
employee or officer to give consideration or to act regarding a Government contract on any basis
other than the merits of the matter" (emphasis added)). For example, one federal court found
improper influence when civilian decision-makers were "made to know that a favorable decision
would be pleasing, and an unfavorable decision displeasing, to persons in ve1y high governmental
brackets." Jarrort v. Scrivener, 225 F. Supp. 827, 834 (D.D.C 1964). As that court aptly explained:
where "officials possess vast power to bestow or not to bestow benefits of various kinds upon
19
Filed 01/17/20 Page 24 of 43
subordinate employees," "the pressures were neve11heless real"--even if "[t]he pressures were not
crudely or indelicately exerted," "(t]here was no threat or command," and "[t]here was no promise
of reward." Id.
President Trnmp's open bias against Amazon is a textbook e.xample of such improper
influence. As recow1ted above and further in A WS 's Complaint, President Trump wields vast
power over DoD and its employees, and his overt and public outbursts against Mr. Bezos and
Amazon "made known" to all-including DoD officials and decision-makers in the SSA, SSAC,
and SSEB--"his preference" that A WS not secure the JEDI Contract. Starry Assocs., 125 Fed.
Cl. at 623. In these circumstances, even absent a specific "threat" or '"promise of reward," such
pressures are "nevertheless real." Jarratt, 225 F. Supp. at 834.
Moreover, President Tmmp exerted his influence by overtly intervening in DoD's
procurement functions on multiple occasions. In the tunmer of 2018, he ordered his then-
Secretary of Defense Jim Mattis to "screw Amazon" out of the JEDI Contract. Campi. ,Mi 19, 91;
APP 069. Unable to convince Secretary Mattis to do his bidding, President Trump replaced
Se retary Mattis just mouths later with Mark Esper, and declared during a July 2019 press
conference that he "w[ ould] be asking [DoD] to look at [tl1e JEDI Conh·act] very closely" because
of "tremendous complaints about the contract with the Pentagon and with Amazon." Compl.
,r,i 20, 95; APP 059. The President later retweeted a news video decrying the JEDI Contract as the
"Bezos Bailout," Compl. ,r 97; APP 062; APP 200, and his sou, Donald Tmrnp, Jr., suddenly began
calling Mr. Bezos "No Bid Bezos" on Twitter, Compl. ,r 96; APP 079. These public instrnctions
to Secretary Esper were likely repeated in off-the-record instructions, which could have occtUTed
20
Case 1:19-cv-01796-PEC Document 124-1 ~ * Filed 01/17/20 Page 25 of 43
at any one of the many meetings between President Trump and Secretary Esper in the summer and
early fall of2019. 11
The President's statements were not lost on Secretary Esper. His abmpt Aug1 t 1, 2019
decision-consistent with President Tmmp's instrnction to "look ... ve1y closely" into the JEDI
procurement-to reverse course and delay the award decision so that he could talce a "hard look"
at the JEDI award process also is compelling evidence that President Trump's bias actually and
irrevocably tainted the procurement process. See, e.g., L-3 Com me 'ns Integrated Sys., 9 l Fed. Cl
at 356 (holding that an unexplained "change[] [in] ratings" to affect a "selection decision" gives
rise to a "sufficiently well grounded" allegation of bias warranting supplementation); see also
Connecticut v. Dep 't ofIlllerior, 363 F. Supp. 3d 45, 64-65 (D.D.C. 2019) (acknowledging that a
"sudden[] re ers[ al of] course creates the plausible inference that political pressure may have
caused the agency to take action it was not otheiwise planning to take"); ATX, 41 F .3d at 1529 ("If
the decision maker were suddenly to reverse course or reach a weakly-supported delennination ...
we might infer that pressure did influence the fmal decision.").
Secreta1y Esper has since confinned his unwavering cornmibnent to carr ing out the
President's preferences, stating his be1ief that "the president is the commander in chief' who has
"every right, authority and privilege to do what he wants to do," and that he "absolutely" follows
the President's instructions. APP 474-75. TI1e inference is clear-Secretary Esper followed
11
See, e.g., APP 211-16 (identifying meetings occuning between President Trnmp and Secreta1y
Esper on July 23, July 25, August 1, September 3, September 13, and October 1, 2019);
APP 204 (reporting on meeting between Secretaiy Esper and President Tnnnp in Jm1e 2019);
APP 499 (repotiing on previously undisclosed meeting between Secretary Esper, President
Trnmp, and others); APP 229 (Secreta1y Esper October 8, 2019 tweet: "Tiumk you @POTUS
& @FLOTUS for hosting me & @DeptofDefense leadership for dinner yesterday at the
@WhiteHouse").
21
President Tmmp's clear directives by inte1vening at the eleventh hour to halt the award when it
appeared imminent that A WS was likely to win the JEDI Contract. hldeed, this Collli has
previously recognized that a credible allegation of bad faith arises when an "official step[s] in to
cancel a solicitation" when it appears the company the official favored would not win tlie award
Starry Assocs., 125 Fed. Cl. at 623.
The AR provides additional-but insufficient-detail on some of the opportunities
Secretary Esper had to ensure that hi1> orders from President Trump were carried out by the
procurement officials charged with evaluating Microsoft's and AWS's proposals. In a series of
meetings between when the President ordered Secretary Esper to "review" the acquisition in late
July 2019, through the crucial period involving evaluation of the offerors' final proposals in late
September 2019, Secretary Esper met on at least three occasions w i t l _ , the sole member
of the SSEB-the part of the Source Selection Team responsible for "summariz[ing] the findings
of' the Technical Evaluation Boards and interfacing between the evaluation boards and the SSAC
and the SSA. AR Tab 305 at 64345.
DoD's subsequent announcement of Secretary Esper's recusal from the JEDI procurement
process on October 22, 2019-ostensibly based on his adult son's employment with IBM, a fonner
offeror that was no longer in the rnnning for the award-only confitn1s the strong likelihood that
bias and bad faith man-ed the procurement process. Indeed, it was Secretary Esper himself who
ordered a delay in the JEDI award process in August 2019 so that he could take a "hard look" at
it-and then, only cifter he had ah·eady influenced the process did he recuse himself. See Compl.
1il 30, 187; APP 083; APP 110. The AR reveals that Secretaiy Esper recused himself stat1ing on
October 7-one week a f t e r - (with whom he had met on at least four separate occasions)
22
briefed the SSAC, and four days aft.er the SSAC recommended award of the contract to Microsoft.
See AR Tabs 456, 457, 458.
DoD's post hoc explanation that "(b]efore the review progressed to a discussion about the
way forward, the Secretary detennined that, though not legally required, he would recuse himself
from that decision[-]making process,,, raises fin1her concerns about the impropriety of the decision
-making process, where the ''way forward" had already been detennined by the time of the
Secretary's recusal. APP 187. And it remains highly unusual that DoD waited more than two
weeks to 8Illlounce the recusal--especially because DoD had already made its fonnal award
decision when the SSA signed the SSDD on October 17, and its public announcement of the award
was imminent. Additionally, DoD's official 8Illlouncement on October 22 regarding the recusal
stating that the "JEDI procurement will continue to move to selection through the normal
acquisition process," APP 110, is at best misleading, given that DoD had already internally made
its award decision five days earlier. The timing, circumstances, and announcement of Secretary
Esper's recusal raise more questions than they answer, and strongly suggest pretextual efforts by
DoD to attempt to cleanse the award process of taint.
President Trump's bias did not end with the high-level DoD officials that he appointed.
The actual evaluators and decision,-makers at DoD-the SSA, SSAC, SSEB, PEB, SBEB, and
TEB--could not have missed the umnistakable public instrnctions from their Commander in Chief
to not award the JEDI Contract to A WS. See Jarrott, 225 F. Supp. at 834 (decision-makers "could
not fail to be aware that they would incur administrative displeasure if they" made a decision
considered "unfavorabl[e]" by those in the high governmental brackets). Even though DoD has
claimed tl1at these individuals were "anonymized," "segregated," and "compaitmentalized," these
assurances are in fact no assurance at all-the President's directives and biases were broadcast to
23
the entire nation, including to evet}"one within DoD, through his official presidential statements
on Twitter, bis preferred platform for pronouncing policy. Moreover, the assurances were false,
as the SSEB Chairperson, _ , participated in meetings with the Secretary of Defense
during the same time p e r i o d - was responsible for evaluating AWS's and Microsoft's
proposals. Thus, even if President Trump and his senior DoD appointees did not know the
identities of the individuals tasked with evaluating the JEDI proposals (as DoD has claimed), there
is no question that the Commander in Chief's "preference for one offeror" was known to all, and
that this messag~and pressure--was exerted on decision-makers who then acted in accordance
with that message. See Starry Assocs., 125 Fed. CI. at 623.
This Court has ordered extra-record supplementation in the face of far less egregious
allegations of bad faith. For example, in Starry Associates, this Comi granted supplementation
where the bidder had alleged that a supe1visor who was not involved in the procurement ''had a
hand" in selecting the officials overseeing the procurement and "stepped in" to pr ent the award.
125 Fed. Cl. at 622-23. So too here. President Trnmp "had a hand" in selecting the leadership
overseeing the JEDI procurement process, such as Secretary Esp r and DoD CIO Dana Deasy.
And President Trnmp repeatedly "stepped in" with clear statements meant to interfere with DoD 's
procurement functions, including his con1nllu1d to his Secretary of Defense to "screw Amazon,"
APP 069, bis admission that he was "looking very seriously" into the award, APP 059, and his
request for DoD "to look at [the award] very closely" because of "tremendous complaints about
the contract with the Pentagon and with Amazon," id. A WS has more than sufficiently
demonstrated a well-grounded basis to supplement the record. See Beta Ana!vtics 111I '/, 61 Fed.
Cl. at 226.
24
Filed 01/17/20 Page 29 of 43
2. DoD's Award Decisio11 Ca1111ot Be Explained Absent Bad Faitlt.
Even if there were any doubt as to how bias and bad faith infected DoD's procurement
process, the munerous significant and obvious errors in DoD's evaluation process are further
indicative of bad faith, as these errors cannot be squared with a reasoned and lawful decision-
making process. Taint manifests itself in various fonns, but one obvious way is through shoddy
analysis calculated to reach a predetennined outcome. DOD's evaluation is replete with these
kinds of errors, which pervaded nearly all ofDoD's evaluation factors, including but not limited
to the following:
Factor 2 (Logical Isolation and Secure Data Transfer). Factor 2 required DoD to
evaluate the offerors' proposed approaches to logical isolation and secure data transfer, and was
afforded the most weight under the RFP evaluation criteria. The TEB
AR Tab 323 at 151129. The SSEB
AR Tab 456 at 176369. Because both offerors were on the secure
data transfer component, the SSEB concluded that
Id. However, the SSAC
- c o n c l u d e d the offi rors' solutions for Factor 2 were equally valued, both downplaying
the benefits o f -
- ) and enoneously concluding AR Tab 457 at
176400-01. The SSAC's reasoning on both issues was flatly wrong from a technical perspective,
ignored the stated RFP requirements, and invented issues out of whole cloth. The SSA adopted
SSAC's explanations without analysis. AR Tab 459 at 176416.
25
Factor 3 (Tactical Edge). Factor 3 required DoD to evaluate the portability and capability
of the offerors' tactical edge devices (i.e., devices designed to be used in environments with limited
connectivity and storage availability). In deciding that neither proposal was superior, DoD
incorrectly stated A WS had
See AR Tab 324 at 151166. See also Compl. ,i'tl 2, 53-55, 122-31.
. AR Tab 324 at
151175-76; AR Tab 330 at 151290. DoD also improperly assessed
AR Tab 324 at 151169, 151171; AR
Tab 330 at 151278-84.
Factor 5 (Application and Data Hosting and Portability). Factor 5 required DoD to
consider the offerors' approaches to application and data portability. In finding that Microsoft's
proposal was technically superior to AWS's proposal, the SSAC and SSA irrationally concluded
for the first time in October 20 l 9~ontrary to the earlier findings of the T E -
Compare AR
Tab 457 at 176402-03 , AR Tab 459 at 176416 (SSAC and SSA en-oneously concluding that ■
- " ) , 1vitl, AR Tab 309 at 67032 (
. Additionally, starting in August 2019, the evaluators began to
26
Case 1:19-cv-01796-PEC Document 124-1._* Filed 01/17/20 Page 31 of 43
inexplicably omit from their reports previously assessed strengths regarding AWS's -
See Compl. ,n[ 7, 59--62, 140--
52; see also AR Tab 212 at 58033, 58035.
Factor 6 (Information Security and Access Controls). Factor 6 required DoD to
evaluate the offerors' program management approach, including whether they could offer
unclassified services in three physical data centers. By relying on a prior and long superseded
version of AWS's proposal, DoD incorrectly concluded AWS
. See AR Tab 327 at 151216 {TEB
concluding
See Compl. ,r,r 3, 63--64, 153-67; see also AR Tab 367 at 152595. Additionally, in August 2019,
the TEB dramatically upgraded its rating of Microsoft's proposal from
- See AR Tab 456 at 176391-92; AR Tab 196 at 53811-82, 54018, 54469, 54472
Fnctor 8 (Demonstration). Factor 8 required Microsoft to pass fow: live demonstration
tests. -
- One of the tests required Microsoft to demonstrate its ability to scale se1vers
automatically-that is, to increase or decrease the number of se1vers available in response to the
changing volmne of requests being generated by the tests.
27
* * * * *
These numerous and compounding errors (among many others) created a false parity with
Microsoft's technical capabilities, despite AWS's objectively superior technology and proposal.
There is simply no plausible explanation--other than bad faith and bias-for botching a
procur ment of this magnitude and importance. Before and after the JEDI award announcement,
countless industry observers voiced concern that the award decision was impermissibly tainted by
President Trump's influence. 12 And as set forth above, members of Congress echoed the same
concerns throughout the procurement process. See supra, pp. 10-11 & n.7. Effective judicial
review requires a complete record of that bad faith.
B. The Court Should Supplement the Administrative Record with AWS's Evidence
Relating to Bias and Bad Faith
Supplementation is necessary for effective judicial review in this case because evidence of
President Trum.J)'S bias and its effect on DoD officials necessarily would not be-and in fact is
not--contained within DoD's record of the procmement The materials AWS seeks to add to the
AR are directly relevant to the allegations of bias and bad faith and necessary to the Court's
12
See, e.g., APP 205 (noting that President Trump's "involvement would be an unusual Oval
Office intervention"); APP 224 (repo1ting that President Trump's "inte1vention in a contract is
considered to be rare, bringing a political taint to a contest that by law should be decided based
on technical me1its and price alone").
28
independent detennination of how these improper influences affected the JEDI procurement
process. Specifically, A WS requests supplementation for the following categories of materials:
• President Trump's Tweets and Other Statements About Amazon, Mr. Bezos, and the
Washington Post (APP 001-072). These materials contain the direct statements made by
President Trump, the Commander in Chief of the Anned Forces, and are therefore highly
probative to show the origins of, motivation for, and existence of bias. These statements
include a directive President Trump gave to his then-Secretary of Defense Mattis to "screw
Amazon," APP 069; President Tmmp's tweets calling Mr. Bezos, Amazon, and the
Washington Post "the true Enemy of the People!," "Jeff Bozo," and the "Amazon no-tax
monopoly," APP 055; APP 052; APP 011; and statements that Amazon would "have
problems" ifhe "bec[a]me president," APP 005, that he "can't let [Mr. Bezos] get away"
with using "political power against {him]," APP 026, and that he would be looking ''very
seriously" into the JEDI Contract award process following receipt of complaints from
competitor about AWS, APP 059. These unfiltered statements-straight from the
Commander in Chief himself, who has a penchant for making policy via Twitter (see supra
p. 9 n.5)-are c1itically important to understanding the bias that penneated the procurement
process from the top of the chain of command.
• Statements from Persons AfflUoted with President Trump and DoD Ofjicillls Regarding
the JE,DJ Contract (APP 073-188). In addition to President Trump's own statements,
there are other statements made by persons affiliated with President Trump, as weU as other
high-level senior DoD officials, that show the effect of President Trump's animus against
Amazon on the proctrrement. These statements include Secretary Esper's August 2019
statements that he would be taking a "hard look" at the JEDI procurement because of what
he had "heard from folks in the administration,'' APP 083, and "from people from the
White House," APP 101, as well as Donald Tmrnp, Jr.'s tweets that the «corrupt
#BezosBailout is in trouble," APP 106, and that "the shady and potentially conupt
practices from @amazon and No Bid Bezos may come back to bite them,'' APP 079. As
with President Trump,s own statements, these statements reflect the President's influence
and c01rnborate the view that his personal animus towards Amazon tainted decision-
makers within DoD.
• Materials Relatiflg to tlte JEDI Contract that President Tmmp, His Affiliates, and DoD
Officials Saw (APP 189-202). The AR should also be supplemented with materials that
President Tnunp and others within his clministration reviewed relating to the JEDI
Contract, which are relevant to understanding the sources of the bias and bad faith, as well
as the motivations of the President another decision-makers. For instance, the AR should
be supplemented with the March 2018 New York Post advertisement, addressed to
President Tnllilp, which read: "President Trump: Your Defense Department is set to award
a no-bid, ten-year contract for all its IT infrastrncture to Administration-enemy JeffBezos'
Amazon," APP 194, as well as a Fox News video segment, retweeted by President Trump,
deriding the JEDI Contract as the "Bezos Bailout." APP 062; APP 200. Furthernmre, there
are multiple letters from members of Congress, sent to senior DoD officials, that raise
various concerns regarding the JEDI procurement process, thereby further conoborating
29
the well-founded allegations of impropriety in DoD's selection decision. See, e.g.,

APP 195; APP 197; APP 199; APP 201.
• Other Materials lllustrati11g the Fact a11d the Effect of President Trump's Bias and
Influence Witltirt DoD and 011 tl,e JEDI Award Decision (APP 203-229). As described
above, there are additional materials-including statements made by DoD officials and
spokespersons (e.g., APP 217}-that directly bear on, and are evidence ot: the facts
surrounding the bias and undue influence described in AWS's Complaint. These
documents also contain materials evidencing the multiple private meetings that took place
between President Trump and Secretary Esper (e.g., APP 211-16), which demonstrate a
further avenue through which the President's bias was c01nm1micated to DoD at the highest
levels of authority.
• Materials Illustrating the Fact and the Effect ofPresident Trump's Bias and Inj111ence
Throughout the Government and Administration (APP 230-507). The AR should be
supplemented with materials evidencing that President Tnnnp's intervention in the JEDI
procurement is part of a larger pattern of behavior demonstrating his willingness to abuse
his position for personal gain. As explained above, President Tnunp's previous
interferences in governmental processes involving perceived political enemies (the First
Amendment and antitrust cases involving CNN) and perceived political supporters (the
Navy SEAL) demonstrate that governmental decision-makers consider presidential
pressure in the execution of their duties, which is directly relevant to whether and to what
extent the DoD procurement officials charged with the evaluation and award of JEDI
responded to similar presidential pressure. See supra, pp. 3-7 (citing materials).
These materials are necessary for the Court's assessment of AWS's claims of bias and bad
faith, which must consider "all circumstances sunounding the procmement." Galen 1\1ed. Assocs.,
Inc. v. United States, 369 F.3d 1324, 1332 (Fed. Cir. 2004) (internal quotation marks omitted).13
The Court should accordingly supplement the AR to reflect these materials.
13
A WS need not establish, at this stage, all the bases for the admissibility of these materials.
Rather, "[a ]ny oral or documentary evidence may be received" into the AR as long as they are
"relevant, material, and tmrepetitious." L-3 Commc '11s Integrated .S:vs., 9 l Fed. Cl. at 356; see
also Veg-Mix, Inc. v. Dep 't ofAgriculture, 832 F.2d 601,606 (D.C. Cir. 1987) (same); see olso
New Dynamics Found. v. United States, 70 Fed. Cl. 782, 796-98 (2006) (pennitting
supplementation of administrative record with hearsay and non-authenticated documents). In
any event, the Government cannot seriously dispute the authenticity of these mate1ials-many
of which are online, publicly accessible, and self-authenticating 1mder the Federnl Rules of
Evidence (including, for example, as party-opponent admissions, official publications, and
judicially noticeable facts), or which DoD actually relied on in reaching its decision. To the
30
C. The Court Should Grant AWS Leave to Supplement the Administrative Record with
Targeted Discovery Regarding AWS's Bias and Undue Influence Claims
The publicly available documents speak for themselves and constitute credible and
concrete evidence of bias and bad faith. AWS's allegations are more than sufficient to meet the
legal thresholds to overcome the presumption of good faith and to obtain discovery. See supra,
pp. 18-28. But it would be narve to believe that what has been curated by the Government for
public consmnption, or the particular anti-Amazon sentiments President Trump happened to tweet,
are sufficient to paint a full picture of the bias and undue influence that affected the JEDI
procurement, or that such information represents the full extent of the President's communications
to DoD regarding the JEDI Contract. Similarly, the existing AR is insufficient to demonstrate
what transpired between Secretary Esper and the SS ~ B Chairperson, - during several
briefings, as well as the extent to w h i c h - discussions with Secretary Esper may have
impacted the drafting of the SSEB Report or his briefing of the SSAC, or otheIWise affected the
SSAC's recommendation to the SSA and the SSA's ultimate best value detenn.ination. Thus, to
effectively review A WS's allegations of bias and bad faith, this Com1 must know "what actually
transpired" within DoD as a result of the President's interference, lest an incomplete AR
"perpetuate e1rnr and impede and frustrate effective judicial review." AshBritt, Inc. v. United
States, 87 Fed. CL 344, 366 (2009); see also Int'/ Res. Recovery, 61 Fed'. Cl. at 41-42 (bid protests
involving "[a ]llegations of bias, prejudice and bad faith" "are not amenable to record review,"
since these allegations "necessarily cannot be subsumed within the record of a challenged award
decision" (internal quotation marks omitted)).
extent the Government contends there are specific materials in the Appendix that must be
<tdmissible to be eligible for supplementation, the Court should grant AWS leave to take
cliscove1y to establish a foundation for the admissibility of tl1e facts coutainecl therein.
31
Indeed, some of the clearest evidence of bias and bad faith to date-like President Tnunp's
statement to Secretary Mattis to "screw Amazon" out of the JEDI Contract, or his asking advisors
"how can I f"'*k with [Mr. Bezos]"-occurred behind closed doors, hidden from public view. See
APP 019; APP 069. That these incidents happened to surface in the public record through
reporting only underscores the significant likelihood there is additional evidence and testimony
directly bearing on issues of bias and bad faith that will only be uncovered through discovery. And
the limited infonnation in the AR prompts more questions than it answers. For example, the ''read
ahead" documentation for the July 29, 2019, meeting attended by b o t h - and Secretary
Esper included an "assumption" that DoD will "[h]ave to compete with a nanative on undue
pressure from third party entities." AR Tab 335 at 151364. Discovery is necessary to determine,
inter alia, whether this reference to "undue pressure" relates (as it appears) to President Trump's
public campaign against AWS and the effort of Amazon's competitors to influence the President
to wield his power to e1ism·e that A WS did not receive the JEDI Contract
To that end, A WS respectfully seeks targeted discovery to ensure that it has the opportunity
to uncover the facts necessa1y for this Court to conduct effective judicial review over A WS 's
claims of bias and bad faith. In paiiicular, A WS seeks leave to serve three narrow categories of
discovery at th.is time, which are highly probative of AWS 's allegations of bad faith and bias,
proportional to the needs of this case, and consistent with discovery that this Court has permitted
in other protests involving similar allegations. 14 Far from being speculative, AWS's discovery
14
See, e.g ., Starry Assocs. , 125 Fed. Cl. at 624 (granting supplementation through depositions in
light of "credible allegations of bias and spotty explanations of agency conduct"); Pitney
Bowes Gov 't Sols., 93 Fed. CL ;:it 334 (allowing supplementation through depositions w]1ere
plaintiff had made '" sufficiently well grounded"' allegations of bias); J C.N. Cons tr. Co. v .
United States, 60 Fed. Cl. 400, 404 n.8 (2004) (allowing depositions to explore allegations of
32
requests are targeted to elicit evidence relating to the core issues of bias and bad faith, and how
that bias and bad faith was propagated throughout DoD to result in an unsupportable award
decision-evidence that will be crncial if A WS is to have an "opportunity to prove [its]
allegations," as is its right L-3 Commc'ns Integrated Sys., 91 Fed. CJ. at 354. AdditionalJy, the
need for discovery is heightened given the JEDI Cloud Source Selection Plan's instruction to
"shred or place all working papers/rough drafts not required for retention ... in a bum bag for
immediate destruction" "[p]rior to award," AR Tab 114 at 6731, which s1rnngly suggests there is
additional, relevant information about the procurement process that is not reflected in the
documentary evidence, and which will only be uncovered through targeted depositions and
interrogatories.
1. Depositions (Exhibit A)15
W seeks leave to notice the depositions of seven individuals who were instrnmental in
the JEDI source selection and played pivotal roles in the ultimate JEDI Contract award. The
specific areas of inquiry for each proposed deposition are described in greater detail below:
• President Donald J. Tr11mp. President Trump bas well-documented personal animus

towards Mr. Bezos, Amazon, and the Washington Post. He specifically instructed then-
Sec1·etary Mattis to "screw Amazon" out of the JEDI Contract, and he has made other
public and private statements reflecting his desire that A WS not be awarded the contract.
President Trump has unique knowledge about his involvement in the bid process, including
private conversations with and instructions to others about the process and the award.
While other individuals can testify about specific conversations he had with them
bias); Palanlir, 129 Fed. Cl. at 240 (allowing document discovery and depositions to facilitate
effective review of allegations of bias and bad faith); Jnfore/ia11ce C01p. v. United States, 118
Fed. Cl. 744, 749-50 (2014) (pennitting discovery to investigate allegations of bias and bad
faith so that "the merits of [plaintiff's] claim may be tested on a complete record").
15
To the extent DoD is unable or tmwilling to accept AWS's Notice of Depositions to ensure the
appearance of these individuals for deposition, AWS seeks leave to serve, pursuant to Rule 30
of the Rules of the United States Court of Federal Claims, subpoenas that are consistent with
the attached proposed deposition notices.
33
individually, President Tnunp is the only individual who can testify about the totality of
his conversations and the overall message he conveyed. Moreover, President Trump has
unique knowledge about whether he had other, previously undisclosed conversations with
individuals not previously identified, and wl10 therefore do not appear on the deposition
list. A WS seeks leave to depose President Tnunp about conversations or other
involvement he had regarding the JEDI bid process or efforts to harm Amazon or A WS. 16
• Former Secretary of Defense James Matti . Secretary Mattis has highly relevant, first-
hand knowledge about President Trump's animus towards Mr. Bezos and Amazon, and the
effort President Trump took to pressure DoD officials-including Secretary Mattis
himself:- into altering the JEDI award decision. Additionally, because Secretary Mattis
served as Secretary of Defense during the inception of the JEDI project and solicitation, he
has knowledge about the drafting and launch of the JEDI Contract solicitation process, and
internal DoD discussions regarding A WS and other competitors. A WS seeks leave to
depose Secretary Mattis about conversations or other involvement he had regarding the
JEDI bid process or presidential efforts to influence the procurement.
• Secretory of Defense Mark E i_Per. Secretary Esper's public statements indicate that be
had been involved in discussions with President Trump, other White House officials, and
politicians regarding the JEDI procurement process. Additionally, Secretary Esper was the
individual who intervened in the JEDI award process so that he could conduct an
"examination" at President Trump's behest, and A WS has identified several facts
surrounding the unusual tiniing of his recusal in Odober 2019. AWS seeks leave to depose
Secretary Esper about the facts regarding his involvement in the review of the JEDI
procurement process, his interactions with President Trump and other White House
officials, his interactions with members of the Source Selection Team, and the
circumstances suuounding his decision to recuse himself from the JEDI source selection
process.
• DoD Cllief Information Officer Dana Deasy. Mr. Deasy, as DoD CIO, has indicated that
he has intimate ktJowledge about the JEDI Contract and procurement process, both from a
technical and procedural perspective, including the supposed measures that DoD took to
insulate the decision-makers from outside influence. A WS seeks leave to depose
Mr. Deasy about his involvement in the JEDI procmement process, the steps that DoD took
to ensure a lawful and llllhiased procurement decision, and his interactions with President
Tromp, who had nominated Mr. Deasy to his position in June 2019.
16
A WS ackt1owledges that there are sensitivities with deposing President Tnunp. While it is
clear that a President can be subject to judicial process while in office, see Cli11ton v. Jones,
520 U.S. 681, 694--95, 703-06 (1997), AWS will work with the Com1 and the Department of
Justice to develop appropriate protocols and safeguards, including to evaluate alternative
methods, to ensure that the testimony is procured in a manner sensitive to the unique position
of the Executive Office of the President.
34
Case 1:19-cv-01796-PEC Document 124-1,_* Filed 01/17/20 Page 39 of 43
• Source Selection Authority, : the

SSA, executed the October 17 2019 Source Se ecllou Dec1s1on Documenl whic awarded
the JEDI Contract to Microsoft As the person charged with selecting Microsoft as the
awardee of tl1e JEDI Contract, and who drafted the Source Selection Decision Document,
- has singular know]edge of the circumstances of the final award decision to
~ v e u that the Sm.u-ce Selection Decision Document would obviously not
include a n ~ 1 e n t s about bias, bad faith, or undue influence, A WS seeks leave
to depose - regarding the circumstances surrounding her decision to award
the JEDI ontrnct to Microsoft including any additional factors that influenced the process
that are not discussed in the Source Selection Decision Document.
• Chairpersons ofthe Source Selection Advisory Co11ncil and Source Selection Evaluation
Board. The chajrpersons of the S A aud S EB,
- have unique insight into the evaluation and ana yses o1 e JEDI propos w c1
fueSSA considered in reachiu its decision. Depositions of these individuals will clarify
the recommendations the SSAC and SSEB ga e to the SSA pei1aining to the A WS and
Microsoft proposals, and illuminate how bias and bad faith influenced the evaluators'
analyses and final decision. Additionally, AWS seeks leave to depose these chairpersons
about how Prnsident Trump's biased statements against AWS may have affected or
influenced their decision-making, and the extent to which discussions with senior DoD
officials relayed President Trump's directives.
2. Interrogatories (Exhibit B)
In addition to depositions, supplementation of the record would be facilitated through nine
targeted interrogatories, whlch will ensure A WS has a written explanation from DoD for some of
the most troubling aspects of the JEDI procurement process, whlch give rise to A WS 's allegations
of bad faith and bias. As noted above, A WS had requested such written responses from DoD
through its written debriefing questions, which AWS submitted pursuant to 10 U.S.C.
§ 2305(b)(5). See supra, p. 14. DoD has refused to provide any substantive response to these
questions, making court-ordered discove1y all the more appropriate. Requiring DoD to provide
written responses now will aid the pa11ies and the Court in narrowing the issues, ensuring the
record is adequately developed with respect to the key factual issues, and thus facilitate an efficient
and effective adjudication of A WS's bias and bad faith claims. A WS accordingly seeks leave to
propound the following nine intenogatories:
35
Case 1:19-cv-01796-PEC Document 124-11alli* Filed 01/17/20 Page 40 of 43
• Interrogatories 1, 2, and 3. Interr gatories 1, 2, and 3 request targeted responses regarding

Secretary Esper' s participation and recusal in the JEDI source selection process. Secretary
Esper's admission that he had ordered an examination of the JEDI award based on
discussions with the White Hous~oupled with President Trnmp's statement that he was
''very closely looking" into the JEDI award--confum Secretary Esper's central role in
injecting President Trump's bias against AWS into DoD's decision-making process. His
meetings with a member of the Source Selection Team during final proposal evaluations
demonstrate the opportunities for him to communicate that bias and directive to those most
deeply involved in the source selection decision.
• lnte"ogotory 4. Interrogatory 4 as.ks for infonnation regarding the selection and

composition of the TEB, PEB, SSEB, SSAC, and SSA, who are the individuals charged
with evaluating proposals and selecting the awardee of the JEDI Contract. Given the
amount of discretion that they wielded over the evaluations and award decision, it is
critically important that AWS understand how the members of the SST were selected (and
any potential ways in which their appointment was influenced by pressure from President
Trump a11d/or senior DoD officials).
• lnlerrogalory 5 and 6. Interrogatories 5 and 6 ask DoD to identify facts regarding the
SSA's award of the JEDI Contract, including whetl1er and why the SSA modified the
recommendations of the SSAC and/or SSEB, and any relevant facts occmring between
wl1en the SSA executed the Source Selection Decision Document and when DoD publicly
announced the award decision. Because A WS 's claims focus on how bias and bad faith
had an tmdue influence on the evaluations, recollllllendations, and award decision of
evaluators and decision-makers, understanding how these .individuals reached their
conclusions are critical factual issues that merit discove1y.
• Inte"ogatories 7, 8, a11d 9. Interrogatories 7, 8, and 9 seek facts that directly bear 011
AWS's claims of bias and bad faith. Inte.rrogatories 7 and 8 relate to the mechanisms of
interactions between DoD and President Trump, which will reflect how President Trump's
bias was propagated throughout DoD. And Interrogatory 9 is tailored to elicit specific
interactions between DoD and other JEDI solicitation offerers that relate to Mr. Bezos,
Amazon, A WS, and President Trump, which will develop evidence of the ways in which
AWS's competitors-like Oracle--leveraged President Tmmp's known bias against
Amazon to influence the decision-making process.
3. Requests for Prod11ctio11 (Exhibit C)
Finally, the Court's adjudication of AWS's bias and bad faith claims requrres
supplementation of the AR through targeted requests for production that are calculated to yield
documents relating to the key issues regarding bias and bad faith. In addition to requesting
documents directly concerning the bias and bad faith that was prevalent at the highest levels of the
36
Administration, these requests focus on uncovering specific evidence about how DoD decision-
makers' assessment of A WS and other proposals changed over time in response to external
pressures from their leadership, including the President.
Because it is neither reasonable nor logical to expect DoD to have included such documents
in the AR (and it did not) (see supra, p. 15 n.10), and because such documents are non-public and
created, used, and circulated only within DoD (and thus inaccessible to A WS), the only way that
these materials may be surfaced and considered by the Court is through docuweat production.
Specifically, A WS seeks leave to propound the following ten requests for production on the topics
listed below. 17
• Requests 1 and Z. Requests 1 and 2 seek critically important documents to -undeJstand

how bias and bad faith influenced the DoD's evaluation and decision-making procurement
functions. fa particular, production of interim drafts and working documents (which the
Government was required to, but did not, provide in the AR) will reveal the candid,
contemporaneous opinions of decision-makers regarding A WS 'sand Microsoft's offerings
and demonstrations, and show how those assessments evolved over time in response to
outside pressures and influences. To the extent such opinions contrast from DoD's final
decision reports, these differences directly demonstrate how bias and bad faith altered the
opinions of those directly valuating the proposals.
• Requests 3 and 4. Requests 3 and 4 seek documents bearing on how external bias and
pressure affected the SSA, SSAC, and SSEB. fa particular, Request 3 seeks all external
comnmnicafions that m embers of the SSA, SSAC, and SSEB had regarding tl1e JEDI
Contract. By seeking external-facing commturications, this request is tailored to identify
the sources of external pressure that may have affected the SSA, SSAC, and SSEB's
internal deliberations. Request 4 seeks conununications involving SSA, SSAC, and SSEB
members that discuss President Trump. These documents will be relevant because they
17
A WS drafted its proposed requests to specifically target evidence of bias and bad faith, to
minimize any burden and dismption to DoD, and to ensure that these proceedings can be
completed in as expeditious a manner as possible. Cf Stany Assocs., 125 Fed. Cl. at 623
( acknowledging that discovery may be "necessary for the court to resolve the issues presented"
regarding "allegations of bias and unexplained agency action"). AWS is willing to work with
DoD on ways to accomplish those objectives, including, for example, stipulating to a set of
custodians and search terms to ensure DoD can respond .in a tin1ely manner and with reasonable
eff01t.
37
Filed 01/17/20 Page 42 of 43
will demonstrate the evaluators' views and reactions to President Trump, including his
statements regarding Mr. Bezos, A WS, Amazon, and the JEDI Contract.
• Request 5. Request 5 seeks documents relating to DoD's internal reviews, evaluations,

and analyses of potential conflicts of interest regarding JEDI (e.g., those of Secretary Esper
and Principal Deputy Assistance Secretary Cummings). Given the numerous reports and
concerns, including from senior members of Congress, that the JEDI Contract procurement
process was biased, DoD 's internal docttments discussing these alleged conflicts of interest
are clearly relevant to assessing whether there actually existed any bias within DoD relating
to the award.
• Requests 6, 7, 8, and 9. Requests 6, 7, 8, and 9 call for production of communications with

President Trump regarding the JEDI Contract and Mr. Bezos, Amazon, A WS, and the
Washington Post. Because AWS's allegations of bias and bad faith originate from
President Tmmp, his statements and communications regarding the JEDI Contract are
highly probative of bias and will establish how his bias was communicated to those within
DoD.
• Request 10. Request 10 calls for docwnents within DoD that relate to highly specific
phrases (e.g., "screw Amazon," "Bezos Bailout," and "No Bid Bezos") that, on their face,
embody bias and bad faith against A WS, and are therefore inherently probative of A WS 's
bias and bad faith allegations in this case.
CONCLUSION
A WS 's allegations of bad faith and bias are credible and well supported, and these claims
cannot be fairly considered and evaluated without supplementation. In order to achieve a full and
fair evaluation of this bid protest, the Court should grant AWS's Motion to Supplement the
Administrative Record with the materials in the attached Appendix. The Court also should grant
A WS leave to take targeted discovery that will allow a complete presentation A WS 's claims of
bad faith and bias.
38
Dated: January 17, 2020 Respectfully submitted,
By:
-Kevin
--- ------------
P. Mullen
2000 Pennsylvania Ave., NW
Telephone: 202.887.1500
Facsimile: 202.887.0763
Attorney of Recordfor Plaintiff

Of Counsel:
J. Alex Ward Andrew S. Tulumello

Sandeep N. Nanclivada GIBSON, DUNN & CRUTCHER LLP
Caitlin A. rujido 1050 Connecticut Ave., NW
Alissandra D. Yowig Washington, D.C. 20036-5306
2000 Pennsylvania Ave., NW Theodore J. Boutrous, Jr.
Eric D. Vandevelde
39
-
~
-*
EXHIBIT A
FINAL REDACTED
VERSION
Case 1:19-cv-01796-PEC Document 124-3 1 -*

BID PROTEST

Plaintiff,
V.
UNITED STATES OF A.NIERI A,

REDACTED VERSION
Defendant,
and
Defendant-Interve11or.

NOTICE OF DEPOSITIONS
PLEASE TAKE NOTICE that, pursuant to Rule 30 of the Rules of the Comi of Federal
Claims and this Court's order(s), Plaintiff Amazon Web Services, hie. ("AWS") shall take the
depositions of the following individuals at the office of Gibson, Dunn & Crutcher LLP,
1050 Connecticut Avenue, N.W., Washington, D.C. 20036-5306, at dates and times to be mutually
agreed upon by the patties. The depositions will be taken before a person authorized by law to
ad.1.uin.ister oaths under Rule 28. The deposition shall be recorded both stenographically and by
videotape, and LiveNote may be used. If the deposition cannot be completed in one day, it will
continue from day to day until completed. A WS serves this Notice of Depositions without waiver
of its right to notice additional depositions and/or topics of examim1tion as authorized by the
applicable rnles and the Comt's order(s).

1
Person Topic(s) for Examination
Donald J. Trump, President of a. President Trump's involvement in any aspect of the

the United States 1 JEDI program, contract, solicitation, and/or award.
b. President Tnunp's statements regarding:
1. A WS, Amazon.com, Inc. ("Amazon"), Jeffrey P.

Bezos, and/or the Washington Post;
2. The JEDI program, contract, solicitation, and/or

award.
c. President Trump's communications and interactions

with Oracle, Microsoft, or any other offeror for the
Joint Enterprise Defense lnfrastmcture ("JEDI")
solicitation regarding the JEDI program, contract,
solicitation, and/or award, AWS, Amazon, Jeffrey P.
Bezos, and/or the Washi11gto11 Post.
d. President Trump's communications and interactions

with fonuer Secretary of Defense Jatnes Mattis
regarding:

award;
2. AWS, Amazon, Jeffrey P. Bezos, and/or the

Washington Post;
3. The tenuination and/or resignation of Secretary

Mattis.
e. President Tmrnp's communications and internctions

with Secreta1y of Defense Mruk Esper regarding:
1. The appointment of Mark Esper as Secretaiyr of

Defense;
2. The JEDI program, contract, solicitation, ancVor
1
A WS recognizes that a deposition of a sitting President of the United States presents unique
circumstances and will work with the Court and the Depmtment of Justice to develop
appropriate p1:otocols and safeguards, including to evaluate possible alternative methods, to
ensure that the testimony is procured in a manner sensitive to the unique position of the
Executive Office of the President.
2
Per on Topic(s) for E nminatioo
award;

Washington Post.
f. President Trump's communications and interactions

with Department of Defense Chieflnfom1ation Officer
Dana Deasy regarding:
1. The appointmeut of Dana Deasy as Chief

Information Officer;

award;

Washington Post.
g. President Trump's communications and interactions

with:
1. The Source Selection Authority,
2. The Chanperson and sole member of the Source

Selection Evaluation B o a r d , - ·
3. The Chanperson and/or any members of the Source

Selection Advisory Council;
4. Any other member of the Source Selection Team.
h. Any documents or information in the administrative

record, the Appendix, or iu subsequent discovery
production(s) that were drafted, edited, received,
reviewed, sent, signed, or othe1wise authorized by
President Tmmp.
3
Person Topic(· for E amination
Hon. James Mattis, F01mer a. Secretary Mattis' s involvement in any aspect of the
Secreta1y of Defense JEDI program, contract, solicitation, and/or award.
b. Secretary Mattis's commWlications and interactions

with President Donald Tnunp, President Trump's
advisors, White House officials, and/or any individuals
employed by or acting on behalf of President Tnunp,
his advisors, or White House officials regarding the
JEDI program, contract, solicitation, and/or award,
A WS, Amazon, Jeffrey P. Bezos, and/or the
Washington Post.
c. Secretaiy Mattis's awareness and consideration of any

statements by President Trump regarding A WS,
Amazon, Jeffrey P. Bezos, the Washington Post, ancVor
the JEDI program, contract, solicitation, and/or award.
d. Secretary Mattis's communications and interactions

with Oracle, Microsoft, and/or any other offeror for the
JEDI solicitation.
e. The resignation and/or termination of Secretaiy Mattis

from his appointment as Secretary of Defense.
f. Any documents or information in the administrative

record, the Appendix, or in subsequent discove1y
reviewed, sent, signed, or othe1wise authorized by
Secreta1y Mattis.
g. Any documents or infonnation not in the administrative

record that were reviewed or considered by Secretary
Mattis or DoD in connection with the JEDI program,
contract, solicitation, and/or award.
4
Hon. Mark T. Esper, Secretary a. Secretary Esper's involvement in any aspect of the
ofDefense JEDI program, contract, solicitation, and/or award.
b. Secretary Esper's communications and interactions

with President Trump, President Tnunp's advisors,
White House officials, and/or any individuals
employed by or a ting on behalf of President Tnunp,
his advisors, or White House officials regarding the
JEDI program, contract, solicitation, and/or award,
AWS, Amazon, Jeffrey P. Bezos, and/or the
Washington Post.
c. Secreta1y Esper's awareness and consideration of any

Amazon, Mr. Bezos, the Washington Post, and/or the
JEDI program, contract, solicitation, and/or award.
d. Secretary Esper's August 2019 decision to conduct an

examination of the JEDI program, contract, solicitation,
and/or award.
e. Secretary Esper's communications aud interactions

with Oracle, Microsoft, and/or any other offeror for the
JEDI solicitation.
f. Secretary Esper's comnnmications and interactions

with any member of the Source Selection T earn.
g. Secreta1y Esper's decision to recuse himself from the

JEDI proci.treruent process.
h. Any documents or info1mation in the administrative

record, the Appendix, or in subsequent discovery
reviewed, sent, signed, or otheiwise authorized by
Secreta1y Esper.
1. Any docmnents or infom1ation not in the administrative

record that were reviewed or considered by Secretary
Esper or DoD in connection with the JEDI program,
J. Secretaiy Esper's interactions with, relationships with,

and opinions regarding Mr. Bezos, Amazon, A WS,
and/or the Washington Post.
5
Case 1:19-cv-01796-PEC Document 124-3 i-*
Person Topic( ) for Examination
Mr. Dana Deasy, Chief a. Mr. Deasy's involvement in any aspect of the JEDI
Infonnation Officer, Depa1iment program, contract, solicitation, and/or award.
of Defense
b. Mr. Deasy's October 29, 2019, Senate confirmation
hearing statements regarding the JEDI program,
c. Mr. Deasy's collllllunications and interactions with

President Tllllilp, President Tmmp's advisors, White
House officials, and/or any individuals employed by or
acting on behalf of President Trump, his advisors, or
White House officials regarding the JEDI program,
contract, solicitation, and/or award, A WS, Amazon,
Jeffrey P. Bezos, and/or the Washington Post.
d. Mr. Deasy's awareness and consideration of any

statements by President Tmmp regarding A WS,
e. Mr. Deasy's colllllllmications and interactions with

Oracle, Microsoft, and/or any other offeror for the JEDI
solicitation.
f. Mr. Deasy's communications and interactions with any

member of the Source Selection Team.
g. Any documents or information in the administrative

reviewed, sent, signed, or otherwise authorized by
Mr. Deasy.
h. Any docmnents or information not in the administrative

record that were reviewed or considered by Mr. Deasy
or DoD in co1mection with the JEDI program, contract,
solicitation, and/or award.
1. Mr. Deasy's interactions with, relationships with, and

opinions regarding ivfr. Bezos, Aruazou, A WS, and/or
the Washington Post.
6
involvement in any aspect of

the JEDI program, contract, solicitation, and/or award.
b. collllllunications and
interactions with President Tnunp, President Tmmp's
advisors, White House officials, and/or any .individuals
employed by or acting on behalf of President Tnunp,
his advisors, or White House officials.
c. awareness and consideration of

any statements by Pr si leu't Trump rega1·ding A WS,
d. - communications and
~ . Microsoft, and/or any other
offeror for the JEDI solicitation.
e. - communications and
= e m b e r of the Source Selection
Team.
f. Any documents or info1mation in the administrative

revi wed. sent. . i1m d, or othe1wise autl1orized by
g. Any docmnents or infonnation not in the administrative

record that were reviewed or conside1·ed by -
or DoD in connection with the JEDI
program, contract, solicitation, and/or award.
h. - interactions with, relationships

~ · ling Mr. Bezos, Amazon,
AWS, and/or the Washington Post.
7
Person Topic(s) for Examination
- Chairperson of a. - iuvolv ment in any aspect of the JEDI

~ ctiouAdvisory progrnlll, contract, solicitation, and/or award.
Council
b. - communications and interactions with
President Tnunp, President Trnmp's advisors, White
acting on behalf of President Tmmp, his advisors, or
White House officials.
c. - awareness and consideration of any

Amazon, Mr. Bezos, the WasM11gton Post, and/or the
d. - commtmications and interactions with

~ -osoft, and/or any other offerer for the JEDI
solicitation.
e. - communications and interactions with any

~ he Source election Team.
f. Any documents or infonuation in the administrative

productiou(s) that were drafted, edited eceived
-
reviewed sent signed, or otherwise authorized by ■
g. Any document · or infonuation 110 1 i.11 th e administrative

record th::it w ~re revi we I or considered by_
or DoD in connection with the JEDI program, contract,
h. - interactions with, relationship with, and

OJJinions regarding 1.r. Bezo , Amazon, WS , an or
the WasMngton Post.
8
Case 1:19-cv-01796-PEC Document 124-3 ._* Filed 01/17/20 Page 10 of 20
Per on Topic,() for Ex: ruination
_ , Chairperson of a. - involvement in any aspect of the JEDI

~ c t i o n Evaluation program, contract, solicitation, and/or award.
Board
b. - communications and interactions with
President Trump, President Trnmp's advisors, White
acting on behalf of President Tmmp, l1is advisors, or
White House officials.
c. - awareness and consideration of any

JEDI pro~ contract, solicitation, and/or award.
d. - communications and interactions with

~ r o s o f t , or any other offeror for the JEDI
solicitation.
e. - communications and interactions with any

~ e our_ce election Temu.
f. Any documents or infomiation in the administrative

production(s) that were drafted edited, received,
- e d, sent, signed, or otherwise t1uthorized by ■
g. Any documents or .infomurtion not in the administrative

recmd that were reviewed or considered b y _
or DoD in counectioo with the JEDI program contract,
h. - interactions with, relationships with, and

opinions regarding Mr. Bezos, Amazon, A WS, and/or
the Washington Post.
9
Dated: January 17, 2020 By: ~/14(~

-Kevin
--- - - - - -- - - - - - -
P. Mullen
2000 Pennsylvania Ave., N.W.
Telephone: 202.887.1500
Facsimile: 202.887.0763
Attorney of Record for Plaintiff
Attorney o/Recordfor Plaintiff

Of Counsel:

Sandeep N. Nandivada GmsoN, DUNN & CRUTCHER LLP
Caitlin A. Crujido 1050 Com1ecticut Ave., N.W.
Alissandrn D. Young Washington, D.C. 20036-5306
2000 Pennsylvania Ave., N.W. Theodore J. Boutrous, Jr.
Eric D. Vandevelde
10
Filed 01/17/20 Page 12 of 20
EXHIBITB
Filed 01/17/20 Page 13 of 20

BID PROTEST

Plaintiff,
V.
UNITED STATES OF AMERICA,

REDACTED VERSION
Defendant,
and
Defendant-Inte1venor.

FIRST SET OF INTERROGATORIES
Pursuant to Rule 36 of the Rules of the Comt of Federal Claims and this Court's order(s),
Plaintiff Amazon Web Services, Inc. ("AWS") hereby requests that within fourteen (14) days of
the date of service of this document, Defendant United States, by and through the United States
Department of Defense ("DoD''), answer the following inte1rngatories. All terms used herein shall
have the same meaning as set fo11h in AWS's Renewed Motion to Supplement the Administrative
Record. A WS propounds this First Set of Interrogatories without waiver of its right to propound
additional inte1rngatories as autho1ized by the applicable rules and the Comt's order(s).
INTERROGATORIES
1. Please explain all bases and reasons for Secretary of Defense Mark Esper's order
to examine the JEDI award process on August 1, 2019.

Case 1:19-cv-01796-PEC Document 124-3 ._* Filed 01/17/20 Page 14 of 20
2. Please describe all actions that were taken in response to Secretary Esper's
August 1, 2019, order to examine the JEDI award process, including all persons involved and the
outcome(s) of those actions.
3. Please explain why Secretary Esper recused himselfin October 2019 from the JEDI
source selection decision, including the reasons for the timing of bis recusal, and the extent of his
participation in the JEDI source selection decision prior to his recusal.
4. Please explain how and why the members of the Source Selection Team (including
the Technical Evaluation Board, Price Evaluation Board, Sow-ce Selection Evaluation Board,
Source Selection Advisory Committee, and Source Selection Authority) were selected.
5. Did the Source Selection Authority modify in any way the recommendation of the
Source Selection Advisory Council and/or Source Selection Evaluation Board? If so, please
describe the modifications that were made, the time of the modification(s), and the reason(s) for
the modification(s).
6. Please explain all events and interactions relating to the JEDI award that occurred
between the October 17, 2019, execution of the Source Selection Decision Document, mid the
October 25, 2019, public annom1cement of the JEDI awai·d to Microsoft. To the extent any
individual(s) was infonned of the JEDI awai·d decision during this time frame, please identify tl1e
individual(s), the substance of the communication(s), and the reason(s) for the conmmnicatiou(s).
7. Please explain what steps, if ai1y, DoD took to ensure that the individuals involved
in the JEDI somce selection process were not intluenced by the public or private statements of
President Trump, his advisors, White House officials, ancVor any individuals employed by or
acting on behalf of President Trnmp, his advisors. or White House officials regarding the JEDI
Contract and award, Mr. Bezos, Amazon, A WS . ancVor the Was/Ji11gto11 Post.
2
Case 1:19-cv-01796-PEC Document 124-31111111* Filed 01/17/20 Page 15 of 20
8. Please identify and describe all interactions between President Trump, his advisors,
White House officials, and/or any individuals employed by or acting on behalf of President Tnunp,
his advisors, or White House officials, with DoD regarding the JEDI program, contract,
9. Please identify and describe all interactions between DoD and any offeror ( or
potential offeror) of the JEDI solicitation that relate to Mr. Bezos, Amazon, A WS, and/or President
Tnunp.
Dated: January 17, 2020 By:

Kevin P. Mullen
Telephone: 202.887.1500
Facsimile: 202.887 .0763
Attorney ofRecordfor Plaintiff

Ama=on Web Services, Inc.
Of Counsel:

San deep N. Nandivada GIBSON, DUNN & CRUTCHER LLP
Caitlin A. Crujido 1050 Connecticut Ave., N.W.
Alissandra D. Young Washington, D.C. 20036-5306
2000 Pennsylvania Ave., N.W. Theodore J. Boutrnus, Jr.
Eric D. Vandevelde
3
EXIDBITC

BID PROTEST

Case No. 19-cv-0l 796
Plaintiff,
V.
UNITED STATES OF AMERICA,

Defendant, REDACTED VERSION
and
MI ROSOFT CORPORATION,
Defendant-Inte1venor.
PLAffiTIFF AMAZON WEB SERVICES, INC.'S

Fm T SET OF REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Rule 34 of the Rules of the Court of Federal Claims and this Comt's order(s),
Plaintiff Amazon Web Services, Inc. ("AWS") hereby requests that within fomteen (14) days of
the date of service of this document, Defendant United States, by and through the United States
Department of Defense ("DoD"), answer the following requests for production of documents. All
terms not defmed herein shall have the meaning as set forth in A WS 's Renewed Motion to
Supplement the Administrative Record. A WS propounds this First Set of Requests for Production
of Documents without waiver of its right to propound additional requests for production as
authorized by the applicable rules and the Comi's order(s).
l
REQUESTS 2
1. Please produce all drafts, memoranda, notes, rev1s1ons, working documents,
analyses, and other materials relating to the JEDI contract, solicitation, and/or award, including all
analyses and evaluations of proposals submitted.
2. Please produce all docwnents and communications relating to the evaluation and
analysis of results from any demonstration presented by AWS or Microsoft.
3. Please produce all communications, and document relating to communications,
between any member of the SSA, SSAC, and/or SSEB on the one hand, and any individual who
is not a member of the SSA, SSAC, and/or SSEB on the other hand, conceming the JEDI contract,
4. Please produce all co1ll1Ilunications, and documents relating to communications,
involving any member of the SSA, SSAC, and/or SSEB concerning President Trump, his advisors,
White House officials, and/or any individuals employed by or acting on behalf of President T.rnmp,
his advisors, or White House officials.
5. Please produce all documents and communications relating to any review,
evaluation, and/or analysis of potential conflicts of interest regarding the JEDI solicitation,
contract, and/or award.
6. Please produce all communications, and documents relating to communications,
between DoD and President Trump, his advisors, White House officials, and/or any individuals
2
For the purposes of these requests, "documents" and "communications" include, without
limitation, every writing or record of whatever type, fonn, or description, including all drafts
of such, and including but not limited to any electronically stored data, co1rnmmications, or
paper documents (including all metadata, embedded, hidden, and other bibliographic or
historical data describing or relating to the document or communication). "Docmnents relating
to communications" includes, without limitation, calendars, meeting agendas, notes, or
minutes, concerning all appointments, telephone calls., conferences, and/or other meetings.
2
Filed 0V17/20 Page 19 of 20
employed by or acting on behalf of President Trump, his advisors, or White House officials,
relating to the JEDI solicitation, contract, and/or award.
7. Please produce all communications, and documeJlts relating to communications,
between DoD and President Trnmp, his advisors, White House officials, and/or any individuals
relating to Mr. Bezos, Amazon, A WS, the Washington Post, and/or the JEDI solicitation, contract,
or award.
8. Please produce all communications, and documents relating to communications,
between DoD and President Trump, his advisors, White House officials, and/or any individuals
relating to Oracle, IBM, Microsoft, and/or any other offeror ( or potential offeror) for the JEDI
solicitation.
9. Please produce all documents and communications relating to the JEDI solicitation,
contract, and/or award that reference President Trump, his advisors, White House officials, and/or
any individuals employed by or acting on behalf of President Trump, his advisors, or White House
officials.
I 0. Please produce all documents and communications concerning any of President
Tl1llllp's tweets, the phrases "screw Amazon," "Bezos Bailout," ''No Bid Bezos," and/or the
"Amazon Washington Post," and/or Guy M. Snodgrass and/or his book, Holding the Line: Inside
Trump's Pentagon with Secretary ~Mattis.
3
Filed 01/17/20 Page 20 of 20
Dated: January 17, 2020 By:

Kevin P. Mullen
Telephon : 202.887.1500
Facsimile: 202.887.0763
Attorney ofRecord for Plaintiff

Of Counsel:
J.AlexWard Andrew S. Tuhnnello

Daniel E. Chudd Dauiel P. Chung
Sandeep N. Nanclivada GmsoN, DUNN & CRUTCHER LLP
Caitlin A Crujido 1050 Com1ecticut Ave., N.W.
Alissandra D. Young Washiugton, D.C. 20036-5306
2000 Pennsylvania Ave., N.W. Theodore J. Boutrous, Jr.
Eric D. Vandevelde

Amazon JEDI Lawsuit Filing

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Case 1:19-cv-01796-PEC Document 146 Filed 02/10/20 Page 1 of 2

Case 1:19-cv-01796-PEC Document 124 ~ * Filed 01/17/20 Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

AMAZON WEB SERVICES, INC.,

UNITED STATES OF MERI A,

Defendant, FINAL REDACTED VERSION

PLAINTIFF AMAZON WEB SERVICES, INC.'S

Filed 01/17/20 Page 2 of 2

Court GRANT this Motion.

Dated: January 17, 2020 Respectfully submitted,

Attorney ofRecordfor Plaintiff

J.Alex Ward Andrew S. Tulumello

Case 1:19-cv-01796-PEC Document 1 2 4 - 1 - Filed 01/17/20 Page 1 of 43

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

AMAZON WEB SERVICES, INC.,

UNITED STATES OF AMERIC

Defendant, FINAL REDACTED

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

Case 1:19-cv-01796-PEC Document 124-1 ~ Filed 01/17/20 Page 2 of 43

TABLE OF AUTHORITIES ............................................... ................. ., ..................~ ................. iii

STATEMENT OF FACTS ............................................... ................................................... ......... 3

A. President Trump Has Consistently Interfered with the Administration of

B. President Trump's Long-Standing Hostility Towards Amazon and Mr. Bezos

LEGAL STANDARD ........................................................... ...................................................... 15

1. The President's Overt Bias Infected DoD Officials' Decisions and

B. The Court Should Supplement the Achninistrative Record with AWS's

C. The Court Should Grant A WS Leave to Supplement the Administrative Record

Case 1:19-cv-01796-PEC Document 124-1 •- Filed 01/17/20 Page 3 of 43

AshBritt, Inc. v. United States,

A IT, Inc. v. Dep 't of Transp.,

Axiom Res. Mgmt., Inc. v. United States,

BayF;rst Sols., UC v. United States,

Beta Analytics Int'/, Inc. v. United States,

Connecticut v. Dep 't ofInterior,

Dep 't of Commerce v. New York,

Galen M, d. Assocs., Inc. v. United States,

lnfore/iance Corp. v. United States,

l11t'l Res. Recove,y, Inc. v. United States,

J.C.N Co11str. Co. v. United States,

Knight First Amendment Inst. at Columbia Univ. v. Tmmp,

Case 1:19-cv-01796-PEC Document 1 2 4 - 1 - Filed 01/17/20 Page 4 of 43

L-3 Commc 'ns Integrated Sys., L.P. v. United States,

New Dynamics Found. v. United States,

Orion Int'/ Techs. v. United States,

Palantir USG, Inc. v. United States,

Pitney Bowes Gov't Sols., Inc. v. United States,

Stany Assocs., Inc. v. United States,

United States v. AT&T,

United States v. AT&T,

Veg-Mi:-r, Inc. v. Dep 't of Agriculture,

l0U.S.C. § 2305(b)(5) ........................................ ........................................................ ............ 14, 35

18 U.S.C. § 208 ................................................................................................ ......... .... ................. 13

48 C.F.R. § 3.401 ............................................................................................... ................... ..... .... 19

48 C.F.R. § 15.506(a)......................................................................................... ... ........ ................. 14

Filed 01/17/20 Page 5 of 43

0077, to Microsoft Corporation ("Microsoft").

administration of government functions-including federal procurements-to advance personal

motives. There is no question he did so here.

Case 1:19-cv-01796-PEC Document 1 2 4 - 1 , ; - Filed 01/17/20 Page 6 of 43

did not present the best value to the Government.

Case 1:19-cv-01796-PEC Document 1 2 4 - 1 - Filed 01/17/20 Page 7 of 43

targeted discove1y and supplementation of the AR.

that process in furtherance of his personal and political interests. 1