DoD graphic

The Defense Department’s strategy to transition to cloud computing. Note both the prominent role for the JEDI project and the parallel system of “Fit For Purpose” clouds.

WASHINGTON: “It would be absolutely the wrong choice to pull the plug on JEDI today,” Tom Spoehr says.

The retired Army three-star general, now director of defense research at the Heritage Foundation, reached out to me after a recent article on the legal battle paralyzing the Pentagon’s $10 billion, 10-year cloud computing contract, awarded to Microsoft but contested by Amazon. That April story suggested, in the words of defense acquisition veteran Bill Greenwalt, “it may be time to just pull the plug and start over.”

Heritage Foundation photo

Lt. Gen. (ret.) Thomas Spoehr

Spoehr vehemently disagreed. He also disagreed with the Army’s recent decision to reboot its Optionally Manned Fighting Vehicle program, and for the same reason: Speed is life. Cancelling the Joint Enterprise Defense Infrastructure, he told me, “would be like cancelling OMFV. You are just restarting the clock again.

“Bid protests have made this very difficult for the DoD, but they are now getting close,” Spoehr insisted. “The industry has been trying from day one to slow this program down, and their strategy has been to employ every trick in the book: lobbying, Congressional language, court cases — everything. Their plan has been to force DoD to open the contract to multiple vendors, akin to everyone gets a trophy.”

But the Pentagon continues to insist on a single vendor. Why? The Defense Department already has over 500 different cloud computing contracts, with different agencies, services, and subunits hiring different IT companies on different terms. The whole point of JEDI was to create an easy button: a default “general purpose cloud” that any DoD subunit could use, from strategic planners to frontline troops, and that didn’t require managing multiple companies on what’s called an Indefinite Delivery, Indefinite Quantity contract.

“The reason they did not go to an IDIQ with multiple vendors is they wanted a single source in order to reduce complexity,” Spoehr said, “and they are nearly there.”

Are they? Three other experts we talked to were far from sure.

‘Just Walk Away’?

“Dude, just walk away,” one well-informed source told me. “All you’ll be doing is years and years of litigation with people who have more money than God….It’s now a pissing match between billionaires, [and] they’ve both got legitimate claims.” Amazon can argue President Trump’s public attacks on them tipped the scales; Microsoft can argue that they won the competition and Amazon can’t sue its way into a second chance.

But as long as the Pentagon sticks with its decision to award the whole contract to a single vendor for up to 10 years, the stakes may be too high for either Microsoft or Amazon to let the other win. They both have the money, lawyers, and legal grounds to drag out the legal battle indefinitely, and both would prefer the contract to die than let the other get it.

University of Baltimore photo

Charles Tiefer

On the flipside, both companies would be quietly okay with splitting the contract between them, argued congressional counsel turned law professor Charles Tiefer, a longtime critic of JEDI.

“If you forced Microsoft and Amazon to admit it, they would admit that if the other contractor wins the first half of the award, they would be happy and willing to take it over and handle the next task order,” Tiefer told me. “It would be the best for all concerned if they pulled the plug, went back and fixed the original request for proposals, and decided to have a multiple award.”

The decision to go to a single vendor for 10 years was JEDI’s “original sin,” he said, “and we’ve been plagued ever since.”

The ongoing court battle can’t solve that fundamental problem, Tiefer said: “You can’t successfully protest as illegal the decision to make a single award rather than a multiple award.”

Instead, the Defense Department has admitted one particular portion of the award process was flawed and got the court’s permission to redo it. The Pentagon could use this motion as a pretext for a fundamental overhaul of the contract, he said, but all indications are they’re going to try a narrow technical fix that he doubts will satisfy Judge Patricia Campbell-Smith.

“This is a very smart judge,” Tiefer told me. “When the Defense Department comes back [to her] and says, ‘here’s our re-award. Surprise! We gave it to Microsoft again’ — excuse me for laughing… She could say, ‘your hearing aid isn’t working, you didn’t hear what I said to you, you’ve screwed up, you had an opportunity to overhaul [the whole award] and you didn’t.’”

What’s more, he argued, while the judge granted the Pentagon’s motion on grounds that were “extremely narrow, cautious, and surgically precise,” she has legal leeway to consider much broader questions.

DoD graphic

Cover of the Defense Department Inspector General report on the JEDI cloud computing competition.

“The legal issues …fall into two categories, broadly,” Tiefer told me. “One is mistaken or poorly documented evaluation by the Defense Department, and the other is bias from President Trump’s loud attacks on Amazon.”

The White House and Defense Department general counsels kept the Pentagon’s semi-independent inspector general from looking into the possibility of pressure from Trump, but they can’t stop the court from doing so. “This judge could allow what from her perspective was relatively limited discovery and still have a big impact,” Tiefer said. “Just look at the email traffic between … the award team and those people in the Defense Department’s upper hierarchy who would have been articulating a presidential position, if anyone was.

“If the discovery and potential trial open up the White house interference issue, it will indeed be an astonishing mess,” .

In that case, the Pentagon may well decide they don’t want to deal with any of this until after the election in November. “They may well think it depends on which way the election goes: that if President Trump is reelected, they should continue doing what they’re doing, battering through to make the award against Amazon and for Microsoft,” Tiefer said. “On the other hand, if President Trump were not reelected, maybe they’d be willing to stop trying to stick band-aids on this wounded procurement and instead make a fresh start.”

Running Out of Time?

Whether the Pentagon should save JEDI or kill it is “a tough call,” said CSIS expert Andrew Hunter, a former defense acquisition official himself. The answer, he told me, ultimately depends on how long the court case drags out. In the fast-paced world of IT, the longer the delay, the less JEDI is worth.

CSIS photo

Andrew Hunter

“The key thing JEDI offers that isn’t easily obtained elsewhere is the security features,” Hunter told me. “If they can conclude the protest relatively quickly, that’s the fastest path to secure cloud.”

But when, I asked, does “relatively quickly” become “too late”?

“By the end of the year,” Hunter said.

That is a deadline the Defense Department could actually make, he argued. “The government’s strategy in the JEDI bid protest is a tried and true one,” he said. “Since the court has indicated it sees errors in part of the analysis supporting the contract award, fixing those issues voluntarily is a common way for the government to avoid having the entire contract award overturned…and then rapidly close out the protest.”

But, he said, “the first sign that the court isn’t likely to accept that approach might be a good time to punch out.”

Even if JEDI does survive, Hunter said, it will never be the central pillar of Defense Department cloud computing that it was intended to be, especially with the COVID-19 pandemic forcing agencies to find other solutions for telework in a hurry.

“JEDI is not DoD’s cloud acquisition strategy,” he said. “JEDI was a way to jump start DoD’s cloud acquisition strategy, and the fact that is has been so delayed means that it will likely play a much less important role.”