Mofo offices (Courtesy photo)

Newly unsealed court papers in Amazon.com Inc.'s blockbuster suit against the U.S. Defense Department accused President Donald Trump and others of "undue influence" as contributing to the technology company losing a $10 billion cloud-computing contract to rival Microsoft Corp.

Amazon Web Services, represented by Morrison & Foerster and Gibson, Dunn & Crutcher, is suing the Pentagon in U.S. Court of Federal Claims, the Washington-based court that hears disputes over government contracts. A redacted version of the company's complaint, filed in late November, was released Monday.

Trump's animus toward Amazon and its chief executive, Jeff Bezos, is widely documented, and the company contends in the complaint that "improper pressure" from Trump contributed to Amazon losing the lucrative award. Trump has lashed out often at Bezos over his ownership of The Washington Post, a media outlet that, like many others, has published articles critical of his leadership and policy stances before and after he took office. The president regularly derides the news company as the "Amazon Washington Post."

"Irrespective of any artificial steps the Administration might have taken to sterilize the record, it was impossible to shield DoD from the bias exhibited and undue influence exerted by President Trump and others. That improper and unlawful intervention contributed directly to an arbitrary and capricious award that is contrary to procurement law and contrary to the interests of our national security."

In November, Mark Esper, the Defense Department secretary, denied that any bias played into the Pentagon's decision to award the Joint Enterprise Defense Infrastructure, or JEDI, contract to Microsoft. "I am confident it was conducted freely and fairly, without any type of outside influence," Esper said, according to media reports.

Lawyers for Microsoft, represented by Robert Metzger of the Washington litigation boutique Rogers Joseph O'Donnell, have intervened in the Federal Claims case to defend the Pentagon's award. Metzger and a Microsoft spokesperson did not immediately comment Monday.

A Defense Department spokesperson said in a statement Monday:

"This source selection decision was made by an expert team of career public servants and military officers from across the Department of Defense and in accordance with DOD's normal source-selection process. There were no external influences on the source selection decision. The department is confident in the JEDI award and remains focused on getting this critical capability into the hands of our warfighters as quickly and efficiently as possible."

Amazon's lawyers contend in their complaint that Trump's "attacks were relentless, and he resorted to increasingly aggressive tactics to carry out his apparent personal goal of preventing Mr. Bezos and [Amazon Web Services] from receiving the JEDI contract." The suit alleged Trump "launched repeated public and behind-the-scenes attacks to steer the JEDI Contract away from AWS to harm his perceived political enemy—Jeffrey P. Bezos." The complaint cites numerous statements and tweets from the president, including remarks at a July 2019 press conference at which Trump said he was looking "very seriously" at the JEDI contract.

"DoD's substantial and pervasive errors are hard to understand and impossible to assess separate and apart from the President's repeatedly expressed determination to, in the words of the President himself, 'screw Amazon,'" Amazon's complaint said.

The 103-page complaint alleged Trump's intervention "puts the very integrity of the government procurement process in question" and served to "artificially level the playing field between AS and its competitors, including Microsoft."

The JEDI contract is a 10-year deal providing cloud-computing services to the Defense Department. Amazon, Microsoft, OBM and Oracle were vying for the contract. Oracle, represented by Craig Holman, who leads the government contracts practice at Arnold & Porter Kaye Scholer, has a pending appeal in the U.S. Court of Appeals for the Federal Circuit.

Ted Boutrous Theodore J. Boutrous, Jr. (Photo: Diego M. Radzinschi/ALM)

Morrison & Foerster's Kevin Mullen is counsel of record to Amazon. The company also hired a Gibson Dunn team, including Theodore Olson, F. Joseph Warin, Theodore Boutrous Jr. and Andrew Tulumello.

Boutrous, a leading First Amendment scholar, has successfully represented members of the media in suits challenging the Trump White House's restrictions on reporters. Olson, a former George W. Bush administration U.S. solicitor general, is one of the firm's most visible Supreme Court advocates. Warin leads Gibson Dunn's litigation team in Washington and serves as co-chair of the firm's global white-collar and investigations practice.

The lawsuit asked the Federal Claims court to enjoin the award of the JEDI contract to Microsoft "pending reevaluation and a new award decision." The case is assigned to Judge Patricia Campbell-Smith.

 

Read more:

Amazon Hires Gibson Dunn, MoFo Teams to Sue Pentagon Over $10B Cloud Contract

Government Contracts Lawyers Prep After Microsoft Snags $10B Pentagon Order

Is 'Self-Censorship' Keeping Big Law Conservatives on the Sidelines?

Gibson Dunn's Boutrous Notches Second Win Over White House Media Access

Ted Olson Is Fired Up Over ABA's Kavanaugh Letter, Drops Membership