On February 23, Microsoft’s President, Brad Smith, told Congress that the Federal Government needed to shorten its protest timelines. Mr. Smith’s call to action comes while Amazon is protesting the award of the Joint Enterprise Defense Infrastructure (JEDI) contract (for Department of Defense cloud services). A protest was filed by Amazon in November 2019 through the United States Court of Federal Claims (USCFC), the protest was levied against the process the Department of Defense (DoD) took to award the work to Microsoft.
Contractors, who are considered an “interested party,” reserve the right to protest solicitations and contract awards. There are currently three avenues of protest —through the agency, like the DoD, in this case, through the Government Accountability Office (GAO), and through the USCFC. Protesting through the agency and the GAO are limiting, given their stringent timelines. If a potential vendor files a protest directly through the agency, the Contracting Officer must submit their written determination within 30 days. If the vendor chooses to protest through the GAO, the GAO has 100 days to decide.
Vendors are not limited to the number of forums they can try for a protest; if they disagree with the agency’s decision, they can protest through the GAO and the USCFC. The USCFC, unlike its two counterparts, does not have any set timelines, since it hears all cases requesting monetary remedy against the federal government. The USCFC receives approximately 200 pre- and post-award contract injunctions per year. Additionally, companies that protest through litigation shall expect an expensive and lengthy process.
While it’s unfortunate that the Government has not received services for the JEDI program since October 2019, now is not the time to question the protest procedures’ efficiencies or lack thereof.
The saga between Microsoft and Amazon for the JEDI program is unique because the award could potentially shift the top company’s standing and reputation. The Government should take time required to look at all the pertinent facts and ensure that the award was made per federal regulations.