Letter to Mark Esper, Secretary of Defense - Grassley Continues to Press Defense Department on Massive Cloud Computing Procurement Program, Conflicts of Interest and OIG Recommendations

Letter

Dear Secretary Esper:

On April 9, 2019, I sent a letter to then-Acting Secretary of Defense, Patrick Shanahan,
regarding my concerns with respect to the Department of Defense's (Department) Joint Enterprise Defense Infrastructure (JEDI) program, alleged conflicts of interest pertaining to those charged with creating its bid, and reported disputes between bidders and the Department. The Department's Office of the Inspector General (OIG) completed a review and provided recommendations in response to members of Congress raising concerns about the JEDI program.

The OIG report found that, at the very least, there was an appearance of impropriety in the formation and design of the JEDI bid proposal. In addition, the OIG report found Department employees had "lied" to the Department regarding their relationship with companies that were expected to bid on, or actively competing for, the JEDI contract. "Lie" is a word not often used by any OIG.

Although the OIG stated the deception did not have a substantive impact on the contract,
and relevant authorities have chosen not to pursue charges, the mere appearance of impropriety
taints the contracting process and could cause all applicants to wonder if they won or lost a contract
due to backroom deals that benefit Department employees.

This appearance is further complicated when applicants are not afforded a debriefing process which is typically given after bids are not accepted.

To counteract the appearance of a conflict of interest and to improve the bidding process,
the OIG provided several recommendations in the JEDI report, including policy changes and
administrative actions against Department personnel. The report, states "[t]he responsible officials
did not respond to the recommendations on the draft version of [the] report. Therefore, the
recommendations are unresolved. [The OIG] request[s] that the appropriate officials provide
comments on this final report."6
The Department has failed to do so thus far.
The Department has a duty to the American taxpayer to ensure funds are spent wisely, and
contracts are free of costly and unnecessary disputes. To that end, I request you provide a briefing
to my staff on how Department regulations will change as a result of the findings in the OIG's
report and answer the following questions by October 19, 2020.
1. How much in total transaction costs has the Department spent on the JEDI program for the
following categories: acquisition personnel, technical expertise, and administrative
support? In your response, please address costs including, but not limited to, personnel,
planning, market research, contract solicitation, drafting, proposal evaluation, negotiations,
solicitation revision, litigation, and corrective actions.
a. How much of that cost is due to the issues that arose from allegations of conflicts of
interest or other issues that may have caused significant delays and award disputes?
2. At the exponential rate in which technological advancements occur, especially relating to
cloud and artificial intelligence technology, are the contract requirements that were written
over two years ago still up to date?
7
If not, what steps have you taken to get them up to
date?
a. In the past 6 months has the Department assessed the market's current capabilities and
trends to ensure the Department receives the most appropriate and advanced equipment
and is aligning with industry standards?
3. Can the Department cite to any other major procurement program that has moved forward
with the contract award process despite Department employee conflicts of interest issues?

a. What were the costs of the cited programs and how do they compare in complexity to
the JEDI program?
4. Generally, after a government contract is awarded, an opportunity is provided to those
applicants that did not receive the award to be briefed by the agency on why another bid
was selected over theirs.8 Why was the normal debriefing process not followed in this
instance?
5. Why did the Department not initially comment on the OIG's JEDI draft report?
6. Why has the Department not commented on the OIG's JEDI report since the document's
publication?
7. The OIG recommended "the Acting Director for Contract Policy, Defense Pricing and
Contracting, consider developing and implementing appropriate policy to require some
level of documentation and analysis supporting key acquisition decisions, including any
legal reviews and advice, for contracts that exceed the $112 million threshold established
by statute."9
What steps has the Department taken to close that recommendation?
8. The OIG recommended "the Chief Management Officer, in coordination with the
[Department] General Counsel, consider administrative action against appropriate
individuals for failing to review the redacted reports and attachments to the debriefing emails, and disclosing proprietary, proposal, and source selection information"?
10 What
steps has the Department taken to close that recommendation?
9. The OIG recommended "the Principal Deputy General Counsel, as Chair of the
[Department] OGC/Defense Legal Services Agency Professional Conduct Board, in
coordination with the [Washington Headquarters Services (WHS)] General Counsel,
determine whether disciplinary action should be taken against appropriate individuals
under attorney performance standards for failing to review the redacted reports and
attachments to the debriefing e-mails, and disclosing proprietary, proposal, and source
selection information."
11 What steps has the Department taken to close this
recommendation?

10. The OIG recommended "the Director of the WHS Acquisition Directorate, in coordination
with the WHS General Counsel: "[r]equire training for WHS officials handling acquisitionrelated matters regarding the contents of the [Department] Source Selection Procedures
Debriefing Guide with special attention to Section A.8.3, Information Not Appropriate for
Disclosure[;]"
12 and "[d]evelop a standard redaction policy applicable to all acquisitions to
eliminate the ambiguity regarding redactions of source selection information, particularly
Source Selection Team names."
13 What steps has the Department taken to close these
recommendations?
11. The OIG recommended the "Chief Information Officer incorporate a record of Mr. Ubhi's
misconduct into his official personnel file."
14 What steps has the Department taken to close
this recommendation?
12. The OIG recommended that the "Chief Information Officer notify the [Department]
Consolidated Adjudications Facility of Mr. Ubhi's misconduct with regard to any security
clearance he may hold or seek in the future."
15 What steps has the Department taken to
close this recommendation?
13. The OIG recommended "the Undersecretary of Defense for Acquisition and Sustainment
consider appropriate action for Ms. Cummings' ethics violations, including potential
counseling and training."
16 What steps has the Department taken to close this
recommendation?
14. The OIG recommended the "Chief Information Officer review the Cloud Computing
Program Office's procedures for identifying and mitigating potential conflicts of interest
and take appropriate action as a result of this review."
17 What steps has the Department
taken to close this recommendation?
Thank you for your attention to this important matter. Should you have questions, please
contact Danny Boatright of my Finance staff at 202-224-4515.

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