Inside Defense, a subscription-only publication, today reported that a former defense procurement official believes the current KC-X tanker Draft RFP may violate the law. Here is what Inside Defense sent out in the public domain:
Former Top Procurement Official Questions KC-X Compliance with New Acquisition Law
The Pentagon’s solicitation for the KC-X aerial refueling competition is inconsistent with the 2009 Weapon Systems Acquisition Reform Act and may violate the law, according to a former top federal procurement officer.
That critique, by Robert Burton, a former deputy administrator of the Office of Federal Procurement and Defense Department veteran, comes as a powerful lawmaker and a key architect of the recently enacted weapon systems acquisition reform law — Sen. John McCain (R-AZ) — is raising questions about whether the KC-X draft request for proposals, issued on Sept. 25, complies with the new act.
In an October 19 letter obtain by Inside Defense, Burton writes that the DRFP is “inconsistent” with the Weapons Systems Acquisition Reform Act of 2009 by failing to “provide for trade-offs between cost, schedule. and performance….” This is “clearly inconsistent with the intent of the law and Congress’ desire to maximize competition and minimize risk.”
Burton goes on to write the the USAF is “inviting significant risk” by conducting a 15-year fixed price competition. He calls it “highly unlikely” that the presumed offerers, Boeing and Northrop Grumman, will submit bids that will be within 1% of each other–a key parameter in the RFP–thereby awarding the contract to the smaller airplane “with minimal capabilities.” Although Burton doesn’t say so, this clearly suggests Boeing’s KC-767 will be the winner.
Burton cites Section 201 of the WSARA is applicable in which “trade-offs among cost, schedule and performance are considered as part of the requirements process.”
More on WTO
After Thompson published his piece supporting inclusion of the preliminary WTO ruling that Airbus improperly benefited from subsidies, we emailed Thompson asking why he continually ignores Article 23 of the WTO rules that prohibit self-help before the case is finalized (the issue addressed in the Northrop rebuttal). Thompson did not respond (not atypical, by the way).
We have maintained from the day the WTO Interim Report was issued that while Boeing and its supporters believe the finding that Airbus violated WTO rules should be considered by the USAF, Article 23 prevents this and to do so would violate WTO rules. That the final report rarely changes is academic (and the operative word here in any event is “rarely;” this doesn’t mean “never”). If Boeing and its supporters are sticklers for the rules on the one hand, they can’t ignore the rules on the other.
We’ve also maintained that if the USAF changes its collective mind and decided the Interim Report finding will be considered (Article 23 notwithstanding), we’ve said doing so in the absence of the pending WTO findings in the EU case against Boeing subsidies will generate a protest from Northrop should Boeing get the contract. Every observer, including some inside Boeing, believe the WTO will uphold some of the EU complaints against Boeing.
We may not have much longer to wait for the WTO Boeing Interim Report. We are getting indications that the report may be issued before the end of the year. (The operative words are “indications” and “may.”) If so, then watch the Airbus/EADS/Northrop crowd and their supporting politicians whinge on about including the Boeing findings in the Final RFP (Article 23 notwithstanding).
Defense Secretary Robert Gates had hoped this Round 3 would be free of corporate food fights and political interference. We thought at the time this veteran of Washington who is now serving his sixth President was being naive.
As we told KOMO Radio (Seattle) in a recent interview about the tanker competition, “We can’t wait for the damn thing to be over.”