By Emelie Rutherford
The Government Accountability Office may extend the Air Force’s deadline for responding to Boeing‘s [BA] protest of the service’s award of its tanker contract to a rival, and the GAO likely will hold a closed hearing before issuing a decision, a spokesman said.
In addition, Northrop Grumman [NOC]–which with partners including European Aeronautic Defense and Space Co.– (EADS) won the contract for the aerial-refueling tankers Feb. 29–yesterday said it has filed a motion asking the GAO to dismiss “significant portions” of Boeing’s protest.
Following Boeing’s March 11 protest contract award, the service initially was due to submit its formal response to the GAO by April 10.
Yet because Boeing has submitted two additional supplemental protests, the Air Force may be allowed more time, a GAO spokesman said.
“We’re considering, because of the supplemental protests, extending it,” the spokesman said about the Air Force’s April 10 deadline. The service has already sent “a large portion of the early documents” to the GAO, but not the actual official response to the allegations in Boeing’s protest, he said.
GAO has 100 days to render its decision in the contract dispute, making June 19 the final day it can do so.
The GAO spokesman said if the Air Force’s deadline for its response is lengthened, the overall 100-day timeframe for his office to render its decision will “absolutely not” be extended.
“We usually issue our decisions before the 100 days are over,” he said, adding that “it’s possible in this case it will take the full 100 days.” News of the possible extension was first reported by Reuters.
The GAO’s ultimate ruling will “almost certainly be a protected decision,” he said, though some basic material may be provided to the press.
The GAO also may hold a closed hearing as it weighs the protest, before issuing its decision. Such a hearing would be presided over by a GAO employee who does bid protests, the spokesman said.
“I would say a hearing is more likely than not,” he said. “That is one of the things that we’re discussing with the agency [the Air Force] and the parties as well.”
If there is a hearing, “it would almost certainly be entirely protected material that would be involved,” he said.
The people involved in the hearing would likely be only those admitted to a protective order, he said.
“The only people admitted to the protective order are lawyers and consultants who have been hired by the lawyers, and we have admitted a lot of people to the protective order already,” the spokesman said.
Boeing’s in-house counsel has been admitted to the protective order, he said, adding Northrop Grumman’s lawyers would be at any potential hearing. But employees from the companies would not be allowed in a hearing, he said.
Mark McGraw, vice president of Boeing Tanker Programs, told reporters March 11 his company decided to protest the tanker award because it learned during a debriefing with Air Force officials that the competition was “extremely close.” He argues there were “serious flaws” in the process the Air Force used to evaluate its bid, allegedly doing things such as giving credit for capacities above stated objective requirements.
Sue Payton, assistant secretary of the Air Force for acquisition, said the Northrop Grumman-EADS provided the best value when looking at five deciding factors: mission capability, proposal risk, past performance, cost/price and performance in a simulated war scenario.
The Air Force maintains the tanker proposals “were evaluated thoroughly in accordance with the criteria set forth in the request for proposals” and that it followed a transparent and fair process.
The motion Northrop Grumman filed with the GAO yesterday “argues that much of what Boeing complains about was contained in the KC-X Request for Proposal and should have been questioned, or perhaps protested, before Boeing submitted its final bid,” spokesman Randy Belote said.
He said Northrop Grumman is challenging Boeing’s protest claims on several grounds, including that: “Boeing’s claims that its past tanker experience and superior survivability, and the issue of government subsidies were ignored by the Air Force are untimely because tanker experience was not a proposal requirement and the other items should have been challenged by Boeing long before it submitted its proposal.”