He had completed his review of the brief just as the GAO decision broke, so we did not post it at that time. But, his observations on the last portion of the brief merit posting now. If for no other reason, it points out that Air Force lawyers don't seem to understand historical context or they must have a wicked sense of humor.
Overall, the brief is a tough read for all but the most dedicated procurement enthusiasts, but the summary on page 147 is most entertaining. It seems obviously written by someone with a flair for the dramatic and fondness for quotes made prior to the 1880's:
"The genius of the bid protest process resides in the very name of the Office deciding its end: government accountability.The Thomas Jefferson quote referenced above this this: "I am... against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents." (Thomas Jefferson to Elbridge Gerry, 1799. ME 10:78)
Government accountability-that is, the duty of public officials to report their actions to the citizens, and the right of the citizens to take action against those officials whose conduct the citizens consider unsatisfactory-is an essential element, perhaps the essential element of democracy.
This is one example of the freedoms the Air Force does not denigrate or merely tolerate, but celebrates. We embrace and encourage, promote and protect it every single day, whether Active Duty, Reserve, Guard, civilian, or contractor. It is one of the very reasons we exist as an institution, and why individuals remain part of that institution.
The Air Force has reported accordingly. And in doing so we have upheld the Jeffersonian ideal of silencing the complaints of our citizens, whether just or unjust, solely by the force of reason.
It is good to know the Air Force celebrates protests, and that it is against violations of the Constitution to silence its citizens. Also, given their above statement it would seem the Air Force would "embrace, encourage and promote" Boeing to file at the Court of Federal Claims which was established by Congress in 1855 to adjudicate the Constitution's First Amendment guarantee of the right "to petition the Government for redress of grievances."
An important fact to remember is that this quote is widely interpreted as Jefferson's reaffirming his political principles on free speech and freedom of the press in response to the Sedition Act crisis.
As one scholar wrote in an analysis of the act:
The act, which reads like an Orwellian proclamation from an omnipotent government, provided for the punishment of those who published or uttered false or scandalous statements and information about the government of the United States, Congress, or the president. Stirring up sedition could be punished by a fine of not more than $2,000 and imprisonment not exceeding two years. Though the truth could be used as a defense,no one using that defense was ever acquitted.Trying to quote Jefferson's response to a government unjustly punishing those who dared to utter truthful but unpleasant words is not a wise choice to say the least.
We would respectfully suggest the Air Force should have use a Madison quote that addresses another hated act of this time, the Alien Friends Act. The acts obvious anti-French origins make it a perfect vehicle for the Air Force to stress the need to be friendly to French owned EADS.
Or, if they insist on a Jefferson quote, "To these I will add, that I was a sincere well-wisher to the success of the French revolution" can be found in the same letter to Mr.Gerry as their original choice. But, they should be warned that it ends with, "but I have not been insensible under the atrocious depredations they [the French] have committed on our commerce."
In closing the Air Force continues with the following:
As this case has shown, a bid protest may provide fodder for public discussion on various military, political, and economic subjects. It might provide a reminder of the brilliance of our governmental system. But, in the end, it is an avenue to a concrete resolution of the concerns of the citizens.This time the Air Force barristers really go overboard with their improperly truncated quote of Abraham Lincoln's 1860 Cooper Union Address.
The time has at last come for GAO to resolve Boeing's protest. "Let us have faith that right makes might; and in that faith let us to the end, dare to do our duty." Based on the record, the answer is clear: deny Boeing's protest in its entirety.
The full closing paragraph of Lincoln's speech is this:
"Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. Let us have faith that right makes might; and in that faith let us to the end, dare to do our duty as we understand it."
So does the Air Force feel as though it has been slandered? Falsely Accused? Or frightened by the menaces of destruction to the Government?
Or, does the Air Force now understand its duty is to abide by the GAO ruling to rebid the contract; as the rightness of this decision makes mighty its non-binding status? Let's hope they do.
Also, will someone in the Air Force please remind us again how stopping the spread of slavery to new territories and new states entering the Union is in anyway connected to a GAO decision on a tanker contract?
Should we expect case citing or precedence from Plessy vs. Ferguson or Brown vs. Board of Eduction in future tanker briefs? If so, we at Tanker War Blog want to be firmly on record against "separate but equal" Air Force tanker requirements and what the GAO ruled today was "misleading and unequal discussions" about the tanker.