Tanker War Blog has been hard on the Air Force procurement at times, but today we feel we must act as its pro-bono public defender.
Since the scathing decision by the GAO on 18 June, Air Force procurement personnel and their actions have been subjected to a number of vicious attacks in the Court of Public Opinion. Before the final verdict is rendered, we feel there are some facts that must be known.
As counsel we will prove beyond a reasonable doubt that Air Force procurement can not be held accountable for the mistakes in the KC-X contract as its state of mind did not allow it to make reasoned analysis. As such, the Air Force's actions on awarding the tanker contract to the KC-30 team were not based on willful malice or negligence, but due instead to diminished capacity and battered service syndrome.
Ladies and gentlemen of the jury, our client has suffered greatly these past four years and to illustrate this we introduce the following into evidence:
1) In 2004, Congress killed a $23.5-billion Air Force plan to lease and buy 100 modified Boeing 767s as tankers after Darleen Druyun, a former Air Force weapons buyer, admitted to inflating the deal before taking a $250,000-a-year job with Boeing. As a result, Druyun served a nine-month prison sentence for conflict-of-interest violations, and the Air Force reopened the competition.
All the contracts that Ms. Druyan was directly involved with since 1993 were reviewed. The Defense Contract Management Agency examined more than 8,000 pages of information in 407 contracts and identified those contracts that appear to have anomalies in them which warrant further review. As of a result of this review and subsequent protests the Air Force investigated the following programs: NPOESS-Conical Microwave Imager Sensor, C-5 Avionics Modernization Program, Financial Information Resource System(FIRST), C-22 Replacement Program (C-40), 60K Tunner Program Contractor Logistics, KC-135 Programmed Depot Maintenance, F-16 Mission Training Center, C-40 Lease and Purchase Program, Small Diameter Bomb, C-130 AMP.
It is our argument that the loss of credibility, the subsequent departure of the Sec of the Air Force James G. Roche, and the damaged congressional relationships that occurred as a result of this scandal caused our client to go into a downward spiral. The witch hunt that resulted forced some out merely for exchanging e-mail and opinions on the tanker lease. The scandal also caused a huge back load of work which as we will prove stressed and ,with the addition of a number of other factors, finally broke Air Force procurement.
2) In late 2005 our client became aware that it was destitute and could not successfully modernize its force with its current and projected budget. At that time our client sought a number of ways to alleviate this situation, but was eventually denied all its reasonable attempts to support itself.
Given that our client was under extreme financial stress, it is not unreasonable to say that it was susceptible to any fast talking European salesman who falsely promised to deliver lower life cycle costs.
3) February 24, 2006, The DoD Inspector General begins its investigation into the "Thunder Vision" contract. This investigation played heavily on the Air Force procurement and top uniformed officers for a number of reasons: First, those involved included Gen Mosley, Gen Lichte, and MajGen. Goldfein. (Only MajGen Goldfein was found to be culpable.) Second, the company protesting the award was from Arizona, and some in the Air Force feared that particular congressional members from that state may use the case as leverage. The Federal investigation was declined in May 2007 for insufficient evidence at that time, but could have been reopened if there was high level congressional interest.
4) December 1, 2006 a powerful senator writes to then nominated but unconfirmed SecDef Dr. Gates for a number of changes to the KC-X RFP including: Elimination of WTO language, elimination of Berry Amendment provision, and removal of extensions to ITAR regulations, and the inclusion of evaluation criteria that "measures the capabilities beyond thresholds" that would favor large aircraft platforms.
This is not the first congressional letter our client was subjected to, but all prior letters had been dismissed, and the previous SecDef had protected Air Force procurement from Congressional meddling. With the arrival of Sec Gates, my client lost a key ally and was now left to the devices of powerful "third party" lobbying and congressional interests.
5)October 15 2007 Darleen Druyun's replacement as the Air Force's principal deputy assistant secretary for acquisition, Charles D. Riechers, commits suicide and in a note addressed to the head of Air Force procurement repeatedly apologizes for causing a "doomsday scenario" and regrets that the Air Force procurement unit had come under fresh scrutiny.
Prior to Mr. Riechers being confirmed for his Pentagon post, the Air Force arranged a job for him at a defense contract but he did no work for the firm. The arrangement had been drawing heavy scrutiny from Congress.
Mr. Riechers reportedly worked on the KC-X procurement; his sudden and tragic death left our client in a diminished capacity from which it could not recover.
6) December 19, 2007 a member of Senator John McCain’s staff requested that the DoD IG investigate and advise him on whether the Air Force request for proposal for an aerial tanker replacement contained impediments to competition and whether the request for proposal included capability or operational requirements for aircraft refueling and cargo transport.
During this critical decision time for the KC-X tanker contract it weighed heavily on my client's mind as it seemed as though a preemptive IG investigation was being launched by KC-30 supporters. Under such conditions how could our client be expected to chose any other tanker but the KC-30?
7)Finally, we present exhibit A: TWB's inaugural post which pointed out, contrary to Air Force public statements during the tanker award announcement that, “We owe it to Boeing to give them the first debrief,” Air Force personnel briefed at least one outside defense expert and sought to brief members of congress while trying to delay debriefing Boeing for two weeks.
These actions were taken to seed the story that Boeing had lost decisively and to make public and congressional opinion go against a possible Boeing protest. This shameful tactic did work in the media and continued to generate numerous stories that Boeing lost decisively as see here, here, and here; until the GAO showed how poorly the contract was handled.
Ladies and gentlemen, we propose to you that our client knew that its duplicity and leaked misinformation would eventually be uncovered. In fact, these actions were not done out of malice but should be viewed instead as a cry for help.
So, as counsel to Air Force procurement we believe we have proven beyond a reasonable doubt that our client, was at the time of selction, in such a state of mind that it can not be held accountable for its actions. We humbly ask the jury in the Court of Public Opinion to please forgive our client, allow it to rebid the tanker contract, and choose the right tanker for the mission; the KC-767.
Further, we ask that our client's procurement budget be fully funded to meet its mission needs for the F-22, C-17, C-130J, FSF, and the KC-X.
Lastly, your honor we ask that you issue a restraining order against the KC-30 supporters whose constant harassment has so battered the service and left it in its current state of diminished capacity.
In closing, the defense rests in this case, but the Air Force's defense of our nation can never rest. As such, you must exonerate our client and protect it against those seeking to force the KC-30 on it.
Tanker War Blog, Esq.