HAC-D Mark-up Analysis

There has been some reporting of the HAC-D bill mark-up tanker language mainly focused on the subcommittee's press release and the statement that it directs industrial base concerns be included in the evaluation.

Chairman Murtha's statement that the subcommittee "directs the DoD to comply with the GAO findings concerning the tanker award protest" is only now being highlighted. It should, as this limitation is probably the more important of the two provisions.

Among the bills provisions, that have already been reported, is limitation language that requires:

No consideration will be provided for exceeding key performance parameter objectives.

That DoD will more accurately determine most probable life-cycle costs over a 40- year life cycle.

The the winner of the competition be able to refuel all current Air Force fixed-wing tanker-compatible receiver aircraft.

Undersecretary Young has previously stated he will give this extra credit; we'll see what happens next.

HAC-D Mark-up Today

Today at 11:00AM ET the House Appropriations Subcommittee on Defense will mark-up its FY 2009 Defense Appropriations bill.

If you remember our post in April, the FY09 budget has the Air Force request of $831.759 M for the "Next Generation Aerial Refueling Aircraft", which is a new budget item. (Source: pg 34, line #83 of FY09 RTD&E Programs Budget) There is also available in FY09 $239.8 M from the "Tanker Replacement Transfer Fund," which are funds remaining from FY05 and FY08 appropriations that went unspent.

Since the decision to recompete the contract, SecDef Gates had requested all FY2009 tanker funds be move to the Tanker Replacement Transfer Fund.

We will not opine as to what the Subcommittee will do in mark-up other to say that there should be active discussion on the amount tanker funding the Air Force needs given that the procurement has been delayed. Also, there may be some limitations placed on the tanker funding.

A limitation places a restriction on the expenditure of funds provided in an appropriations bill, either by setting a spending ceiling, or by prohibiting the use of funds for a specified purpose(s). Congress is not required to provide funds for every agency or purpose authorized by law. It may provide funds for some activities or projects under an agency, but not others. Precedents require that the language be phrased in the negative, for example, that none of the funds provided in this paragraph (typically an account) shall be used for a specified activity.(Source: Walter Kravitz, Congressional Quarterly’s American Congressional Dictionary: Third Edition, pp. 139-140)

Limitations included in the text of the legislation are legally binding; limitations provided only in the committee reports and managers’ statements are not legally binding, but are routinely followed.

At this point in the Tanker War nothing is routine, and language short of law will could very well be ignored by DoD. So, we expect the any tanker limitations to be in the legislation not just be report language.

Any cuts to or limitations placed on the tanker funding will be the first legislative action on the tanker issue since the GAO issued its decision. The Senate Appropriations Subcommittee on Defense is not scheduled to mark-up their bill until September.

Tanker Approps Bill Amendment Readied

Aviation Week reports that Rep. Norm Dicks is working with House Defense Appropriations Chairman Jack Murtha to introduce an amendment to an appropriations bill preventing the award of the U.S. Air Force tanker replacement program to the KC-30 contractor team that includes EADS.

While the GAO deadline to rule on the tanker contract protest is on 19 June, the article reports that the amendment may be introduced regardless of the outcome:

But "no matter what happens with the GAO, if it doesn't stop this, Congress has a responsibility to review this," Dicks told Aviation Week after a House Aerospace Caucus luncheon June 12. "We're going to take whatever action we have to take."

At Tanker War Blog we believe it's go time in the HAC-D. So if you thought there was some rough play before...well you ain't seen nothing yet as both sides will now go to battle over funding for the tanker. When real money is at stake, the gloves come off.

Tanker Funding Fight: Wait until June?

Out today is a Reuters article about Representative Ike Skelton, the Chairman of the House Armed Services Committee, and his call to improve military readiness and the ability of U.S. troops to respond quickly to a crisis.

While he declined to weigh in on the $35 billion aerial tanker contract debate, he did make the following comments:

Skelton said there would undoubtedly be efforts to address the issue during the shaping of the 2009 defense spending bill, but his preference would be to wait until the Government Accountability Office had ruled on the protest in mid-June.

"I would hope to minimize the discussion or the effort until at least the GAO has played out its protest," he said.

Others on the committee, including Ranking Member Duncan Hunter, are on record as being against the contract. Also, many key members on the House Appropriations Subcommittee on Defense are solidly against funding the A330 based tanker.

So while many members might want to wait until the GAO rules in June, there will be significant pressure to act before then. This should make for a lively House of Representatives the next few months.