Federal Judge Finds Evidence of Bias Behind Air Force’s Light Air Support Plane Contract
December 18, 2012 - 11:48 am
Long time Tatler readers may recall that we’ve covered the controversy regarding how the US Air Force has mishandled the contract for 20 light air support aircraft. Two firms competed for the contract, Hawker Beechcraft in Kansas and Embraer in Brazil. Embraer, which had partnered with Sierra Nevada in the US on the contract, is a state-controlled firm that has done business with Iran, but neither of those factors stopped the Air Force from abruptly disqualifying Hawker in November 2011 and awarding the contract to Embraer.
The Air Force has since rescinded the contract with Embraer and re-opened the bidding. Now a federal judge has found that there is evidence of bias in the process that favored Embraer, after Embraer sued to get its contract re-instated. Defense Daily has details of what’s going on.
Given that the Air Force’s initial investigation had uncovered evidence of bias in favor of SNC (Sierra Nevada), it was reasonable at the time for the Air Force to consider that such bias likely affected not only the evaluation of the offerors’ proposals, but also the post-proposal discussions and the offerors’ responses thereto…Thus, the Air Force’s decision to cancel the contract award to SNC and resolicit proposals was reasonable and rational and should stand.
The court also found evidence of the Air Force not cooperating, and at the most extreme, interfering, with a Justice Department (DoJ) investigation into how the service came to its decision to award SNC with the original contract.
The case has almost everything — a program manager showing bias toward one of the potential contractors, an attempt to hide a relevant email from investigators, cherry picking what the service turned over to DOJ, and destruction of records. It looks like a cover-up.
DoJ lawyers also discovered the Air Force destroyed records during the agency’s investigation. The same day HBDC filed its motion for judgment on Feb. 14, a DoJ lawyer learned that some records had been destroyed and took it upon herself to begin examining the relevant archives and shared hard drives for documents, discovering roughly 200 gigabytes of data, some of which was duplicative of the administrative record, some of which were not. DoJ counsel then emailed the program manager instructing him to obtain the hard drives for the data so that they could be analyzed to determine whether they should be produced for the administrative record.
The court said the CDI report also revealed further evidence of bias in favor of SNC in communications between the PCO and SNC. The court said first the PCO appeared to have attempted to ‘broker redactions and/or release of SNC information’ during the collection of the administrative record for HBDC’s protest. The court said secondly, SNC had submitted its FPR without having received a response regarding its complaint about an alleged unfair competitive advantage held by HBDC, suggesting that SNC may have been notified that it was the only offeror in the competitive range. The court said thirdly, despite an agreed plan to notify the offerors of elimination and FPR requests by mail, the PCO also sent an FPR notification to SNC by email, whereas the PCO sent notice of elimination to HBDC by mail to the wrong address, resulting in a delay that prevented HBDC from timely requesting a debrief.
One hates to leap to conclusions, but Embraer is already under investigation by the US Securities and Exchange Commission for possible violation of the US Foreign Corrupt Practices Act — bribery is the usual offense that that act covers. I’m not alleging that that happened here, but it doesn’t look like it’s out of character for the company to try it. The LAS contract is worth about $335 million.
Outside all of that, a few facts ought to be relevant. The Hawker AT-6 would be built within the US, creating about 1,400 jobs. The Embraer Super Tucano would be built mostly outside the US, only creating about 50 jobs here while shipping the rest to Brazil. The US also already uses a version of the Hawker aircraft, the T-6, for pilot training, so it would seem to be a better fit for the AT-6 mission. The LAS will become the main aircraft that Afghan pilots will use in a close air support role in combat against the Taliban. Those pilots will be trained by US airmen. The AT-6 has already been tested by the Air National Guard in the military’s Air Sovereignty Alert system that defends US airspace, and it performed well.