GAO Denies US Aerospace KC-X Protest

The GAO today issued a decision rejecting claims from U.S. Aerospace, the would-be bidder for the Air Force's KC-135 replacement contract that was ejected from the competition due to a tardy bid.

This decision could close the curtain on a sideshow taking place as the Air Force attempts for the third time to conduct a $35 billion KC-X competition fairly. Had the protest yielded an adverse decision for the Air Force, the service's acquisition corps could once again have been turned on its head, setting back a bevy of procurements for years to come. The Air Force released a statement saying it is "satisfied" by the finding. Source selection between Boeing and EADS designs continues and a winner could be announced as soon as the end of next month.

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Government Accountability Office:

DIGEST

1. Agency reasonably concluded that protester's proposal was received after the established closing time where agency's conclusion is supported by contemporaneous email from protester's representative and telephone records, and protester's messenger did not dispute the stated time of receipt at the time the proposal was submitted.

2. The delay accompanying admission of protester's messenger to a secure military facility, and the alleged misdirection by the facility's entry gate guards, were not the paramount cause of protester's late submission of its proposal where protester's messenger did not attempt to enter the facility at the gate designated for entry of non-military visitors, did not seek advance entry approval, and failed to determine the location of, and directions to, the building designated for proposal submission.

3. Protester's proposal was not under government control prior to the time set for receipt of proposals where protester's messenger did not relinquish physical custody of the proposal until after the proposal submission deadline.

DECISION

U.S. Aerospace, Inc. (USAI), of Santa Fe Springs, California, protests the Department of the Air Force's rejection of the proposal USAI submitted in response to request for proposals (RFP) No. FA8625‑10-R-6600 for the KC-X tanker modernization program.[1] The agency rejected USAI's proposal on the basis that it was not received by the submission deadline. USAI's protest challenges the agency's rejection of the proposal on various bases, including an assertion that delivery of the proposal was "intentionally delayed" by Air Force personnel. Protest at 3. As discussed below, we previously dismissed the portion of USAI's protest alleging intentional agency misconduct; our decision today denies the remaining protest allegations.

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