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Pentagon’s Tanker Decision Should Spur Congress

When the Air Force made its highly controversial decision to award the $35 billion KC-X Next Generation Aerial Refueling Tanker contract to the European Aeronautic Defence and Space Co. instead of to an American company, most defense analysts and Members of Congress were shocked, and the American public was rightly outraged. Once the dust settled, two clear paths became evident to address this dangerous decision.

One path is the ongoing protest before the Government Accountability Office. A competitor bidding for a government contract has a legal right to ask whether the rules of the competition were appropriately followed. The GAO, however, examines only a very narrow aspect of contract decisions. The GAO cannot examine whether the decision is good for our nation, the right choice for our warfighter or fair for American workers and taxpayers.

The second path in addressing this decision is Congressional action. In this highly charged atmosphere of the KC-X tanker contract, some in the Department of Defense have outrageously suggested that Congress does not have a role to play in the acquisition world — somehow suggesting that Congress should just rubber-stamp bureaucratic decisions.

As an independent branch of government, Congress has a responsibility to consider a wide range of issues that the Pentagon and the GAO were either unable to consider or chose to completely ignore. Some of the issues Congress must consider are the unlevel playing field that exists for American workers, the illegal subsidies that EADS uses to artificially lower its costs, the impact to the defense industrial base and the danger this contract poses to America’s national security. Congress must protect the interests of the warfighter and the American people.

Congress is not a rubber stamp. Under Article 1 of the Constitution, Congress has responsibility to provide for the common defense and the power of the purse. This gives Congress clear responsibility in defense acquisition decisions.

Under acquisition rules, the Pentagon waives, at a minimum, the Foreign Corrupt Practices Act, Cost Accounting Standards, International Traffic in Arms Regulations, the Buy America Act, and the Berry Amendment for foreign corporations based in countries DOD chooses to exempt, which include almost all of industrialized Europe. This creates a significantly unlevel playing field for American workers.

In addition, DOD did not account for illegal subsidies provided to foreign companies in acquisition competitions. It is astounding that, while the U.S. trade representative actively and fervently pursues just actions against EADS for illegal subsidies, the Air Force would award a $35 billion contract based on acceptance of those same illegal subsidies.

Due to these illegal subsidies and other dubious actions of Airbus/ EADS, McDonald Douglas Aircraft and Lockheed Aircraft were pushed out of the heavy jet market. The current target is the only remaining heavy jet manufacturer in America, and yet the department chose not to consider these illegal subsidies in the KC-X competition.

The Pentagon chooses to ignore industrial base and national security concerns when making acquisition decisions. However, this is done only at our own peril.

America must not become a nation that is unable to produce the equipment essential to its safety and security. With the loss of this tanker contract and the impending end of the C-17 line, no domestic manufacturers will be producing large military aircraft. We cannot allow the jobs and know-how that are essential to our national defense to be lost.

Congress must address these issues that the Pentagon ignored and the GAO cannot consider. Because DOD has abdicated its responsibility in the KC-X competition, Congress must now act. It has a responsibility to examine the true facts about the KC-X competition, uphold its constitutional role, and make its own independent decision.

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