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The U.S. Government Accountability Office (GAO) may have ruled against Sikorsky’s protest of the Air Force UH-1N Huey replacement program, but not before the company extracted a key concession from the Air Force.
That’s according to W. Jay DeVecchio, an attorney who specializes in government contracts, and whose commentary on Air Force procurement language was mentioned by the GAO in its decision on the case.
The GAO announced on May 22 that it had denied in part and dismissed in part the protest filed by Sikorsky, but the agency’s decision was not immediately available to the public as it contained proprietary and source selection sensitive information.
Now that a public version of the decision has been issued, it’s evident that one of Sikorsky’s seven grounds for protest was dismissed because of a clarification letter that was sent by the Air Force after Sikorsky filed its protest on Feb. 12.
Sikorsky had argued that a clause in the program’s request for proposal (RFP) would require offerors to deliver software source code and give the Air Force at least government-purpose rights to that code — in excess of what is permitted by regulation.
However, on March 8, the Air Force issued a clarification letter to all offerors stating that the clause does not require the provision of government-purpose rights in either noncommercial computer software or detailed manufacturing and process data developed at private expense.
The GAO determined that the Air Force’s clarification rendered Sikorsky’s argument “academic,” and because that basis for the protest was otherwise untimely, the GAO declined to consider it.
According to DeVecchio, before Sikorsky protested this aspect of the RFP, the relevant language was “at best ambiguous and questionably legal.”
He described the Air Force’s concession as “a significant victory for contractors,” as “one should fairly assume the Air Force will not in the future be promulgating these [clauses] in a way that suggests relinquishing limited or restricted rights if they are properly asserted.”
Black Hawk vs. Black Hawk
The Air Force UH-1N Huey replacement program aims to acquire up to 84 helicopters to replace the aging fleet responsible for protecting U.S. missile silos and ensuring the continuity of government operations.
Before Sikorsky filed its protest with the GAO, the Air Force anticipated awarding a contract in June. This week, the Air Force said the award would be delayed until the fourth quarter of this fiscal year, or sometime before Oct. 1.
Sikorsky is one of three offerors for the competition, having submitted the HH-60U, a modified version of its UH-60M Black Hawk. Boeing and Leonardo have teamed up to offer the Air Force another new-build helicopter, the MH-139, a variant of Leonardo’s civil AW139.
The third offeror, Sierra Nevada Corporation, has taken a dramatically different approach. Rather than new helicopters, Sierra Nevada is offering the Air Force repurposed, modernized Sikorsky UH-60A Black Hawks from the U.S. Army.
Under Sierra Nevada’s proposal, these “Alpha” model Black Hawks would be acquired through the Army’s Black Hawk Exchange and Sales Transaction (BEST) program, then transported to the Corpus Christi Army Depot in Texas for inspection and conversion into UH-60L “Lima” models.
The newly converted Lima models would then travel to Huntsville, Alabama, for additional upgrades, including the installation of a Garmin G5000H avionics suite in conjunction with subcontractor Ace Aeronautics.
Jack Bailey, senior director of proposal development for Sierra Nevada, described the company’s offering as a “pseudo-partnership” with the U.S government, aimed at maximizing value for taxpayers.
“[It is] in essence using the government as a partner,” Bailey said in a telephone media briefing on May 31. “We are buying from the government, and then we are modifying through the government.”
The cost savings associated with repurposed airframes is one of the proposal’s primary competitive advantages. But Bailey said that Sierra Nevada’s offering is also advantageous to the Air Force with respect to data rights.
“Sierra Nevada as a company had no issues with the government’s position on data rights,” he said. “With our offering, since it’s an offering that already exists in the Department of Defense inventory, the government already owns the data rights.”
According to Bailey, even though Sikorsky is the original manufacturer of the UH-60A, Sierra Nevada would not need to acquire any intellectual property rights from Sikorsky in order to meet the Air Force’s requirements.
Bailey also said that the company’s suppliers, including Garmin, are prepared to provide the intellectual property that the Air Force requires.
That position does not appear to be sitting well with Sikorsky. Another ground for its protest with the GAO was the claim that the Air Force is treating offerors unequally, based on the fact that Sierra Nevada has not approached Sikorsky to secure the intellectual property licenses that Sikorsky believes the contract would demand.
The GAO dismissed this element of the protest as premature, as the agency has previously established that claims of unequal treatment are premature when raised prior to a contract award.
In its decision, the GAO wrote, “If Sikorsky is excluded from the competitive range or not selected for award, it may raise whatever evaluation errors it deems appropriate, including unequal discussions or unequal treatment, at that time.”
Sikorsky declined to respond to specific questions from Vertical for this story, instead offering the following statement: “We have received the complete GAO decision on its recent ruling on our protest and are reviewing it. We remain confident the Sikorsky HH-60U offering is the strongest, most capable and only technically compliant solution for the UH-1N Huey replacement program.”
Boeing, meanwhile, has publicly stayed out of the data rights debate. Boeing spokesperson Jerry Drelling told Vertical, “We appreciate the work done by the Government Accountability Office to expeditiously address and resolve this matter. We now look forward to the conclusion of the procurement and contract award.”