Air Force Ethics Problems Highlighted In Bid Protest Decision

Lockheed Martin filed a protest against a decision to award Boeing a large government contract. A government official was found to have manipulated the procurement decisions that gave Boeing an unfair edge in the process.

The Department of the Air Force has paid once again for the ethics scandal involving its former Principal Deputy Assistant Secretary for Acquisition, Darleen Druyan.

In the most recent chapter, the Air Force lost a GAO bid protest lodged against the agency by Lockheed Martin over the procurement decisions influenced by Druyan in the small diameter bomb (SDB) program. Lockheed Martin argued successfully to the GAO that Druyan improperly manipulated procurement decisions in the SDB program in such a way that gave Boeing an unfair edge, causing them to win this procurement in 2003.

Lockheed persuaded the GAO that over the course of the 2-year procurement cycle for the SDB program, Druyan improperly manipulated certain of the program requirements and the related evaluation factors to favor Boeing.

Readers may recall that Druyan pled guilty in October 2004 to violating federal criminal conflict of interest laws in connection with her dealings with Boeing as the AF top procurement official.

She was sentenced to serve time and pay fines as a result. Meanwhile, the AF was left to sort out just how many of its procurement actions involving Boeing during Druyan’s tenure were tainted.

As the result of the public disclosure of documents at the time Druyan copped her plea, Lockheed discovered the hanky panky involving the SDB program where it had lost to Boeing. Lockheed filed a protest with the AF, which declined to consider the protest and instead referred it to the GAO. Lockheed Martin was able to overcome the GAO’s normal reluctance to look into a procurement action this late in the game. As GAO noted, “Lockheed Martin’s protest is based on information it first obtained in October 2004…. relating to Darleen Druyan’s criminal conviction and sentencing…. Since Lockheed Martin had no reason to previously know of the information….we view the protest as timely.”

Here’s the heart of the GAO decision finding against the AF:

We briefly summarize here the key points that the record establishes in this protest: Druyun felt “indebted” to Boeing; the SDB program initially contemplated an evaluation of the offerors’ capabilities against moving targets; early in the process, Lockheed Martin was perceived as having a “strength” and Boeing was considered “weak” with regard to the moving target requirements; most of the requirements associated with moving targets and the associated evaluation factors were subsequently deleted; Druyun had significant involvement in the decision making process that culminated in the deletion of the moving target requirements; Boeing was selected for award without consideration of its capabilities regarding the deleted requirements; and the agency is in the process of adding the previously deleted requirements to Boeing’s contract on a sole-source basis.

In an ironic twist, the GAO declined at this time to award Lockheed Martin the entire relief it sought because it turns out that a former high ranking AF general may have gotten a bit too close to Lockheed Martin in connection with its bid on the SDB program. GAO referred this concern to the AF for further investigation and an order to report its findings back to the GAO at which time it will reconsider the question of reimbursement of Lockheed Martin’s bid and proposal costs on this procurement.

It sounds like the Air Force needs to do some serious soul searching on its ethics program and how well it explains the rules to the senior brass.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.