OSLO, Norway — The Government Accountability Office on Tuesday shot down a pre-award protest of the Air Force UH-1N Huey replacement program by Lockheed Martin’s Sikorsky branch.
The defense giant’s helicopter business pre-emptively filed the protest in February due to concerns about the level of intellectual property it would be forced to hand over to the U.S. government if the company’s HH-60U won the competition.
The GAO’s decision will allow the Air Force to stay on track with a contract award, which is planned to occur this June. Sikorsky is competing against a Boeing-Leonardo team, which is proposing a militarized version of Leonardo’s AW139 commercial helicopter, and Sierra Nevada Corp., which is offering to upgrade old Army UH-60Ls.
In a statement, Kenneth Patton, GAO’s managing associate general counsel for procurement law, said that the organization had denied some parts of the protest and dismissed the rest.
“As explained in our decision, the protest challenged the Air Force’s stated interpretation of the RFP in the area of technical data rights, as well as the conduct of discussions. GAO concluded that the protest grounds were either without merit, untimely, or in some cases, premature,” he wrote.
While the decision was not make public on May 22, as it contained proprietary and source selection sensitive information, a redacted version will be made available in the coming weeks, Patton continued.
Sikorsky confirmed that the company had received the decision and is now reviewing its options to determine whether to take further legal action.
“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,” the statement reads. “We remain committed to supporting the Air Force and providing them with a proven, in-production military aircraft for the critical no-fail mission of protecting our nation’s nuclear missile silos and supporting the continuity-of-government mission.”
The HH-60U — a variant of the UH-60 Black Hawk — is widely seen as the favorite to win the competition due to the helicopter’s use throughout the U.S. services and the Air Force’s stated preference in the past to sole source the aircraft.
At the core of Sikorsky’s protest was a disagreement with the government over what type of information constitutes operations, maintenance, installation and training data — informally called OMIT data — which automatically would transfer to the government for its unlimited use.
“The issue there is they can use that however they see fit. Give it to other services, other vendors,” David Morgan, Sikorsky’s business development director, told Defense News in February.
But according to the Defense Federal Acquisition Regulation Supplement, “software source code is not considered as sustainment or OMIT data.”
Sikorsky officials said then that the company had previously filed an agency-level protest to try to address its issues with the Air Force before protesting with the GAO. However, the outcome, they said, did not address their concerns.
If the GAO decided to sustain Sikorsky’s protest, the Air Force would likely have been forced to rework its requirements, adding at least months to the process.
Updated on 5/23/2018 at 2:47am EST to add a statement from the GAO.