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  December 2, 2019 | International, Land

  Navistar’s challenge against U.S. Army over vehicle buys hangs in the balance

  By: Jen Judson WASHINGTON — For over a decade, the U.S. Army has used one source — Oshkosh Defense — to build its Family of Medium Tactical Vehicles, choosing to sole source to the company beyond its initial five year contract rather than reopen competition. Defense company Navistar is challenging the Army's choice to forgo competition and filed a lawsuit with the U.S. Court of Federal Claims in early August. Nov. 26 was to be the day a judge would decide whether the U.S. Army violated the law by continuing to order vehicles from Oshkosh outside of the scope of the contract while avoiding competition. And while a bench trial happened, the judge hearing the case did not make a decision. It is unclear what's next or when a ruling could happen. Navistar decided to sue the Army after it was getting nowhere in its quest to get the Army to produce documents — through a protest filed with the Government Accountability Office — that would show the service's reasoning to continue to order more vehicles from Oshkosh without competition and without proper legal justification. The company contended that the Army did not justify and improperly awarded its most recent sole source FMTV procurement to Oshkosh, and failed to provide proper notice to possible competitors in accordance with federal acquisition regulations and the Competition in Contracting Act (CICA), according to an extensive review of court documents by Defense News. In addition, the Army also ignored a stop work order, which automatically went into effect when a GAO protest was filed. Navistar filed two complaints: One that claims the Army violated the law when it continued to buy Oshkosh vehicles outside of the scope of its contract without holding a competition and another that claims the Army illegally continued to work on production of those vehicles despite a required stop work order that must go into affect once a protest is filed with the GAO. Since 2009, the Army has spent over $6 billion on FMTVs from Oshkosh. FMTVs are used for a wide variety of missions to include transporting capabilities that extend from cargo to missile defense radars. Navistar contends the Army had ample time to compete for follow-on FMTV orders, and the pool was deep with companies ready to provide vehicles that met the service's requirement, but the Army never did. A long saga The saga goes much further back than just the 2019 GAO protest and lawsuit. Navistar successfully protested the Army's initial award to Oshkosh back in August 26, 2009. As a result, the Army reviewed its decision, reaffirmed its selection of Oshkosh and awarded it a contract with a performance period of less than five years, set to expire at the end of 2013. The request for proposals ahead of the original contract award estimated 23,341 vehicles to be delivered over a five-year period. Following that, it was Navistar's belief that the Army would reopen the competition to deliver more FMTVs. Through a series of justification and approvals — five of them — the Army continued to extend the contract through August 25, 2019, arguing each time that it did not have the time to conduct a new competition to meet the service's needs. In its latest J&A in September 2016, the Army justified it needed another 1,744 FMTVs at an estimated cost of $575 million for total contract duration of 10 years. The Army argued that it needed to sole source FMTVs to Oshkosh because it didn't have 24 months that it would take to conduct a full competition to meet urgent requirements, while it acknowledged there were other companies to include Navistar that could build FMTVs. The service also justified the sole source award due to its plans to stop procuring the current version of the FMTV as it prepared to take delivery of a new FMTV variant, which was also competitively awarded to Oshkosh in 2018. Navistar chose not to compete for the new variant, according to court documents. The order in 2016 was to fulfill the Army's remaining needs between the end of the current variant and the future variant expected to be delivered in fiscal year 2020. Navistar again protested with the GAO the 2016 sole source award to Oshkosh for more FMTVs and ended up dropping the protest when it settled with the Army to supply some vehicles to Iraq. Without a J&A or any other documents justifying another order of vehicles, the Army, on June 28, 2019, announced what it described as the award of a $320 million contract modification for domestic purposes and for foreign military sales for the countries of Argentina, Djibouti, Iraq, Lebanon and Romania. The order was for an estimated 1,916 vehicles and extended the performance period of the contract out to 2021, 12 years past the original contract award. The announcement, according to Navistar, never disclosed that the Army had actually already ordered roughly 1,000 vehicles in excess of what was justified in the 2016 J&A. Navistar again filed a protest with the GAO over the orders made without a new J&A, but withdrew its protest in favor of filing a lawsuit in the U.S. Court of Federal Claims when the GAO refused to require the Army to produce relevant documentation justifying the additional FMTVs. It wasn't until the company filed its complaint in federal court, that it was informed by the Department of Justice that the Army had never stopped work to produce the FMTVs ordered in 2019, Navistar reveals in court documents. Beyond the scope When the Army announced a new sole source procurement for FMTVs to Oshkosh in June, it caught Navistar by surprise because the service hadn't issued a J&A, which had been its practice after the original contract period of performance had ended, and is also required by law, the company argues in the court documents. The June announcement came on the heels of the five J&As that had included an extra 4,875 vehicles and $1.4 billion more to Oshkosh outside of the scope of the original 2009 contract and procured without competition, Navistar notes. Navistar also learned that the Army, months prior to June 28, had already placed tens of millions of dollars in sole source orders for hundreds of FMTVs beyond the scope of the 2016 J&A. Navistar argued a new J&A to cover the 2019 orders was needed because the previous J&As only provided enough authority to solve the Army's claimed immediate needs and were very specific in number and delivery time frame and laid out what trucks were needed by which units and where. The company contended that the original contract and subsequent J&As didn't and shouldn't provide the Army with “a blank check” to continue buying more vehicles without justifying competition. And it argues that the Army, three years beyond 2016, had ample time to prepare to compete for remaining FMTV orders. A contract or a blank check? While the Army's arguments are sealed under a protective order and not available for public review, Oshkosh argued in a response to Navistar's complaint, that the original 2009 contract was a “requirements” contract considered valid through August 25, 2019, for any orders placed. The J&As were essentially just amendments to the original contract. Navistar disagreed and argued that each subsequent J&A should be considered the binding contract and that previous contracts are expired. “CICA does not contain an exception to competition simply because a contract extension involves a requirements contract. To conclude otherwise would gut CICA's requirements," Navistar added. Oshkosh argued that the Army was required to fulfill all of its needs for the FMTV A1P2 through the Oshkosh contract in whatever quantity became necessary until the contract expires. The company also argued that the contract ceiling value had not been exceeded even with the 2019 orders. Oshkosh also argued that Navistar misinterpreted the difference between the ordering period under a contract and the delivery period. The company claims the contract covers the ordering period and not the delivery period, which can extend beyond. Navistar argued that the September 2016 J&A timeline covers the entirety of the contract to include delivery of the vehicles. Oshkosh also contends that the Army alerted all offerors in the original competition that except for monthly and annual limits there is no minimum quantity and no maximum of vehicles that the Army can order. And Oshkosh stated that the number of vehicles laid out in the Army's contract and subsequent J&As were just “estimates” and not a ceiling for orders. Additionally, any maximum ceiling just means a company isn't obligated to honor any orders placed above that level. For Navistar, Oshkosh's interpretation goes against the core of the Competition in Contracting Act. “These J&As do not contain any rationale that would enable the Army to procure an indefinite quantity of Oshkosh vehicles for years into the future - they only provide enough authority to solve the Army's claimed immediate problem of requiring vehicles quickly before a competition can be performed,” Navistar argues. The amendment Deviating from its normal course, the Army retroactively revised or amended the September 2016 J&A in early June instead of issuing a new J&A, scratching out original numbers and costs and replacing them with new numbers and new cost estimates. The amendment was made at the request of the Army's director of policy only after orders earlier in 2019 were discovered to have gone beyond the scope of the 2016 J&A. According to CICA, agencies are not allowed to avoid competition requirements by using the device of a contract modification. The Army did not notify potential offerors of the amendment and claimed, according to Navistar in its response to the court, that the only reason for the amendment was to alert Army leadership of the change. “There is no requirement for the Army to amend a J&A as a method of notifying its own leadership about procurement actions,” Navistar notes. Additionally, Oshkosh argued in its response to Navistar, that the director of policy's request in an email to amend the J&A because orders had fallen out of the scope, was just “the author's view.” Navistar writes, “The Army's attempt to authorize its prior illegal actions along with the Army's official position at the time the amendment was executed (that its sole source actions were “beyond the scope” of its earlier J&As) are damning indicators that the Army failed to justify its 2019 sole source contract action and that it knew its actions were wrong." Army didn't hit pause It's commonly known in defense acquisition that when a GAO protest is filed, work must stop on any contract award at issue until the GAO renders a decision roughly 90 days later. But the Army didn't stop Oshkosh from ordering parts and beginning work to build vehicles wrapped up in the Navistar protest filed July 8. The service doesn't dispute this fact, according to court documents. Navistar was not made aware the Army had continued to execute the disputed sole source orders until it filed its lawsuit at the court. Once alerted by a DOJ attorney that the Army had not stopped working, the company issued a separate complaint addressing the Army's failure to stop working on the contract in accordance with the law. The Navistar complaint states the Army continued to work in secret and did not alert the GAO or Navistar that it was proceeding with the performance of the protested contract. The Army didn't take any action to override the requirement to stop working on roughly 1,365 vehicles covered under the protest. The Army did stop work on 75 vehicles destined for Iraq and Djibouti, but that did not happen for days after the protest was filed with the GAO. The service “inexplicably”, according to Navistar's response to the Army's sealed arguments, believed in “good faith” that the only vehicles in dispute were the 75 vehicles that were bound for Iraq and Djibouti. Navistar states that the administrative record “contains no explanation, documentation or reasoning” as to why the Army failed to stop work. “The Army cannot claim ignorance of its legal obligations (as it appears to be doing) in order to avoid the consequences of its statutory violations,” Navistar argues in its response. The service's argument, according to Navistar's response, focuses on a July 12 phone call it had with Navistar's defense counsel where it claims that the focus of the call was on Iraq and Djibouti requirements, but includes nothing related to it in the administrative record provided to the court. Navistar lays out that the stop work order for the 75 vehicles came at 10:15 a.m. on July 12 before the 10:30 a.m. call with Navistar's counsel. The call was scheduled at the request of the Army's counsel and Navistar's lawyers were advised to come prepared to address the number of FMTV vehicles that it could produce on an expedited basis and the schedule under which it could deliver. According to a declaration submitted to the court, Navistar's lawyers said the Army's counsel offered to try to resolve the protest by giving Navistar contracts to provide vehicles for Iraq and Djibouti. Navistar said it would not agree to a resolution unless the Army agreed to have Navistar provide a more substantial volume of both domestic and foreign military sales vehicles. The Army's lawyers said they couldn't agree with that and indicated they would have to proceed with the protest. And while Iraq and Djibouti were discussed, “the Army could not have reasonably come away from that telephone conference with such a belief,” that the protest only covered those 75 vehicles, according to Navistar's response. To Navistar, it was clear from the beginning that its protest covered all orders in 2019 made beyond the scope of the 2016 J&A. https://www.defensenews.com/land/2019/11/27/navistars-challenge-against-us-army-over-vehicle-buys-hangs-in-the-balance/

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  March 31, 2020 | International, Aerospace

  FVL Q&A: 7 Leaders On The Future Of Army Aviation

  New Future Vertical Lift aircraft are just part of the solution. So are new tactics and technology upgrades for existing helicopters. By SYDNEY J. FREEDBERG JR WASHINGTON: Drones. Helicopters. Networks. Revolutionary future aircraft. Pressing current missions. Every week, the seven senior officers of the Army's aviation community get together – in person or virtually – to check their collective bearings on all these issues and adjust their course into the future. Last month, I had the privilege of speaking to all seven as part of that weekly meeting. The “six-pack plus one” represents institutions across the Army: Maj. Gen. David Francis heads the helicopter training “schoolhouse” in Fort Rucker, Ala., formally known as the US Army Aviation Center of Excellence. Maj. Gen. Todd Royar heads Army Aviation & Missile Command (AMCOM), headquartered at Redstone Arsenal, Ala., which supports maintenance and sustainment Army-wide. Brig. Gen. Michael McCurry is director of Army aviation on the Army's headquarters staff in the Pentagon, under the Deputy Chief of Staff of the Army for Operations, Plans, & Training (G3/5/7). Brig. Gen. Allan Pepin leads US Army Special Operations Aviation Command (USASOAC), which handles the unique air support needs of special ops forces. Col. Robert Barrie is the Deputy Program Executive Officer for PEO Aviation, the Army's aviation acquisition organization; he was standing in for the PEO, Patrick Mason. Mr. Geoff Downer directs special operations programs at Army Aviation and Missile Command. He's a member of the Senior Executive Service, making him the civilian equivalent of a general. Brig. Gen. Walter Rugen – the “plus one” added in recent years to the longstanding six-pack – heads the newest organization on the list: the Future Vertical Lift Cross Functional Team (FVL CFT) at the 17-month-old Army Futures Command. “If we have a failure, we have a culture where anybody in the six-pack can raise a red flag of concern,” Brig. Gen. Pepin said. “And if there's concern among the six-pack, we're willing to tell the senior leaders early, so we do not go down the road of lost investments.” We've used choice pieces of this hour-plus interview in our Future Vertical Lift articles so far, but as we wind up our FVL series, we wanted to give our readers the chance to hear from these leaders at greater length, in their own words (edited for clarity and brevity). Gen. David Francis Maj. Gen. David FRANCIS Commander, US Army Aviation Center of Excellence, Fort Rucker, Ala.: Speaking with you here today is what we affectionately refer to as the six-pack-plus-one. It's the senior officers that affect every aspect of Army Aviation. Oftentimes in aviation, we focus on material piece of this, just because of the cost – but you should understand that there are multiple things happening continuously. It's more than just the airframes themselves. There's a whole host of things that we look at, from potentially changing some of our infrastructure in terms of hangers and so forth to accommodate Future Vertical Lift, to how are we going to train? Brig. Gen. Allan Pepin Brig. Gen. Allan PEPIN Commander, US Army Special Operations Aviation Command (USASOAC): Tactics, techniques, and procedures alone won't allow you to fly into a contested environment and survive. And using technology alone will not let you survive. It has to be a combination of both technology and how we train. FRANCIS, Aviation Center: In counterinsurgency operations, the threat has allowed us to operate at altitude, above 1,000 feet, routinely. As we look to large-scale combat operations, we know that the threat will drive us lower [i.e. to evade radar]. That changes the way we train to fight that fight. When we operate in COIN, we operate in smaller elements [i.e. two helicopters or four on a mission]. When we get to large-scale combat operations, we have to operate more at a battalion level [i.e. 18-24 aircraft]. That means that what we have to be able to do, regardless of the platform, is train to that level of proficiency. Not only are we training our aviation forces, we're training as part of a combined-arms team — with ground-maneuver elements, with fires, with cyber, and all of the multi-domain things that we're going to bring to bear in a fight. We are also working, for the first time, on a distinct Aviation supporting concept to talk about how Aviation will fight and contribute in Multi-Domain Operations in 2028. This will all inform the Army concept, which will in turn inform the joint concept that is being written at the joint staff level as we speak. Brig. Gen. Walter Rugen Brig. Gen. Walter RUGEN Director, Future Vertical Lift Cross Functional Team (FVL CFT), Army Futures Command: We are converging with the other services. It's Joint All Domain Operations, no matter the domain. [The official domains of military operations are land, sea, air, space, and cyberspace – ed.]. We need an interface to communicate critical data, whether that data is sustainment or in the tactical operations realm. When you look at our lines of effort – the FARA [Future Attack Reconnaissance Aircraft], the future UAS [Unmanned Aerial Systems, i.e. drones], FLRAA [Future Long-Range Assault Aircraft] — those are important. But it really is the ecosystem that they bring. FRANCIS, Aviation Center: We know that as we go into a Multi-Domain Operations fight, our enduring fleet – the fleet that we have today, which consists of UH-6OM Black Hawks, AH-64E Apaches and CH-47F Chinooks – stays with us into the 2040s. So not only are we concerned about how we get to Future Vertical Lift, and the capability that brings, we're doing targeted modernization to our enduring fleet. What we have to do is improve our stand-off and our survivability with the introduction of some technology that will be available prior to the actual FVL platform, like the Long-Range Precision Munition and Air-Launched Effects [i.e. multi-purpose mini-drones]. Those combined, we think, will keep us very, very competitive in that [anti-aircraft] environment until we get the increased speed and survivability of our Future Vertical Lift platforms. RUGEN, Futures Command: When we look at ALE and Long-Range Precision Munition, what we're finding, in our modeling and our experimentation at Yuma last year, is you really generate that stand-off and overmatch against threats. We can stay outside their weapon engagement zone and put effects on them. Air-Launched Effects are what is going to find and fix these threats, and then what the Long-Range Precision Munition is going to do is finish that threat. In the Presidents' Budget [request for] 2021, there's $152 million dedicated to getting Spike N-LOS missiles into up to three Combat Aviation Brigades in the swiftest possible manner. We're currently projecting that it would be an FY22 initial capability. We're currently projecting that it would be an FY'22 initial [operational] capability. But that's just our initial increment of the Long-Range Precision Munition. We will follow that on with more detailed requirements to fix some of the challenges that we see already with Spike [and] improve upon that capability. FRANCIS, Aviation Center: Another example is the ITEP [Improved Turbine Engine Program]. That's going to be the engine that goes into FARA. It's also going to be retrofitted onto our UH-60 and AH-64 fleet. That's an extremely successful, well-funded program that is going to affect both of those fleets. Another is maintenance. Col. Barrie was the previous program manager for the CH-47. He initiated a process for the CH-47 fleet that is starting to bear results today in reducing the maintenance burden. We're looking to expand that across both our attack and utility fleets as well. Col. Robert Barrie Col. Robert BARRIE Deputy Program Executive Officer, PEO Aviation: We're finding ways that we can better leverage our investment dollars in the future. We balance the imperative that we have to modernize [with FVL] and the imperative that we have to maintain the readiness of the enduring fleet. When we're modernizing towards a future capability, are there opportunities [for spin-offs] that can benefit the enduring fleet? In similarly, shame on us if we are doing anything on our enduring fleet that does not reduce the risk for the development of our future fleet. For example, there's the Aviation Mission Common Server. We can now have processing capability that is government owned and the cost will be significantly reduced. As we go forward, we want to reduce risk on whatever we wind up doing for processing capability on our future fleets, but, in the near term, this allows us a processing capability that we have significantly more control over. Geoffrey Downer Mr. Geoff Downer Director of Special Programs, US Army Aviation and Missile Command (AMCOM): How do we miniaturize components and gain capability on these other aircraft? We're working on degraded visual environments, electronic counter measures, terrain following, terrain avoidance. We're losing a lot of aircraft, and about 49 percent of our fatalities, due to degraded visual environment landings [i.e. when the pilot can't see clearly]. So we're actually working to put a degraded visual environment system on the aircraft. The idea is that they use LIDAR and IR cameras, so when the pilot is landing in a brown-out situation, he can look down and have a synthetic display that shows exactly where the obstacles are, with cues to where he can land and where he can't land. We've done testing, and the feedback from the testing is absolutely remarkable. We believe that this is going to add survivability to our enduring fleet. RUGEN, Futures Command: [That said], at the end of the day, we've squeezed everything we can out of these aircraft that were built in an industrial age, a very analog age. We want survivability in those very contested large-scale combat operations [in the future]. We want to be lethal. We want superior reach, so we want speed, range and endurance at range, in our next generation fleet. That's the aspect that the enduring fleet doesn't bring. In our survivability studies, with these advanced rotor craft configurations, we basically saw large percentage increases in survivability, from 24 percent to, in some scenarios, nearly 50 percent more survivable — just based on physical characteristics of the aircraft [i.e. not factoring in new electronics, tactics. etc.] Once our penetration force moves forward, we will generate joint force freedom of maneuver [i.e. not just for the Army, in other words, but for all the services] and our enduring fleet can now start coming forward to help us. Brig. Gen. Michael McCurry Brig. Gen. Michael MCCURRY Director of Army Aviation, Office of the Deputy Chief of Staff of the Army for Operations, Plans, & Training (G3/5/7): Once we've kind of fractured the Anti-Access/Area Denial piece in Multi-Domain Operations, then we're able to exploit using some of our enduring fleet systems. That overlap of new and old capabilities — that's not new. I fought in Desert Storm. I flew in OH-58 Kiowa helicopter [which first entered service during Vietnam] and I was teamed with an AH-64 Alpha [which entered service in the 1980s]. We've got to look at, where are the most critical spots to bring capability to first? We will outfit those units [with FVL] first, and then we'll cascade those capabilities throughout the Army. Gen. FRANCIS, Aviation Center: As we always done as Army Aviation, you can't field it all at the same time. So there's a sequence to the fielding plans that are developed based on priorities leveled by the G3 [staff] and the Army. RUGEN, Futures Command: We want it to be backwards and forwards compatible. We have to be able to extend the network forward and integrate it in a denied environment [i.e. in the face of enemy jamming and hacking]. We've done high-fidelity modeling about how to operate in that environment, with waveforms and architecture that will be resilient. Then we followed that up with an experiment in conjunction with our Special Operations partners up at China Lake. We called it A3I: architecture, autonomy, automation and interfaces. That system architecture [has] open systems, interfaces, and gateways, so we can push data machine to machine. We're refining our data formats to auto-populate nine-lines [i.e. calls for urgent medical evacuation], calls for fires [i.e. artillery and air strikes], our production, exploitation and dissemination of intelligence.” Really, the brains behind this is really been our SOF [Special Operations Forces] partners. DOWNER, Special Programs: We set up this demonstration in September of last year, using a Black Hawk [helicopter], a Grey Eagle [drone], and a Small Glide Munition [guided bomb]. SOF is still involved in this, we're still using our team, our resources, and the technology that we developed [to build] the network in the sky. RUGEN, Futures Command: Then, ultimately, probably one of the hardest things we're going to do is affordability. That gets into our sustainment and logistics concept. Long-term, 68 percent of our total cost of ownership is the sustainment of the fleet. Then-Brig. Gen. Todd Royar during a 101st Airborne Division exercise. Maj. Gen. Todd ROYAR Commander, Army Aviation & Missile Command (AMCOM) In our current systems, Army Aviation has done a phenomenal job of leading the Army on condition-based maintenance. We are pretty far out there about collecting data and knowing when something is going to fail. However, we did that by platform, and each individual platform uses a different system to be able to do that. As we move forward, the intent is to go ahead and make sure that we have a common platform for condition-based maintenance. We think this will fundamentally change how maintenance is done, which will ultimately drive down cost. In the draft documents [on FVL], we have put the hooks in there to make sure that industry knows that that is going to be a requirement. When we send out the proposals to industry, we will direct that certain things be common as far as condition-based maintenance is concerned: what they measure, how they measure it, how the ones to zeros are holding, so that the unit can get that same data, regardless of whether they're looking at FARA, FLRAA, or one of our enduring systems. That effort is a combination, primarily, between the PEO and my office. We have touchpoints with Future Vertical Lift, to make sure that for the new systems, those requirements are written in. This will be a component of MOSA, the Modular Open Systems Architecture. RUGEN, Futures Command: The number one challenge we have with MOSA is discipline and management. What allowed the enduring fleet of aircraft to wind up with different architectures [is] there was not a driving central body that said, “this is the architecture that you are going to go with.” With MOSA, we have that. It really comes down to defining that government standard, and defining that government interface, and then holding to it. The PEO has led the charge with the architecture control working group, meeting quarterly, with industry participating. This is aligned with the Network CFT [Cross Functional Team]. PEPIN, Special Ops: We have to be able to adapt quickly, and that MOSA environment is key. We have to break away from just doing more hardware add-ons to platforms, because it takes an incredible amount of time. [With the Modular Open Systems Architecture], all that's just a software upgrade, you reboot and turn it back on again. You can do it at the speed of need. https://breakingdefense.com/2020/03/fvl-qa-7-leaders-on-the-future-of-army-aviation

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  September 15, 2021 | International, Land

  UK industry team demos new counter-missile protection for armored vehicles

  A Leonardo-led, U.K.-based industry team has demonstrated an active vehicle protection system that includes soft and hard kill options for the British military.