I.

INTRODUCTION

The Air Force rests its submission that Boeing's protest should be denied on the
claim that Boeing merely disagrees with its subjective professional judgment. On issue
after issue after issue, the Air Force dismisses the concerns Boeing has raised by intoning
the mantra that its position reflects "the evaluators' professional and subjective
judgment." It is certainly true that GAO will defer to the reasoned exercise of the
agency's professional judgment. But when the claimed exercise of professional judgment
is contrary to the plain terms of the Request for Proposals (RFP), when it is exercised
disparately, when it is patently umeasonable, the Air Force's judgment is not entitled to
deference. And when, on issue after issue after issue central to the source selection
decision, the Air Force's disregard for the plain terms of the RFP, its disparate treatment
of the offerors, and its patently umeasonable judgments consistently redound to the
benefit of one offeror and to the detriment of the other, the protest must be sustained.

The source selection decision repeatedly violated the terms of the Solicitation in
material respects. These legal errors permit GAO to sustain the protest without a hearing,
but they do not begin to capture the full measure of the Air Force's flawed analysis.
After highlighting some of the most egregious legal errors, we briefly describe a handful
of examples that well illustrate the patently umeasonable judgments and disparate
treatment that pervade the source selection decision.

A. The Air Force Committed Fundamental Legal Errors That Permit GAO to
Sustain the Protest Without a Hearing.

The Agency Report confirms that the Air Force committed basic legal errors by
departing from the clear terms of the Solicitation. These errors undermine the core
structure of the KC-X competition, under which offerors were provided extensive trade
space within which to make tradeoffs of additional capability versus increased costs and
operational limitations. Four categories of these errors are particularly egregious.

1. Legal Errors Related to Mission Capability

Although the Air Force properly determined that both Boeing and NGIEADS met
the objectives for fuel offload and aeromedical capacity, it nevertheless determined that
NGIEADS' proposal was superior to Boeing in these specific areas. As a matter of
contractual interpretation, the Air Force's assignment of major discriminators to
NGIEADS in these areas was clear legal error.

The Air Force erred in awarding NGIEADS a major discriminator for fuel offload
capacity, despite finding that both Offerors met the fuel offload Objective of having the
capability to exceed the Fuel Offload at Radius matrix at all ranges, as depicted in Figure
3-1. PAR, AR Tab 055 at 13. The Air Force argues that the fuel offload Objective-
unlike every other KPP Objective-was not intended as a binary requirement