[Congressional Record (Bound Edition), Volume 155 (2009), Part 23]
[Senate]
[Pages 31672-31676]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           HEALTH CARE REFORM

  Mr. BURRIS. Mr. President, I rise, of course, to speak on the health 
care legislation.
  The Senate is the greatest deliberative body this world has ever 
known. Since the inception of this body, its Members have practiced and 
perfected the art of compromise. It has been said that politics is the 
art of the possible--and this Chamber is teeming with experienced 
legislators who know how to work with Members of both parties to forge 
a more perfect bill. This means that individual Senators must 
inevitably give ground in the interest of achieving legislation that is 
built on consensus.
  As a body of lawmakers--and particularly as a Democratic Party--we 
have compromised throughout our history to bring about the greatest 
legislative achievements this Nation has known. In the process, this 
Senate has made the country better.
  Today, we find ourselves debating a measure that could overhaul the 
entire American health care system. We stand at this point after nearly 
100 years of discussion and deliberation, stretching from Teddy 
Roosevelt to Barack Obama.
  What has defined us across that century is our commitment as a party 
to the fundamental pillars of health care, all of which have been 
echoed in this recent debate. These values served us well in 1935, when 
the Senate took up a proposal called Social Security. History recalls 
that debate was fierce. It was not without struggle and was not without 
compromise. But in the end, we achieved one of the greatest, most 
enduring public policy successes in American history.
  Thirty years later, these very same values led this party and this 
Senate to take up a bill known as the Medicare Act. Again, that fight 
was not easy, and compromise was necessary to realize our vision. But, 
once again, this body and this party brought historic change to 
America.
  These hard-fought programs have been the valued cornerstone of our 
domestic policy for generations. They define the way we legislate and 
underlie the principle that this government's chief responsibility is 
to its citizens.
  Today, a new generation of Americans and a new Congress find 
ourselves in the midst of another historic debate.
  Earlier this year, a new President was swept into office, full of 
energy and ideas, and armed with a clear mandate to bring real reform 
to a health care system that was badly broken. So, once again, we took 
up the task of fighting for a more perfect health care system.
  Americans all over the country, struggling and suffering, many in 
personal health crises, have looked to us. There is urgency there, and 
this body needs to act.
  Those who need help the most need that help now.
  So let's pass this health care reform legislation, but let's also do 
it right. Let's not pass something just to pass something.
  Everyone in this room is a legislator. We approach our 
responsibilities with the knowledge that our most optimistic ideas must 
often be tempered with a pragmatic reality. In the process of this 
debate, we have all made concessions and we have all compromised.
  My own preference was for a single-payer system. Some of my friends 
on the other side would like to see no reform bill at all. But as a 
body and at least as a Democratic Party, I hope we will stay true to 
those fundamental pillars that have determined our course for the last 
100 years.
  As Mohandas Gandhi once famously said:

       All compromise is based on give and take, but there be no 
     give and take on fundamentals. Any compromise on mere 
     fundamentals is a surrender.

  It was in the spirit of constructive compromise that 10 of our 
colleagues met and worked to forge the new compromise deal we have all 
heard about. I thank them for their hard work. We are all deeply 
invested in this issue. I applaud their willingness to come together at 
the table.
  At this point, the specifics of this proposal are few. As are many in 
this Chamber, I am actually awaiting the chance to examine the full 
details of the proposal. I do have deep reservations, deep concerns, 
about what you have heard up to this point. Until I see more, I can 
only say again what I have said from the very first day of this debate 
so many months ago: I am committed to voting for a bill that achieves 
the goals of a public option, competition, cost savings, and 
accountability. I will not be able to vote for lesser legislation that 
ignores these fundamentals.
  I will continue to fight every day to strengthen this legislation 
until its final moments on this floor. I fully realize how hard my 
colleagues have worked. I know how difficult it has been to get this 
far. My colleagues may have forged a compromise bill that can achieve 
the 60 votes that will be needed for its passage, but until this bill 
addresses cost, competition, and accountability in a meaningful way, it 
will not win my vote.
  The American people most in need of help know we can do better, and 
we must do better.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I wish to share a few other thoughts in 
the 5 minutes I believe I have to speak on a different matter than we 
have been talking about earlier, but it is a very important matter. It 
is the procurement contract, the request for proposals the Defense 
Department has put out in order to request proposals for the Defense 
Department to purchase a

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new tanker for the U.S. Air Force. It will be perhaps the largest 
contract purchase in the history of the Defense Department, certainly 
since World War II. I regret that I must come to the floor today to 
give this speech, but it is important that we do this right.
  Earlier, one of our colleagues, Senator Murray, for whom I have great 
admiration, I understand told NPR:

       All things considered, I have stood on the line in Everett, 
     Washington, where we have thousands of workers who go to work 
     every day to build these planes. I would challenge anybody to 
     tell me that they stood on a line in Alabama and seen anybody 
     build anything.

  Well, we are prepared, as I will explain, to construct the finest 
aircraft for a tanker the world has ever known in Alabama, my area of 
Mobile, AL, at the old Brookley airfield, which was a fabulous, huge 
airfield. It was closed 40 years ago, but the runway and the capacity 
and the location and access by water and rail and interstate are all 
there. It is going to be a fabulous place, and already there is a 
significant engineering center constructed there, and there are plans 
to go forward if and when this contract is awarded.
  I would note that the people of Alabama get a little bit offended 
when people suggest they are not able to produce anything of world-
class quality. I would remind my colleagues that it was in Alabama that 
the Saturn V rocket was developed that took a man to the Moon and that 
virtually everything that goes into space goes through Alabama; that we 
have some of the finest automobile manufacturing plants in the history 
of the world, including Mercedes, Honda, Hyundai, Toyota, all producing 
large amounts of some of the best automobiles in the world. In Mobile, 
have built a new trimaran ship that can cruise at 40 knots and has 
fabulous capability for cargo. It is one of the finest new ships of its 
kind the world has ever known. We have a fabulous workforce second to 
none of which I am utterly proud.
  I would just say one of the complaints I have about the Department of 
Defense's request for a proposal--I have four I plan to talk about, but 
one I am going to highlight now in light of the comment of my colleague 
is that I believe there is an inadequate government assessment of 
acquisition and performance risk. In other words, the government should 
assess how well we can believe the bidders are able to produce the 
product at the price and in the time frame in which they would like to 
see it produced.
  I am so confident the plant in Alabama could be competitive with any 
other bidder, that I believe the government should give this aspect 
higher weight. In fact, they did so in the previous bid process, and 
the aircraft plant in Alabama came out with a better score on risk than 
the one in my colleague's State.
  So there are other matters that are important, but I just wanted to 
emphasize that point. We are ready, able, willing, and anxious to 
produce the finest tanker the Air Force has ever seen. This tanker 
aircraft today is now 50 years old.
  I regret we are having the kinds of difficulties we are in this bid 
process. I respect so much the men and women of the Department of 
Defense, but I do have to say this newly configured bid process is 
dramatically different from before, and I believe it is in the wrong 
direction. I believe it has failed our warfighters. I have to express 
my concerns about it, particularly as reflected in the request for 
proposal that has been sent out to the two bidders.
  My intent here is simple. I will point out a few things that I think 
are significant.
  In essence, the Department of Defense abandoned, out of the blue and 
without serious discussion, so far as I can tell, its decision to 
provide a transformational and game-changing aerial refueling tanker to 
the warfighter. Those were their words. And how has that resulted in or 
was the result of major changes in the request for proposals that have 
been sent out? The bidders are considering those proposals. In doing 
so, the result, I have to say, evidences a clear bias toward one 
aircraft over another. I hate to say that.
  Let me provide a snapshot of what this new RFP does. I asked the 
Secretary of Defense about it at the hearing a few weeks ago. He 
indicated that this process for altering the RFP is still ongoing, but 
I am not sure the Air Force has been listening, so I am concerned about 
it.
  Let me provide a snapshot of what our concerns are. Of the six key 
discriminating features that favored the KC-45 Northrop/EADS aircraft 
over the Boeing aircraft in the previous competition, five of the six 
features were either eliminated or changed to a nonmandatory status in 
the current draft RFP--a bias, I suggest. In contrast, eight features 
of the Boeing aircraft were upgraded in the new draft RFP, which 
resulted in seven of those eight areas favoring their aircraft.
  So what is the bottom line? The very sad conclusion I have had to 
reach is that this closely watched competition was altered with a 
purpose, and that purpose was to favor one bidder over another.
  So we are in a comment period now, and I hope the Department of 
Defense will listen to the concerns I believe are legitimate and to 
ensure fairness in this. Replacing the tanker is the Air Force's No. 1 
procurement priority and has been for quite a number of years. In fact, 
the Department of Defense has indicated they understand this, and I 
think they understand their integrity and the whole acquisition process 
is at stake in this so closely watched and so important bid.
  So I will show this chart. I am going to point out something we call 
a spider chart. It looks a bit like a spider web.
  The green lines, the inside circle lines, represent the capability of 
the existing 50-year-old KC-135 tanker in 11 different category areas, 
such as passengers, fuel offload at 1,000 nautical miles, fuel offload 
capacity, boom envelope, operational availability--all of these 11 
factors.
  The red represents the latest RFP requirements for this new--what 
used to be considered--transformational aircraft. It follows almost the 
same as the current capability. This is really unthinkable to me. It 
follows those capabilities on point after point after point. In some 
areas, it is less capable than the current aircraft that is 50 years 
old.
  The black line represents the capabilities of the Boeing aircraft. 
For example, Boeing's offering would carry 190 passengers, whereas the 
other aircraft, the one that would be built in Alabama if it were to be 
the winner, would carry 226 passengers.
  And so, let me say again that
  I love and respect the men and women of our armed services. But, 
their leadership, at least so far, has failed them on this matter. All 
I have ever asked for is that the DOD choose fairly the aircraft that 
provides the best value.
  Let me outline my concerns with the disturbing actions taken in the 
current tanker draft request for proposal, RFP.
  My intent here is simple. I will outline, through a series of charts, 
how the Department of Defense abandoned, out of the blue without 
serious evaluation, its decision to provide a transformational and game 
changing aerial refueling tanker to the warfighter. This is clearly 
evidenced by the major changes in the request for proposal sent to the 
two potential bidders. Furthermore--and in doing so--the result has 
been a clear bias towards one aircraft over another.
  Let me provide a snapshot of what the RFP does: Of the key 
discriminating features that favored the KC-45--Northrup/EADS 
aircraft--over the 767 Boeing aircraft in the previous competition, 
five of the six features, 83 percent were either eliminated or changed 
to nonmandatory in the current draft RFP. In other words, these 
features are less important to the outcome of the competition.
  In contrast, eight features of the Boeing aircraft were upgraded in 
the new draft RFP which resulted in seven of those eight areas, 87.5 
percent, favoring the 767--Boeing aircraft--over the KC-45.
  What is the bottom line?
  The very, very sad conclusion that one must reach is that this 
closely watched competition was altered with

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a purpose, and that purpose was to favor one bidder over the other.
  The DOD is now in a comment period for this draft RFP for a reason--
to listen to concerns and to ensure fairness in the process.
  Replacing the tanker is the Air Force's No. 1 acquisition priority 
and the Department of Defense's most critical acquisition program. In 
fact, the Department of Defense's integrity in acquisition and 
contracting are at stake.
  This effort has stretched for over a decade and has been consumed by 
controversy, fraud, illegal activity, and political posturing. Let me 
remind my colleagues--both DOD and Boeing employees were prosecuted, 
punished, and some even went to jail over the failed attempt at a sole 
source lease arrangement that would have cost the taxpayers billions.
  Our national security relies on this critical capability--the men and 
women in uniform who protect this country deserve the best value, and 
they deserve a transformational aircraft.
  Let me now turn to some specific concerns.
  DOD's latest acquisition strategy for the KC-X aerial refueling 
tanker replacement competition is, unfortunately, deeply flawed. 
Instead of the modern, multirole, game-changing, transformational 
aircraft that the Air Force has said it wants and needs for the past 10 
years, the Department's draft RFP specifies an aircraft that is 
essentially the same as the existing 50-plus-year-old KC-135.
  This acquisition strategy cannot be justified and the DOD must make 
changes to ensure fairness.
  The draft RFP released by the Department of Defense on September 24 
is significantly different than the previous RFP created by the Air 
Force and released in January of 2007. While the GAO sustained 8 of the 
111 complaints Boeing raised regarding the previous source selection 
process, the Department's initial reaction, as stated to Congress, was 
to fix those 8 flaws, and release a modified RFP to keep the program on 
track.
  So how exactly have we arrived at a completely new draft RFP that 
fundamentally not only changes the acquisition process for the tanker, 
but is unlike any major procurement in the history of Defense 
acquisition?
  The first change is a paramount focus on cost.
  While controlling costs is important, when it becomes the 
overwhelming discriminator it has a negative impact on the capability 
that is produced. Holding cost far above capability, as this draft RFP 
does, will result in an aircraft without the kind of game-changing 
capability the Air Force has consistently requested.
  The new draft RFP has many flaws. While there isn't enough time for 
me to list every single problem, the RFP's flaws can be summarized in 
four major themes:
  1. The evaluation methodology does not consider best value, but 
rather lowest cost.
  2. This results in a significant bias toward a smaller aircraft.
  3. There is an inadequate government assessment of acquisition and 
performance risk.
  4. The wrong contract mechanism is proposed.
  Evaluation methodology is not best value.
  The fundamental tenet of the RFP is the winner will be the lowest-
priced offer that meets a minimum threshold of specified capabilities. 
This is a far cry from the ``value-based acquisition,'' as the 
Department claims and as the warfighter deserves. Additionally, this 
strategy represents a departure from the normal DOD acquisition process 
and goes against the generally recognized public policy standards of 
DOD which seeks the best value and most capability at the best price 
for the warfighter.
  Because the options for the tanker aircraft will be based on existing 
commercial platforms, the ``low cost'' approach provides an inherent 
advantage to the smallest and least-capable aircraft. Because no 
additional credit is offered for additional capability--beyond the 
minimum thresholds of the RFP--additional size and capabilities will 
almost certainly be a negative because they can only come with some 
higher price.
  There is inherent bias in this procurement--beyond the low cost 
approach--that substantially favors a smaller less capable aircraft. It 
is extremely troubling that nearly every single key discriminator from 
the previous competition that would have given additional credit to an 
aircraft with greater than the minimum capability required has been 
neutralized or eliminated under this new RFP.
  The primary measure of tanker effectiveness--the ability to offload 
fuel at range--will not even be considered in the evaluation beyond a 
minimum distance requirement that, incidentally, is equal to the 
current 50-plus-year-old KC-135 aircraft.
  This defies logic.
  The very reason for a tanker to exist, and a key discriminator in the 
previous competition, has now become a ``non-mandatory'' aspect of the 
aircraft. This change substantially benefits the less capable aircraft 
and will result in a fleet of tankers that is no better than what we 
are currently flying.
  I cannot recall a time when the Department of Defense, instead of 
enhancing capability when purchasing a new weapons system, made a 
deliberate decision to procure a new system that is no more capable 
than the system it is meant to replace, in this case a 50-plus-year-old 
aircraft.
  This is especially so where much more capability can be obtained for 
so little cost.
  This RFP change defies previous statements of senior Air Force 
leaders. For example, on November 30, 2005, following his statement at 
the Defense Logistics Conference, current Air Force Chief of Staff 
General Schwartz, who at the time was Commander of the U.S. 
Transportation Command, told reporters that the next tanker ``needs to 
be multi-mission, it cannot be a single-mission airplane.''
  On December 1, 2005, Mike Wynne, who was the Secretary of the Air 
Force, told reporters ``Tankers are not only tankers any more. They are 
going to be multi-mission aircraft.''
  If 4 years ago the senior leadership of the Air Force recognized the 
need for more capable, multi-role tankers, why have we not been able to 
structure an acquisition that reflects that need?
  General Duncan McNabb, Commander, US Transportation Command stated in 
a press briefing on December 11, 2009:

       New KC-X tanker aircraft in the Air Force's inventory today 
     would make the enormous task of surging more US troops into 
     Afghanistan by mid 2010 and then sustaining the entire force 
     there easier. As the Air Force envisions it, it would be ``a 
     very efficient cargo and passenger carrier'' in the war zone, 
     in addition to its primary aerial refueling tasks, due to its 
     ``floors, doors, and defensive systems.'' Instead of having 
     to fly commercial aircraft, which lack defensive systems, 
     into outlying places like Manas AB, Kyrgyzstan, and then 
     transloading their passengers and palletized cargo onto 
     military transports for delivery into Afghanistan, KC-X 
     aircraft could move them directly there, thereby preserving 
     C-17 transports for moving ``rolling stock'' military 
     equipment.''

  The draft RFP does not require any government evaluation of price or 
schedule risk. Standard acquisition practice allows the government to 
adjust the proposed pricing and schedules of the offers based on an 
independent assessment, in order to protect the government's interest 
against an unreasonable ``low-ball'' offer.
  This lack of a price and schedule risk evaluation in the new RFP is 
especially troubling considering that one company--Boeing--has its 
competitors pricing data from the previous competition and can consider 
Northrop's data when developing a competitive position.
  The government should do the prudent thing and evaluate the potential 
price and schedule risk of each offering. A failure to include this 
provision, as was done previously without objection, is an abdication 
of fiduciary duty to the taxpayers, and will undoubtedly result in 
unreasonable bids that will haunt this program for years.
  The business and contracting construct of this competition is simply 
unacceptable. The contracting mechanism used by the Department--an 18-

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year firm fixed price contract--will require industry to assume many 
future risks, including inflation and the risk associated with 
developing a new tanker.
  The new RFP incorrectly assumes that both tankers are fundamentally 
nondevelopmental items. While it is true that they are derived from 
commercial platforms, they are far from nondevelopmental.
  In fact, this idea is inconsistent with the proposed structure of the 
program, which includes at least three years and several billion 
dollars for development. The new RFP will require both companies to 
make significant changes to the baseline commercial aircraft platforms, 
including redesigning the cockpits and fire-control equipment.
  It sounds to me like the Department needs to make up its mind and 
either buy an off-the-shelf product at a fixed price or properly 
structure a development contract. Trying to do both will inevitably 
result in doing neither very well.
  The bottom line is I am baffled as to why the Department changed the 
RFP so substantially.
  Why am I baffled? Let me highlight a few quotes from DOD that 
illustrate my point: On February 29, 2008, at a DOD news briefing 
following the previous award to the Northrop Grumman/EADS tanker, 
General Art Lichte, Light-EE, then commander of the Air Force Air 
Mobility Command, explained why the Northrop tanker was selected:

       From a warfighter's perspective, I can sum it up in one 
     word: more. More passengers, more cargo, more fuel to 
     offload, more patients that we can carry, more availability, 
     more flexibility and more dependability.

  On September 18, 2008, John Young, the Under Secretary of Defense for 
Acquisition, was quoted in the Washington Post as saying that the 
Northrop tanker was selected because it ``provided more tanker 
capability and offload rate and was substantially cheaper to develop.''
  Since then, little has changed to suggest that the capabilities 
valued during the last competition are no longer necessary. It is even 
clearer today that we need an aircraft that is more than a tanker; one 
with enhanced multirole capabilities to meet global challenges, such as 
the President's decision to send an additional 30,000 U.S. troops to 
Afghanistan.
  In fact, before the new and radically different RFP was released, 
very few people associated with the program had any idea that the needs 
had changed.
  During his opening statement in his testimony before the Senate Armed 
Services Committee on March 17, 2009, General Duncan McNabb, Commander 
of U.S. Transportation Command, testified before Congress:

       The KC-X will be a game changer. Its value as a tanker will 
     be tremendous. Its value as a multi-role platform to the 
     mobility enterprise will be incomparable. . . . It will be an 
     ultimate mobility force multiplier.

  In fact, on September 24, 2009, the very same day DOD unveiled the 
new RFP, the Air Force Air Materiel Command released a white paper that 
stated the KC-X must be dual mission capable--able to perform airlift 
and air refueling missions.
  Yet the new RFP values multirole capabilities far less than the 
previous RFP and will undoubtedly result in a less capable aircraft. In 
fact, Air Force Magazine recently quoted USAF General Duncan McNabb, 
Commander of the U.S. Transportation Command as he addressed defense 
reporters on December 9, 2009--just last week. General McNabb stated:

       The KC-X, as the Air Force envisions it, would be a very 
     efficient cargo and passenger carrier.

  According to General McNabb, the Air Force still wants a game 
changing aerial refueling tanker. So not allowing additional credit for 
extra cargo and passenger capacity in the draft request for proposal, 
RFP, makes no sense.
  During a DOD press conference after the new draft RFP was released on 
September 24, 2009, the Deputy Secretary of Defense, Bill Lynn assured 
everyone that the competition would not be a ``Low-Price Technically 
Acceptable approach,'' and would in fact be a ``Best Value competition, 
with both price and non-price factors taken into account.''
  Now that sounds good, and while they can argue its technically true, 
it isn't the whole story. While the RFP does allow for consideration of 
non-price factors, it is a far second to consideration of price. Most 
non-price factors, including the ability to deliver additional fuel and 
cargo, won't even be considered if the price difference in the two bids 
is less than 1 percent.
  Let's think about that for one moment. Under the current RFP 
structure, if one aircraft costs 1.1 percent more than the other--even 
if--it delivers 20 times more fuel and cargo at twice the distance, it 
would not be selected.
  This approach turns a blind eye toward providing the most capability 
to warfighters at the best value for taxpayers. A rational person 
certainly wouldn't use this approach for buying a family a car, so why 
is it being used to buy one of our most critical national security 
assets?
  Is that the kind of approach we want to use to buy tankers that will 
be the backbone of our global posture for the next 50 years? The answer 
should be a resounding ``no.'' Indeed, in the decades to come, the 
ability of this tanker fleet to transport people and cargo may become 
even more important than today. And it should prompt us to ask how we 
got such a bizarre and illogical RFP.
  While the reasons for the dramatic changes have no rational 
explanation, their impact on the RFP is clear. The changes favor one 
company. Following its loss in the previous competition, Boeing filed 
111 complaints about the selection process.
  Although the GAO only upheld eight of these complaints, the 
Department addressed many more of their complaints in the new RFP to 
the disadvantage of the Northrop Grumman offering. These include:
  Boeing complained the methodology used to estimate the refueling 
capability of each aircraft was flawed. The new RFP has adjusted that 
methodology to favor its smaller aircraft.
  Boeing complained fuel costs should be considered over a 40-year time 
period, not the 25-year time period used in the previous competition. 
The new RFP has adjusted the time-period used to evaluate fuel costs to 
40 years, again to favor its smaller aircraft.
  Boeing complained about the schedule risk assessment. The new RFP 
does not include a schedule risk assessment.
  Boeing complained that the bidders' past performance was too heavily 
weighted. The new RFP significantly diminishes past performance.
  Boeing complained that additional credit was given for an aircraft 
that had much higher capability. The new RFP offers no real additional 
credit for exceeding minimum capability thresholds.
  Finally, the price competition has been tainted by the Air Force 
releasing the Northrop Grumman team's pricing data to Boeing following 
the previous competition and now refusing to release Boeing's pricing 
data to Northrop Grumman.
  For these reasons, I am deeply troubled by the Departments' approach 
for selecting the next tanker. If the Department continues down the 
path that it is currently on, warfighters and taxpayers will be done a 
great disservice.
  Mr. President, in closing, I would like to return to my initial 
comment.
  It is clear to me that the draft RFP abandons the Air Force's need to 
provide a transformational and game changing aerial refueling tanker to 
the warfighter.
  And, furthermore, I must reluctantly conclude, it did so with a bias 
towards one aircraft over another. If we continue down the path of this 
draft RFP--without competition--we are moving headlong towards a sole 
source contract where the warfighter and the taxpayer ultimately pay 
the price.
  This will be a stain on the integrity of DOD's procurement process 
that will not be removed for decades. It is not too late. Secretary 
Gates has said the purpose for the RFP comment period is to allow for 
the DOD to correct flaws. The DOD must listen and take action.
  The PRESIDING OFFICER. The Senator's time has expired.

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  Mr. SESSIONS. This is a matter of such importance that I will need to 
speak about it again in the future.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.

                          ____________________