In the latest round of the back-and-forth at the World Trade Organization (WTO) between the United States and the European Union (EU) over airline development and sales the report on Boeing (BA) was leaked to the press and found that the Chicago based company received illegal subsidies from the U.S. Government and four states. In September this finding was also leaked as a preliminary to the completion of the final report.

Earlier last year the WTO had ruled in favor of the U.S. in their complaint about launch aid for EADS’ (EADS:P) Airbus products. Since that time there have been those in Congress trying to rewrite acquisition law and regulations so that the illegal aid to EADS would be taken into account in the upcoming KC-X new aerial tanker decision on which Boeing and EADS submitted bids for the initial $39 billion contract.

The findings by the WTO that both sides provided illegal aid that caused unfair competition to the other should lead to negotiations to settle the matter. The normal WTO punishment of having the losing company pay back the economic affect on the other will probably not happen due to the large amounts involved.

The two decisions may aid the Pentagon in deciding the KC-X contract as it possibly removes the issue from the competition and might limit some chances for a protest by the loser. The Pentagon has made clear for months that it cannot take into account the WTO rulings in their source selection and evaluation hence the attempts by Boeing’s supporters in the legislative branch to change the rules.

Now with both bidders confirmed to have benefited from illegal subsidies of some sort it hopefully will remove the issue and allow a competition based on merits and meeting the requirements as defined by the Air Force and Defense Department.

The House of Representatives winding down the lame duck session voted today to pass legislation forcing the Pentagon to take into consideration in source selection whether one of the bidders has an unfair competitive advantage. While not naming any names the law is oriented towards EADS (EADS:P) bid for the new KC-X aerial tanker program. The law has little chance of being considered in the Senate anytime in the next few days.

This is fallout from the World Trade Organization (WTO) ruling earlier this year that EADS had received illegal subsidies from European nations. This was mainly in the form of “launch aid” loans that would only be paid back if the aircraft were profitable but also included tax breaks and infrastructure funding. The Pentagon has made clear that U.S. procurement law and regulation do not allow these types of rulings to be a factor so Boeing (BA) supporters in the House and Senate have been making efforts to change the law so that EADS will not have a “competitive advantage”.

The WTO has also made a ruling against the European counter claim against Boeing that it had received some aid from the U.S. government.

The KC-X is in this situation as there are currently only two Western companies that are able to build this aircraft. In order to gain any competition with a goal of cost savings Boeing and EADS must be considered. A wild card attempt by U.S. Aerospace teamed with Ukrainian manufacturer Antonov was not considered.

If you think Congress is upset about EADS think about how they would react to an Antonov win no matter how cost effective or capable it would have been.

Until the Air Force makes its source selection decision known this kind of fighting will continue. Protests by the loser are also to be expected as the KC-X saga enters its tenth year.

The well known aerospace analyst writes that based on discussions he has had it looks good for EADS North America to win the current KC-X new aerial tanker competition. He believes that the information accidentally shared by the U.S. Air Force with EADS and its U.S. competitor, Boeing (BA), indicate that the analysis by the source selection board favors EADS A330 MTT based bid.

EADS did win the contest two years ago teamed with Northrop Grumman (NOC) only to have it overturned on protest by Boeing. The Government Accountability Office (GAO) ruled that the Air Force had not applied its own criteria properly in evaluating those bids.

This time around EADS bid by itself and proposed basically the same aircraft. Boeing bid a modified version of their 767 tanker incorporating parts of the new 787 cockpit and other improvements.

Last month the Air Force had to admit it sent information to the two bidders about the others after mixing up the CD’s with data.

In Thompson’s analysis the data showed the Air Force favoring the EADS aircraft. Of course Boeing will have a chance to protest if they really do lose this contract.

In another piece of this very complicated puzzle this latest development may have serious affects on the latest attempt to replace the KC-135 Cold War era tankers.

24 November – Update: The Air Force reportedly reassigned the two persons involved in sending the information to the wrong bidders. They still claim that the error will not affect the contest. EADS has said on record that haven’t ruled out a protest based on this incident.

The Air Force in a recent announcement confirmed that the source selection for the KC-X new aerial tanker won’t be completed until second quarter of Fiscal Year 2011. This was part of a much more important admission by the military that they had accidentally sent evaluation information on Boeing (BA) and EADS (EADS:P) bids to the wrong teams. Boeing got EADS and vice versa.

The computer data files sent to the contractors included pricing data for the two bids. The effect of this error on the whole contest is yet undetermined and the Air Force seems to be trying to push through with the hope that the leak is minimal. Without the companies coming forward to admit to looking at the data there is no way of knowing how much effect this will have on the proposals.

Certainly this adds yet another twist to the ongoing saga that is the KC-X competition and will certainly play a role if there is a protest by the losing bidder.

Rockwell Collins (COL) had a good fourth quarter when they announced their most recent earnings. Overall revenue was up almost eight percent and profit twelve. Like most defense contractors though the company is planning for rougher times ahead as the U.S. defense budget declines.

Rockwell is part of Boeing’s (BA) team bidding for the KC-X new aerial tanker and the CEO, Clay Jones, said as part of the earnings release that they expect the contract award to be delayed.

Expectations were that it would be announced early next month but there have been consistent rumors and stories that this will be pushed off at least a few months as the Air Force evaluates EADS’ (EADS:P) and Boeing’s submissions.

The Air Force has been trying to buy a new tanker to replace the aging KC-135 aircraft now for most of this century. The current competition represents the third attempt and the second using competitive bids.

This past week a study was released prepared by analyst Rebecca Grant on the KC-X program as a whole. Grant is the head of the think tank IRIS.

The report may be found here.

Grant believes that due to budgetary constraints the KC-X buy will be the only new tanker purchased and that the Air Force’s follow on KC-Y and KC-Z increments won’t happen.

She also believes that the use of the aircraft to support operations in the Pacific will be paramount over other planned missions. This drives her to conclude that large fuel capacity and range will be two of the capabilities driving the Air Force’s source selection decision.

Those two factors favor the larger EADS (EADS:P) A330 based system over Boeing’s (BA) 767 tanker aircraft.

If the second and third increments of aircraft are not purchased it would be a blow to both aerospace companies as the Air Force has said that they might be new competitions rather then just buys of the KC-X winner which makes sense as ultimately the Air Force does need to buy a replacement for the KC-10.

Ms. Grant’s thoughts have caused a great deal of thought and comment as the military nears its decision on which aircraft to buy.

First the contract was going to start in November. Then it was an award in November. Now the U.S. Air Force is saying a winner will be announced in the next few months or so.

Using the argument that it is better to do something right not quick the Air Force chief of staff, General Schwartz, did not commit to the November date or even this year.

This is not surprising considering the complexity of the proposals and the history of this contract. To avoid a protest which will cause further delays to buying the new aerial tanker the source selection must be thorough and done in such a way that the loser cannot feel discriminated against.

A protest by the loser be it Boeing (BA) or EADS (EADS:P) is expected but there is always a chance that they will take the loss graciously and it may be hoped their political supporters as well.

The third bidder for the KC-X tanker contract, U.S. Aerospace (USAE) and its Ukrainian partner Antonov, had their protest denied yesterday by the Government Accountability Office (GAO).

The company had filed the protest because the Air Force had said their proposal was delivered past the deadline for submission. U.S. Aerospace claimed that their courier was deliberately delayed and should have been allowed to make the delivery on time.

This decision leaves only the Boeing (BA) and EADS (EADS:P) bids as being considered for the contract. The Air Force had previously said that a decision would be announced around the middle of November but there have been reports that this might slip.

The EADS (EADS:P) subsidiary Airbus built tanker reportedly received its military certification from Spain’s military certification authority, INTA. While the European Aviation Safety Agency (EASA) does certify civil aircraft for many different nations it does not military systems. EADS needed a military certification authority to do that and used Spains.

The A330 MRTT is being built for Australia and the United Kingdom to perform aerial refueling missions. It has also been proposed by EADS for the U.S. Air Force’s KC-X contract as well as some Middle Eastern customers.

Military certification is a step forward in the process of the aircraft being accepted for use by its customers. The program has seen some delays but is moving forward into service with Australia and then Great Britain.

A few months ago the World Trade Organization (WTO) ruled that EADS (EADS:P) had received illegal subsidies from various European governments in the form of launch aid loans and tax breaks. The decision was quickly seized upon by Boeing (BA) supporters who want the Department of Defense and the U.S. Air Force to take the advantage these subsidies gave EADS into account in their source selection for the KC-X aerial tanker.

At the same time the WTO was considering a complaint by European governments that Boeing’s (BA) many years of contracts from the American government also aided them in developing their products and reducing their costs. The results of that case were leaked today and they indicate that the WTO will provide some criticism of the U.S. support.

This then was quoted by EADS’ American allies to reiterate the need for these not to be considered in the decision of who will win the contract to build over $35 billion of new tankers.

Because the rulings will not be exactly even and cancel each other out the argument will still go on even as the WTO leaves the issue. Unfortunately the decline of the world’s industrial base to where there are only two Western companies able to build this type of aircraft have led to this situation.

There is no easy resolution to the problem and no decision by the U.S.A.F. that will placate everybody. Once again the chance of a protest seems to be a given.