Another investigation may be launched before the US Air Force can award the long-delayed KC-X contract for new tankers.
Seven US senators signed a letter on 27 January calling for the Department of Defense's inspector general to open a review on the "fairness and lawfulness" of the USAF's evaluation process.
The lawmakers' request - led by Boeing supporter Sen Maria Cantwell of Washington - came less than 3hr after a hearing by the Senate Armed Services Committee adjourned without resolving a key new question about the controversial KC-X competition.
The senators repeatedly asked two witnesses if a mistake by USAF officials that sent proprietary documents to the wrong bidders could give one bidder an unfair advantage.
Neither panelist - DOD cyber crime director Steven Shirley and USAF Maj Gen Wendy Masiello - could answer the question, saying they are not directly involved in the evaluation.
"Today's hearing did not get at the core of the problem," Cantwell said in a statement.
The shipping mistake meant that an EADS North America employee opened a file containing the USAF's interim score on a key aspect of Boeing's proposal. Boeing received the same file from the USAF with EADS' data, but did not open it.
Shirley told the senators that a forensic analysis showed the file remained open on the employee's classified laptop for about 3min. For most of that time, the employee said he left the room to initiate a process to secure the compromised data.
The USAF attempted to "level the playing field" after the mistake by providing both bidders with the same sheet that was opened by EADS. But some senators questioned whether that action would be enough to make the process fair.
"It seems to me it could be an issue whether or not the exchange of the same information advantages one party or the other," said Sen Carl Levin, chairman of the committee. "The intent to level the playing field is clear. The attempt to do that is the right thing to do. But whether it succeeds or not is a different issue."
But other senators who have supported EADS' bid for the contract defended the USAF's process. Sen Roger Wicker, of Mississippi, said neither company should have an advantage due to the mistake.
"It wouldn't matter if the EADS employee had looked at that for 3hr or for 3 days," Wicker said. "Each company now has that one little bit of information from the other company. They've had it, and they could analyze it until the wee hours of the morning. Is that correct?"
"That's correct, sir," Masiello said.
Sen Sherrod Brown, of Ohio, challenged the basis for calling a hearing in the absence of a protest filed by other competitor because of the USAF's mistake. "I'm not quite sure why we're actually here."
But Boeing's supporters in the Senate remained alarmed. Some, including Sen Claire McCaskill of Missouri, used the hearing as a platform to criticize an acquisition process for KC-X that ignores what she calls illegal subsidies provided to Airbus.
"We've got foreign nations that are subsidizing companies and that's not relevant to our competition," McCaskill said. "That just doesn't make sense to me."
The letter that Cantwell sent to the DoD inspector general, however, focuses on the question of whether EADS received an advantage over Boeing.
"It is essential that we have the non-redacted version of the internal Air Force investigation that was conducted after the data breach as well as all relevant documents," Cantwell wrote. "Given the importance of the KC-X competition, we really do need to get down to the bottom of what happened."