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Apogee Consulting Inc

German Company Tripped-Up by False Claims Pays $9.1 Million to Settle

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Following on the heels of yesterday’s story of Verizon’s FCA settlement comes today’s story about the German security firm, Securitas GmbH Werkschutz (Securitas). The U.S. Department of Justice announced on April 5, 2011, that Securitas agreed to pay the US Government €6,529,042 (US $9.1 million) to resolve allegations that it billed the U.S. Army for hours not actually worked guarding Army installations in Germany.

According to the DOJ press release, Securitas had filed claims against the Army in the U.S. Court of Federal Claims, “seeking additional compensation under one of the contracts at issue.” The press release valued the Securitas claims at $5.7 million and referenced the case Securitas GmbH Werkschutz v. United States, Nos. 07-255/6/7C (Fed. Cl.). As part of its defense, the U.S. filed counterclaims alleging fraud under the False Claims Act, “other anti-fraud provisions, and common law.”

Apparently, the U.S. counterclaims scared Securitas. In addition to paying to settle the fraud charges, Securitas also agreed to dismiss its claims against the Army, according to the press release.

The lesson here is that companies filing suit against the U.S. Government need to make sure that their own house is in order before proceeding.

 

Verizon Pays $93.5 Million to Resolve False Claim Suit

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Sword_of_Damocles

On April 5, 2011, several related things happened, according to this article at the Legal Times blog.

  • A qui tam suit alleging violations of the False Claims Act was unsealed in U.S. District Court in Washington, D.C.

  • The Department of Justice announced its intention to intervene in the whistleblower’s suit.

  • Verizon and the DOJ entered into a settlement agreement, wherein Verizon agreed to pay $93.5 million, but denied any wrongdoing.

Looking at the original qui tam complaint via the link helpfully provided by the article, we noted that the allegations concerned MCI/Worldcom, which was acquired by Verizon in 2006, and invoices submitted to the General Services Administration (GSA) under the telecommunications contracts FTS2001 and FTS2001 Bridge. According to the complaint—

MCI overcharged the United States by submitting invoices for payment to the United States for certain surcharges including certain federal, state and local taxes that it is prohibited from charging the United States under Federal Acquisition Regulations (FAR) and the FTS2001 Contract.

Specifically, the relator, Mr. Shea (a former Deloitte telecommunications consultant), alleged that Verizon violated FAR 52.229-04, which was incorporated into Verizon’s GSA contracts. Despite the limitations of that contract clause (and other related contract language), Mr. Shea alleged that Verizon billed the GSA for “Federal Regulatory Fee surcharges, state sales, excise and utility taxes; and surcharges [including] public utility commission fees; … state “deaf taxes;” state and local gross receipts taxes; business license fees; 911 taxes; … ad valorem taxes…”

The settlement agreement states—

This Agreement represents a compromise to avoid continued litigation and associated risks and is neither an admission of liability by Verizon nor a concession by the United States that its claims are not well founded.

Interestingly, while Verizon asserted that it was entering into the settlement agreement in order to“avoid .. risks,” the settlement agreement—by its express terms—does not eliminate Verizon’s risks associated with criminal liability or suspension/debarment proceedings. So we have difficulty fathoming what risks Verizon thought it was mitigating ….

Here’s a link to the official DOJ announcement. It’s not every day that that the government’s attorneys reap nearly $100 million in contractor payments, but the announcement is (deliberately?) understated. The most strident statement is the following—

‘A government contract is not a blank check,’ said U.S. Attorney Ronald C. Machen Jr. ‘Contractors who overbill the government will be aggressively pursued and required to make the taxpayers whole. This $93 million recovery should make contractors realize that we are firmly committed to ensuring the integrity of corporate billing practices with respect to government programs.’

Well, yes. We contractors do realize that billing practices are rather important, and that the False Claims Act always looms, like the Sword of Damocles, over our heads. Thanks for the reminder.

And thanks to Verizon, for the object lesson that government contractor compliance failures tend to be on the very expensive side, such that investments in compliance mechanisms and internal controls tend to pay for themselves.

 

Raytheon Builds on Supply Chain Management Successes

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Reminder: Our blog articles are neither sponsored, sanctioned, nor endorsed by The Raytheon Company nor any of our clientele.

From time to time we like to remind readers that even the most compliant cost accounting and contract management means little if the firm’s portfolio of projects is executing poorly. Who cares about FAR and CAS if your project/program is behind schedule, over budget, and missing key quality and technical specifications? Companies that fail to focus on executing the project/programs they have quickly find that it’s difficult to win new work, and when new work dries up even the accountants need to find new employment. Every back-office bean-counter needs to remember that it is the programs that keep people employed.

Once upon a time we were part of a dedicated group focused on examining effective project/program management, and two truisms emerged from our time with that group:

  1. The current environment in which aerospace/defense programs are being executed is significantly different from the environment in which such programs used to be executed during the Cold War and the Space Race.

  2. Many A&D companies—perhaps the vast majority of companies—not only have failed to make the necessary management changes to address the impact of the changed execution environment, they have failed to recognize the significance of the changes.

One of the environmental changes with the most impact to program execution is that the execution of the project/program has migrated from personnel employed by the prime contractor to personnel employed by first-tier (and lower tier) subcontractors. Thus: the line between project/program management and subcontractor/supplier management has blurred and it may be accurate to say that the distinction no longer matters. We would go farther and say that continuing to make that distinction may actually be counterproductive to effective project/program management.

So, if project/program execution is important, then so is subcontractor/supplier management. In fact, one of the other truisms we learned during our time looking at the issue is that supply chain management may well be the key to program execution success. Which is why we are interested in how companies are transforming their historic supply chain management practices to address issues in the current project/program management environment.

To that end, we’ve published several blog articles on the topic. Use of our site’s search function will lead interested readers to those other articles. About six months ago we discussed the problems Lockheed Martin was dealing with on its THAAD program for the U.S. Missile Defense Agency, and contrasted those problems with the success of Raytheon is winning the Small Diameter Bomb Increment II competitive award.

With respect to Lockheed Martin’s woes, we wrote the following—

Program quality and execution risk cannot be transferred to suppliers. The prime contractor is responsible to the customer for the program. Period. If your attorney counsels otherwise, you should hire another attorney. If your subcontract manager or buyer or procurement specialist tells you that cost or schedule or quality or performance risk has been controlled by pushing it downwards in the supply chain, you should put a better support team in place.



Because you cannot build a wall between team members on a program; you cannot say, ‘This is your responsibility and this is my responsibility.’ You cannot transfer risk; the most you can do is to share it. The more that design information and risk information is shared, and communicated, and managed as a team, the better the outcome. When you treat your suppliers as individual entities that succeed, or fail, on their own, then you will always suboptimize your outcome. That is axiomatic. It is a nearly inviolate law of 21st century program management.



As Lockheed Martin learned to its chagrin.

With respect to Raytheon’s success, we wrote the following—

… Raytheon invested in its supply chain and worked with its suppliers in a partnership to develop common processes and align approaches.



This is how it is done, folks. This is how you build a program team that shares risks and responsibilities, as opposed to an adversarial team where the overall program objectives are subliminated to the needs of the individual business entity.

Well, now we’re back with another story about Raytheon’s supply chain management philosophy. We don’t focus on Raytheon because we know the company; we focus on Raytheon because what’s happening there represents a tangible implementation of the philosophy we have espoused for years. And it’s working for them.

Here’s a recent IndustryWeek article that discussed Raytheon’s supply chain philosophy. It talked about a recent “strategic sourcing initiative” that focuses on common procurement of certain commodities across all the company’s businesses. The article made it seem like that’s some kind of innovative thinking when, quite candidly, it’s old-school. In fact, we noted in an article on “real acquisition reform” that if the U.S. Department of Defense were to implement centralized strategic sourcing and management for acquisition of its titanium, it could save between $100 and $300 million each year. So Raytheon’s preoccupation with centralized procurement and strategic sourcing was just not that interesting to us.


But what was interesting to us was what Raytheon says it want to do with its smaller number of strategic suppliers. The article said—

Eventually, the company plans to consolidate its supply base so it's using a smaller number of key suppliers to purchase commodities. With a smaller, more focused supply base … Raytheon will be able to set expectations on performance and improve enforcement of requirements.



As Raytheon selects key suppliers, the company will share its technology roadmaps with them so all parties are aligned on systems and business plans. Raytheon will provide suppliers with extended inventory visibility by allowing them access to its material requirements planning system. In turn, Raytheon will gain improved visibility to supplier risk issues so it can proactively mitigate potential snags. The company also will increase its use of supplier-managed inventory in the process….

Now that’s cutting-edge supply chain management, in our view.

Raytheon is not simply cutting down the number of suppliers it uses solely to leverage buying power to obtain better prices. Clearly, it’s also seeking to partner with its suppliers, in order to enhance project/program performance. It’s going to share technology roadmaps to create synergies in research and development spending. It’s going to give its suppliers access to its internal MRP system to that delivery timing can be improved. And in turn, it’s going to seek to “gain improved visibility” into “supplier risk issues” so that it can “proactively mitigate potential snags.”

That, gentle readers, is how it’s done.

But before we move on, let’s note another article on “supply chain transformation” authored by the respected Gartner Group. (Note that the Gartner Group site has a .pdf file download that is the meat of their thinking.) Looking at the article and .pdf file, we noted the following (quoted) points for your consideration:

  • [Raytheon] has a process to align engineering and supplier technology road maps, teams focused on reducing product and service complexity, and council-driven collaboration that aligns learning, technology, compliance and import/export requirements. A strong governance process, with steering committees, helps ensure this cross-functional alignment.

  • Raytheon has embedded members of its supply chain team at the earliest stages of the bidding process to ensure synchronization between what is promised and the capability to deliver it. Its integrated product development process has multiple gates commonly found across manufacturing. However, Raytheon has achieved a level of supply chain involvement that expands beyond mere participation to influencing designs that shape demand and mitigate risk.

Finally, the Gartner Group brochure quotes Bill Swanson, Raytheon’s CEO, as saying the following—

"Raytheon's supply chain is quickly becoming a competitive differentiator and strategic advantage for the company. It is an integral part of our focus on delivering strong operating performance for our shareholders and the best value for our customers. Initiatives such as our center-led and cross-functional approach to supplier selection and centralized procurement enable Raytheon to maximize supplier-partner relationships while minimizing variation and risk in our supply base. In addition, an enterprise services approach harnesses the collective strength of Raytheon efficiently while at the same time moving us forward with speed and agility."

Okay, we can all dispense with the flowery advertising language. But when you look at Raytheon’s win rate and improved project/program execution, we bet you’ll have to agree that there’s something happening over at that company.

Something pretty special.

 

Maybe the U.S. Marine Corps Knows How to Manage Its Programs After All

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CH53-K

On January 6, 2011, Secretary of Defense Gates announced the termination of the Marine Corps’ Expeditionary Fighting Vehicle (EFV). At the time, he said—

The EFV’s aggressive requirements list has resulted in an 80,000 pound armored vehicle that skims the surface of the ocean for long distances at high speeds before transitioning to combat operations on land.  Meeting these demands has over the years led to significant technology problems, development delays, and cost increases.  The EFV, originally conceived during the Reagan Administration, has already consumed more than $3 billion to develop and will cost another $12 billion to build – all for a fleet with the capacity to put 4,000 troops ashore.   If fully executed, the EFV – which costs far more to operate and maintain than its predecessor – would essentially swallow the entire Marine vehicle budget and most of its total procurement budget for the foreseeable future. …  As with several other high end programs cancelled in recent years, the mounting cost of acquiring this specialized capability must be judged against other priorities and needs.

This article opined as follows—

The cancelled EFV ended up costing over ten times as much as the $2.5 million AAV7 (taking inflation into account). … The EFV has been threatened with cancellation for several years, mainly because the vehicle was too expensive and didn't work. Well, parts of it worked. A year ago, tests revealed that the EFV had similar survivability characteristics to MRAPs, when hit with roadside bombs or anti-vehicle mines. The EFV needed all the good news it could get, but marines were already using MRAPs in Afghanistan, and are quite happy with them. What they don't really need, and may never need, is a high speed (in the water) armored vehicle that can cross 50 kilometers of open water to assault a defended beach. There has been no need for that since 1950.

For the last three years, the EFV developers have been making changes in the electronics, waterproofing of electrical elements, the gun turret and the stabilizers (for when it is moving in the water), trying to get the vehicle approved for production. … Under the original plan, the EFV was to enter service three years ago, and cost less than half its current price. … Three years ago, existing prototype EFVs had one failure, on average, for every 4.5 hours of operation. The marines insisted they had fixed the reliability and protection issues, and this persuaded Congress to provide money to build seven of the modified EFVs to confirm that. … But in the end, it was the sheer expense of the vehicle. The marines can't afford the EFV, which would cost $16 billion (for 573 of them). That comes to $29 million each, including all the development cost, making each EFV costing more than four times what the most recent model M-1 tank does. …

The EFV has been in development for over a decade, and has been delayed largely because of a complex water-jet propulsion system which, when it works, allows it to travel at 60 kilometers an hour while in the water. This capability was specified to reduce the danger (from enemy fire) when the EFVs were moving from their transports to shore, a distance of 30-50 kilometers. The additional gear required for the water jet system made the vehicle less robust and reliable, and fixing those problems has taken a lot of time. …

So in the end, the EFV was terminated because the Marines couldn’t afford it. But that’s not the only USMC program that’s been in trouble.

And we’re not even talking about the Marines’ version of the F-35 that’s been put on two-year “probation” by the DOD. No, we’re talking about the Sikorsky CH-53K heavy lift helicopter.

An April 2011 report by the GAO told Congress that the program “has addressed early difficulties and adopted strategies to address future [program] risks”—which is basically what you want GAO to say when your program has experienced a 3-year schedule delay and a 30 percent cost growth.

We thought the GAO report was interesting, given our periodic focus on program management. (For those who don’t know what we’re talking about, there is a series of articles on this site that all start with the phrase, “Why Can’t So-and-So Manage…,” by which you may take it that (in our view) not many entities actually can manage.)

Let’s take a closer look at the report.

The CH-53K program is important to the Corps, because it needs the heavy lift capability the helicopter will provide. As the GAO reported—

Its major improvements include upgraded engines, redesigned gearboxes, composite rotor blades and rotor system improvements, fly-by-wire flight controls, a fully integrated glass cockpit, improved cargo handling and capacity, and survivability and force protection enhancements. It is expected to be able to transport external loads totaling 27,000 pounds over a range of 110 nautical miles under high-hot conditions without refueling and to fulfill land- and sea-based heavy-lift requirements.

The GAO reported that Sikorsky was given the contract on a sole-source basis in December 2005—meaning that there was no competition. Despite the Obama Administration’s official stance disapproving of such non-competitive awards, and despite the DOD’s recent efforts to minimize them, there was no hint in the GAO report that the lack of competition had any impact on the program’s cost, schedule, or quality.

Instead, the GAO found that the program’s reported cost increase—from $18.8 billion to $25.5 billion—was primarily related to the Marine Corps ordering 200 aircraft instead of the 156 it had originally planned to acquire.

The GAO did find certain program-related issues. It noted that the program started development “before determining how to achieve requirements within program constraints, which led to cost growth and schedule delays.” In addition, the GAO reported—

Problems with systems engineering began immediately within the program because the program and Sikorsky disagreed on what systems engineering tasks needed to be accomplished. As a result, the bulk of the program’s systems engineering problems related to derived requirements.

Importantly, the GAO reported—

While Marine Corps officials commented that requirements are often difficult to define early in the engineering process and changes are expected during design maturation, they noted that in this case the use of a firm fixed-price contract with the subcontractor made it difficult to facilitate changes. As a result, completing this task took longer than the program had estimated and the program’s CDR was delayed. … To mitigate the risk of production cost growth, the contractor established long-term production agreements with its subcontractors. According to program officials, in these agreements subcontractors committed in advance to pricing arrangements for the production of parts and spares. While the contractor used this strategy to reduce program risk, it resulted in a delay and the major subcontracts were awarded later than needed to maintain the program’s initially planned schedule.

Let’s stop and think about the preceding paragraph. Sikorsky’s emphasis on awarding long-term fixed-price subcontracts may have mitigated some program risks (which we frankly doubt) but at a price. As a result of Sikorsky’s decision to lock-down its suppliers before it had completed its design, the program not only experienced schedule delays, but it also experienced downstream problems implementing the inevitable design changes.

We would assert that Sikorsky awarded the wrong contract types to its suppliers; they should have been under a cost-type development contract (perhaps with incentives) so that the program team operated as…well, a team. We would further assert that Sikorsky may well have incurred more cost managing changes on its fixed-price supplier subcontracts, than it would have spent on managing cost-type subcontracts.

Despite its early missteps, the program has recovered nicely—according to the GAO. It reported—

… the program delayed technical reviews until it was prepared to move forward, thereby becoming more of an event-driven rather than a schedule-driven program. An event-driven approach enables developers to be reasonably certain that their products are more likely to meet established cost, schedule, and performance baselines. For instance, the program delayed CDR—a vehicle for making the determination that a product’s design is stable and capable of meeting its performance requirements—until all subsystem design reviews were held and more than 90 percent of engineering designs had been released. … At the time CDR was held, the program had released 93 percent of its engineering drawings, exceeding the best practice standard for the completion of system integration. According to best practices, a high percentage of design drawings—at least 90 percent—should be completed and released to manufacturing at CDR. Additionally, the program office stated that all 29 major subsystem design reviews were held prior to the start of CDR, and that coded software delivery was ahead of schedule. In the end, the Technical Review Board, the approving authority for CDR, determined that the program was ready to transition to system demonstration—a period when the system as a whole demonstrates its reliability as well as its ability to work in the intended environment—and identified seven action items, none of which were determined by the program office to be critical.

Again, if you can’t receive top-marks on your program from the GAO, at least you’ve got a report saying you’ve recovered from your early problems. Kudos to Sikorsky and the US Marine Corps!

 

Think Pieces

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And now, for something completely different ….

We are working on a rather longish article at the moment. It may not be ready for a while. But in the meantime, we wanted to share the thoughtful blog posts of others. These pieces are not necessarily about government contracting matters. Some contain bad words. Some may espouse political positions with which you are in strong disagreement.

Still, we think each is worthy of your time. Each is a thoughtful piece, well-written and full of challenging concepts. Check them out and see if you agree.

Jim Wright, Master of Stonekettle Station. Jim is a retired U.S. Navy Chief Warrant Officer who lives in Alaska, roughly 8 miles from Sarah Palin’s house.

In this article, which went viral across Facebook, Jim explores the phenomenon of people who say they love America but show by word and deed how much of America they really hate.

In this follow-up article, Jim answers critics who challenged him to discuss what he loved about America.

John Scalzi, Proprietor of Whatever. John is an author, blogger, and currently serves as President of the Science Fiction Writers of America. Whatever is one of the oldest and most popular blogs on the Internet.

In this popular article, John discusses differences between the haves and have-nots of America, and the impact of tax increases (both perceived and real) on the well-to-do set.

In this short but poignant article, John explores difficulties faced by so many of us, each day—difficulties that we need to consider when we interact with others.

Okay, for those of you who want something—anything—related to government contracts, here’s Vern Edwards, blogging on WIFCON. WIFCON, of course, is a must-read site for anybody into government contracting matters. Vern, of course, is the master of government contracting advice—alternately stern, acerbic, frustrated, and fatherly, often he is quite literally the last word in WIFCON’s discussion forum.

In this absolutely must-read article, Vern provides 14 tips to would-be government contractors.

Here’s a very helpful article on the real nature of the United States Code.

Finally, here’s a text of a speech that Vern gave to Air Force Space Command, Space and Missile Systems Center.

Okay, we’re getting back to work on our pièce de résistance, to be published as soon as we can polish it off. Until then, consider the words of these other authors ….

 


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Newsflash

Effective January 1, 2019, Nick Sanders has been named as Editor of two reference books published by LexisNexis. The first book is Matthew Bender’s Accounting for Government Contracts: The Federal Acquisition Regulation. The second book is Matthew Bender’s Accounting for Government Contracts: The Cost Accounting Standards. Nick replaces Darrell Oyer, who has edited those books for many years.