D.C. Circuit Appellate Court Vacates SAIC’s False Claims Act Conviction
On December 3, 2010, the Court of Appeals (D.C. Circuit) vacated an October, 2008, judgment by the U.S. District Court for the District of Columbia, which had found SAIC liable for False Claims Act violations and breach of contract. The Appellate Judges remanded the suit for a new trial, finding that the Government’s theories of corporate “collective knowledge” were unpersuasive, and rejecting several of the Government’s aggressive theories of damage quantification.
The violations allegedly occurred on two contracts with the Nuclear Regulatory Commission in the 1990s. In those contracts, SAIC provided technical assistance to the NRC rulemaking personnel regarding clearance, recycling and release of radioactive materials. In 1999, the NRC terminated SAIC’s contracts, alleging that SAIC breached the contracts’ conflict-of-interest (COI) prohibitions. In 2004, the Government brought suit under the False Claims Act, alleging that its invoices submitted under the two contracts—though accurate in every mathematical respect—were nonetheless tainted (and thus false) because SAIC obtained the contract through false pretenses and submitted false statements.
As Judge Richard Roberts opined in 2008—
SAIC’s failure to disclose its potential conflicts of interest led to SAIC earning millions in income under a federal contract which SAIC might not have otherwise been eligible to be awarded. … there was evidence that SAIC employees know of evidence not disclosed to the [NRC] and intentionally hid information from the NRC that would have suggested the appearance of a conflict of interest.
The D.C. District’s 2008 opinion can be found here.
According to this POGO blog article—
The jury found that SAIC knowingly submitted 60 false claims for payment and made 17 false statements, and therefore awarded the government $1.97 million in damages, which are tripled to $5.91 million under the False Claims Act. The jury also determined that SAIC breached its contract with the NRC and tacked on another $78 in damages.
Yes, it was the additional $78 in damages that caused SAIC to appeal the jury verdict, not the additional $577,500 in penalties associated with the allegedly false statements and claims. (Note: Sarcasm.) In any case, Judge Roberts denied SAIC’s motion for a new trial or judgment notwithstanding the jury’s verdict, and the company appealed.
Here is the appellate decision. Here is a nice summary by the top-notch law firm of Gibson Dunn.
According to the decision, SAIC argued as follows—
SAIC argued (1) that the government failed to prove that the company submitted false claims under an implied certification theory because the record contained no evidence that payment under the contract was expressly conditioned on SAIC’s compliance with organizational conflict of interest obligations, (2) that the evidence precluded the jury from finding, as it did, that SAIC acted “knowingly” under the FCA when it submitted false claims and statements because SAIC’s belief that it had no conflicts as defined by the applicable contractual provisions and regulations was reasonable, (3) that various jury instructions were erroneous and prejudicial, including an instruction that the jury could find that SAIC possessed knowledge based on the “collective knowledge” of its employees, and (4) that the government failed to prove that it suffered any damages from SAIC’s false claims, and in the alternative that the district court’s damages instruction was erroneous and prejudicial. The district court rejected each argument. …
As SAIC compellingly points out, without clear limits and careful application, the implied certification theory is prone to abuse by the government and qui tam relators who, seeking to take advantage of the FCA’s generous remedial scheme, may attempt to turn the violation of minor contractual provisions into an FCA action. In our view, however, instead of adopting a circumscribed view of what it means for a claim to be false or fraudulent, this very real concern can be effectively addressed through strict enforcement of the Act’s materiality and scienter requirements.
As Gibson Dunn summarized—
On appeal, the D.C. Circuit vacated the judgment against SAIC and remanded for a new trial. In so doing, the D.C. Circuit rejected the district court's "collective knowledge" instruction, which permitted the jury to find that SAIC acted with scienter even if no particular employee knew the company's claims were false. The court held that the so-called ‘collective knowledge’ theory is legally deficient because it permits ‘a plaintiff to prove scienter by piecing together scraps of 'innocent' knowledge held by various corporate officials, even if those officials never had contact with each other or knew what others were doing in connection with a claim seeking government funds.’ The theory, the court continued, ‘provides an inappropriate basis for proof of scienter because it effectively imposes liability, complete with treble damages and substantial civil penalties, for a type of loose constructive knowledge that is inconsistent with the Act's language, structure, and purpose.’
The court also agreed with several of SAIC's other arguments, thereby raising the threshold for FCA plaintiffs--including qui tam relators--to succeed in future litigation. First, the D.C. Circuit rejected the government's sweeping damages theory as ‘flawed’ and instead adopted the benefit-of-the-bargain standard proposed by SAIC. At the government's urging, the district court had instructed the jury that it was barred from considering the value of the services that SAIC actually provided. That instruction ‘compelled the jury to assess as damages the actual amount of payments the government made to SAIC.’ The D.C. Circuit held that the government's ‘automatic equation’ of its payments with its damages was ‘mistaken’ because it ‘essentially required the jury to assume that SAIC's service had no value even in the face of possible evidence to the contrary.’ The court concluded that the ‘proper measure of damages’ was a ‘benefit-of-the-bargain framework’ that requires the government to prove ‘that the performance [it] received was worth less than what it believed it had purchased.’
Second, the court rejected the government's theory that false statements constitute separate violations of the FCA even if they were not used to get a false claim paid. That theory, the court explained, ‘rest[ed] on a misunderstanding of the FCA's structure’ because knowingly false statements are ‘separately actionable under FCA section 3729(a)(2) . . . only if’ they are used to get a false claim paid.
With respect to the latter point made in the summary above, the Appellate Court agreed with SAIC’s contention that “the government is entitled to no damages because it received the full value of the services covered by the contract.” The Court decided that, “This automatic equation of the government’s payments with its damages is mistaken.” Under the “benefit-of-the-bargain” framework—
Because SAIC’s services under its NRC contract had no ascertainable market price, the district court should instruct the jury to calculate the government’s damages by determining the amount of money the government paid due to SAIC’s false claims over and above what the services the company actually delivered were worth to the government.
To sum up, this is a significant decision in the complex, ever-changing world of False Claims Act litigation. While it likely won’t affect the manner in which compliance professionals execute their day-to-day tasks, it might just let their attorneys breathe a bit easier.
Why Can’t the NNSA Manage Its Programs?
(Note: One in a continuing series exploring Federal government program management challenges. Other articles in this series all have titles that start with “Why Can’t …..”)
The National Nuclear Security Administration (NNSA) is an interesting hybrid creature within the Executive Branch bureaucracy of the Federal government. Established by an Act of Congress in 2000, the NNSA is a separately organized agency within the Department of Energy. Its mission:
NNSA is responsible for the management and security of the nation’s nuclear weapons, nuclear nonproliferation, and naval reactor programs. It also responds to nuclear and radiological emergencies in the United States and abroad. Additionally, NNSA federal agents provide safe and secure transportation of nuclear weapons and components and special nuclear materials along with other missions supporting the national security.
Its annual budget of roughly $10 billion is largely devoted to nuclear “Weapons Activities”. Under that umbrella are tasks such as; Nuclear Weapon Stockpile Support; Science, Technology & Engineering; and Infrastructure. In addition, NNSA performs Nuclear Nonproliferation activities and supports Naval nuclear reactor programs for the Department of Defense.
So why can’t NNSA manage its programs?
A recent GAO report discussed the status of NNSA’s Uranium Processing Facility (UPF), designed to replace the aging, World War II-era Y-12 plant, located in Oakridge, Tennessee. GAO reported that—
NNSA plans to transfer much of the ongoing uranium processing work and uranium component production that is performed at existing facilities at the Y-12 plant to the UPF in order to continue to support the nation’s nuclear weapons stockpile and provide uranium fuel to the U. S. Navy, among other things. The proposed UPF is to consist of a single, consolidated uranium processing and component production facility to encompass less than half the size of the existing Y-12 plant facilities. NNSA officials expect that a combination of modern processing equipment and consolidated operations at the UPF will significantly reduce both the size and cost of enriched uranium processing at the Y-12 plant.
In the Background section of its report, GAO discussed some of the challenges that DOE and NNSA historically have faced in managing complex programs. GAO reported that—
For years, DOE and NNSA have had difficulty managing their contractor-run projects. Despite repeated recommendations from us and others to improve project management, DOE and NNSA continue to struggle to keep their projects within their cost, scope, and schedule estimates. Because of DOE’s history of inadequate management and oversight of its contractors, we have included contract and project management in NNSA and DOE’s Office of Environmental Management on our list of government programs at high risk for fraud, waste, abuse, and mismanagement since 1990.
In response to its continued presence on our high-risk list, DOE analyzed the root causes of its contract and project management problems in 2007 and identified several major findings. Specifically, DOE found that the department:
• often does not complete front-end planning to an appropriate level before establishing project performance baselines;
• does not objectively identify, assess, communicate, and manage risks through all phases of project planning and execution;
• fails to request and obtain full project funding;
• does not ensure that its project management requirements are consistently followed; and
• often awards contracts for projects prior to the development of an adequate independent government cost estimate.
In looking at DOE’s “root cause” analysis, one sees many of the standard problems associated with challenging public works projects. From DOE’s analysis, it appears that project execution is not the problem, the problem is management. Fundamentally, DOE fails to properly scope its work and to develop associated budgets that are reasonable in light of the work to be performed; moreover, because it hasn’t accurately scoped and budgeted the work, funding problems impact performance.
Although DOE apparently identified its failings, it failed to do much about them. NNSA’s UPF project suffered from the mismanagement issues noted above. GAO reports that the current UFP construction cost estimates “are already more than double its initial estimate.” And, although the latest project schedule (established in 2007) projected project completion “between 2018 and 2022,” GAO reports that “NNSA officials expect the UPF will not be completed before 2020 due to funding shortfalls.”
First of all, let’s ask what genius approved a schedule with a four-year float? Next, what about project plans that don’t receive full funding because of unanticipated cost growth (of more than 100%)?
And that’s not even mentioning the risks and potential problems associated with the ten “advanced uranium processing and nuclear weapons component production facilities” planned for the UPF, which include items such as “microwave casting” and “agile machining”. These new technologies are insufficiently mature--in terms of Technological Readiness Levels (TRLs)—and thus represent huge risks to the project.
GAO opined that—
Because all of the technologies being developed for the UPF will not achieve optimal levels of readiness prior to project critical decisions, NNSA may lack assurance that all technologies will work as intended. This could force the project to revert to existing or alternate technologies, which could result in design changes, higher costs, and schedule delays. In addition, other problems have occurred. For example, NNSA recently downgraded special casting technology from TRL 4 to TRL 3 because, according to UPF officials, unexpected technical issues occurred that required additional research and testing to resolve. Although officials expect this technology to be at TRL 6 by the time a formal cost and schedule baseline is approved in July 2012, it is not expected to reach TRL 7 before construction begins in December 2013.
In other words, not only has DOE doubled its initial cost estimates and is likely to miss its initial completion schedule, there are additional risks that have not yet been factored into the analysis—and those risks could impact the UPF project in the coming years.
In sum, the DOE asserts that it has identified and understands its program management shortcomings. However, NNSA’s UPF project is evidence that it has failed to meaningfully address and correct them. In the current environment of increased sensitivity to federal spending, we hope DOE and NNSA implement better program management practices soon.
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Another Version of DFARS Business Systems Rule Out for Comment
On December 3, 2010, another version of the proposed DFARS Business Systems rule (DFARS Case No. 2009-D038) was published for public comment. Here is a link to the Federal Register notice—all 28 pages of it.
You and your company should review the proposed rule and provide comments back to the DAR Council at the address provided in the Federal Register notice. The previous version received “370 comments from 25 respondents,” according to the new version. Apogee Consulting, Inc. was one of those 25 respondents.
You might think that a mere 25 responses would not be sufficient to sway the rule-makers, but you would be wrong. The language in the new version indicates that some—perhaps many—of the 370 comments were considered. If your company does business with the Department of Defense, you would be quite foolish indeed to ignore the potential impact the rule will have on your business (and cash flow) if implemented as currently drafted.
In addition to our official comments, we had some choice words for the initial version of the proposed rule. Here’s a link to our original blog article. So what do we think of the new version of the proposed rule?
We think it’s a significant improvement. The mandatory withhold amounts have been reduced. As currently drafted, the rule would impose a five percent payment withhold for each business system that the Administrative Contracting Officer (ACO) determines to have significant deficiencies—although small businesses would be only subject to a two percent withhold. The cumulative amount of payments that can be withheld has been reduced from 100 percent to 20 percent (10 percent for small businesses).
The revised draft permits the ACO to reduce payment withholds upon receipt of an adequate corrective action plan from the contractor, and to eliminate the withholds when it is believed that the corrective actions have been successfully implemented—even though a formal DCAA audit report to that effect has not yet been received by the ACO.
However, the revised rule is far from perfect. In fact, one commenter already said that the rule “has gone from terrible to just bad.” The rule-makers still insist that withholds must be mandatory when necessary “to mitigate the Government’s risk when contractors fail to comply with the terms and conditions of their contracts by failing to maintain adequate business systems necessitates this rule.”
The proposed rule permits the ACO to impose withholds even when the Government is not reasonably at risk of financial harm. For example, deficiencies in an Earned Value Management system (EVMS) can lead to withholds. Moreover, the withholds are to be implemented on all payments, including contract financing payments on Firm Fixed-Price contract types—as well as on Performance-Based Payments (PBPs).
There is more to say, but we’ll save it for our comment letter. In the meantime, why don’t you get on the stick and see what you think about the proposed rule. This may be your last opportunity to affect it, before it is implemented and you see your cash flow take a hit.
One thing you might want to do is to compare the criteria for “adequate business systems” against your current practices to see how you stack up. If you don’t like the result, you might want to consider beefing-up your policies, procedures, and practices.
This rule, when finalized, is going to be significant. Don’t say you weren’t warned.
DCAA Successfully Pushes DOD to Ignore FAR Definition of Competition
We do not know Shay Assad, Director of Defense Procurement and Acquisition Policy (DPAP) and Assistant Secretary of Defense for Acquisition (ASD(A)). We don’t know him, but we’ve written about him—mostly with approval. We’ve talked to people who do know him and they all have nice things to say. Apparently, Mr. Assad is an intelligent, knowledgeable, thoughtful person and has done well over the past couple of years in the bureaucratic infighting we’ve termed “The DOD Oversight War”.
So why is he playing the “Yes Man” by issuing guidance that implements one of Dr. Ash Carter’s (Undersecretary of Defense, Acquisition, Technology & Logistics) less wonderful acquisition improvement initiatives without any push-back?
Or—as we intend to show you—did DCAA just pull a fast one and take away yet another tool of the DCMA Contracting Officers?
In fairness, we don’t know that Mr. Assad didn’t put up a strong fight before acquiescing to issue his November 24, 2010 memo entitled, “Improving Competition in Defense Procurements”. We don’t know whether he went to bat against DCAA and its Director. But there’s no evidence he did so and, regardless of any efforts he may have made, the results speak for themselves. The DOD repudiated the FAR definition of adequate competition, and it did so via a memo from Mr. Assad.
Effective “immediately,” the memo informs DCMA Contracting Officers of the following—
To maximize the savings that are obtained by competition, contracting officers will no longer use the standard at FAR 15.403-1(c)(1)(ii) or (iii) to determine that the offered price is based on adequate competition when only one offer is received.
We are dismayed that Mr. Assad, who has such a strong reputation amongst the contractor community, would stoop to sign his name to the memo—even if his boss ordered him to do so.
What are we talking about? Here’s some background.
In our previous article on Dr. Carter’s September 2010 17-page memo (link above) we noted that one of his “principal actions” was to ignore the efficiency offered by the Federal Acquisition Regulation (FAR). He wrote—
When only one bid or offer is received by the DOD, require Contracting Officers to obtain non-certified cost or pricing data, even if the FAR definition of ‘adequate competition’ has been met.
We were not the only critic of Dr. Carter’s initiatives and his memo describing them. On an internet public discussion forum, Vern Edwards had some choice observations. He wrote—
There is not one thing in that memo that has not been tried already, except for the goofy taxonomy of services. There is not one new idea. … This is one of the dumbest things I have ever seen from DOD.
The biggest problem with the memo is that it does not take into account the political, economic, institutional, and cultural sources of the problems we have experienced for so long: inter-service rivalry, excessive technical optimism, short-term program management assignments among military personnel, the uncertainty arising from the appropriations process, requirements creep, and on and on, all of which have been well documented since the late 1950s. The memo reflects the apparent belief that we can circumvent those sources of difficulty by adopting certain processes, like should cost analysis. We can't. We have tried before, and we cannot do it.
Without getting overmuch into the technical details, let’s summarize the situation (as we see it).
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The policy of the United States, as expressed at 48 C.F.R. § 15.402(a) is as follows: “Contracting officers shall purchase supplies and services from responsible sources at fair and reasonable prices.”
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The FAR provides the Contracting Officer with two primary methods to determine whether a proposed price is fair and reasonable: (1) price analysis (discussed at § 15.404-1(b)), and (2) cost analysis (discussed at § 15.404-1(c)).
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Price analysis is simply the examination and evaluation of proposed bottom-line prices without examination of individual cost elements and proposed profit. In contrast, cost analysis is the review and evaluation of separate cost elements and profit or fee in a bidder’s proposal, and includes “the application of judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency.”
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Given the foregoing, it should be obvious that price analysis is much quicker and less costly than cost analysis. If you’ve got two bids from responsible bidders competing independently, then the one that’s lower is, by definition, fair and reasonable. Done and done. Performing cost analysis, on the other hand, requires in-depth analysis. But the real kicker in performing cost analysis is that DCAA will likely be called in to perform an audit of the bidder’s cost data. Those readers who’ve followed our articles on recent DCAA audit guidance dealing with such audits (see, for example, this one) will understand the reluctance on the parts of both buying command and DCMA Contracting Officer to involve DCAA in the process—unless absolutely necessary. Indeed, it should be crystal clear that if price analysis is available, it is the preferred approach.
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The overarching prerequisite for the use of price analysis is there must be “adequate competition”. FAR § 15.403-1(c)(1) defines when adequate competition has been achieved. If there is no adequate price competition, then the Contracting Officer is forced to use cost analysis.
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Importantly, if there is not adequate competition, then the bidder(s) will likely be asked to submit “certified cost or pricing data” (i.e., what used to be called simply “cost or pricing data”), in accordance with the format and requirements of FAR Table 15-2. In addition, the requirements of the Truth-in-Negotiations Act (TINA) will be invoked, subjecting the successful bidder to the risk of “defective pricing” if it is later shown that it inaccurately certified that it had submitted “accurate, current, and complete” information to the Contracting Officer to support the cost analysis and subsequent negotiations. In sum, not only is the Contracting Officer motivated to determine that adequate competition has been achieved, but so are the contractors.
To establish the record, here is the current definition of “adequate competition” as set forth at 48 C.F.R. § 15.403-1(c)(1).
(1) Adequate price competition. A price is based on adequate price competition if—
(i) Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government’s expressed requirement and if—
(A) Award will be made to the offeror whose proposal represents the best value (see 2.101) where price is a substantial factor in source selection; and
(B) There is no finding that the price of the otherwise successful offeror is unreasonable. Any finding that the price is unreasonable must be supported by a statement of the facts and approved at a level above the contracting officer;
(ii) There was a reasonable expectation, based on market research or other assessment, that two or more responsible offerors, competing independently, would submit priced offers in response to the solicitation’s expressed requirement, even though only one offer is received from a responsible offeror and if—
(A) Based on the offer received, the contracting officer can reasonably conclude that the offer was submitted with the expectation of competition, e.g., circumstances indicate that—
(1) The offeror believed that at least one other offeror was capable of submitting a meaningful offer; and
(2) The offeror had no reason to believe that other potential offerors did not intend to submit an offer; and
(B) The determination that the proposed price is based on adequate price competition, is reasonable, and is approved at a level above the contracting officer; or
(iii) Price analysis clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or similar items, adjusted to reflect changes in market conditions, economic conditions, quantities, or terms and conditions under contracts that resulted from adequate price competition.
Let’s all notice that there are three means of determining whether or not there is adequate competition. The second standard permits the Contracting Officer to determine that there has been adequate competition even if only one bid is received, so long as “there was a reasonable expectation … that two or more responsible offerors, competing independently, would submit priced offers….” In testimony before the Commission on Wartime Contracting, DCAA Director Pat Fitzgerald expressed his agency’s concerns with this regulatory “loophole”. He told the Commissioners that—
DCAA has taken exceptions to several subcontract pricing actions where the prime contractor asserted a fair and reasonable subcontract price based on ‘adequate competition’ where in fact only one bid was received by the prime contractor. DCAA is concerned about the risks created by current regulations permitting awards to subcontractors using competitive pricing procedures when only one bid is actually received. Again, in these cases, we believe it would be beneficial for the prime contractor and contracting officer to have access to subcontractor cost data to determine fair and reasonable contract prices. The Adequate Pricing Subcommittee under Mr. Assad’s Panel on Contracting Integrity is taking a look into this area. They are ascertaining the need to revise this ‘loophole’ in the regulation that we believe leads to subcontract prices being awarded at unreasonable prices. I will continue to work this issue as the Chair of this Subcommittee. (Emphasis added.)
Apparently, Mr. Fitzgerald’s Subcommittee recommended that the “loophole” be closed and that recommendation made its way into Dr. Carter’s contractor affordability initiatives. But closing that “loophole” would mean revising the FAR, and that would mean following the official rule-making process, including publishing the proposed revision(s) for public comment. Somebody at DOD found a more clever way of achieving their objective: Mr. Assad simply directed DCMA’s Contracting Officers to ignore the FAR. Mr. Assad’s memo directs that, even when the FAR would permit a Contacting Officer to use price analysis and not involve DCAA in auditing a bidder’s costs, the Contacting Officer may not avail himself (or herself) of the opportunity. The receipt of one bid now leads inexorably to the Contracting Officer entering into negotiations based on “either certified cost or pricing data or other than certified cost or pricing data, as appropriate.”
But there’s more to this story.
Mr. Assad’s memo also directs that, if only one bid is received in response to a solicitation, then the competition may need to be re-opened and re-advertised in order to attempt to generate more bids. That’s not going to help meet the schedule needs of the buying commands.
Moreover, the memo reminds its recipients that when a DCMA Contracting Officer negotiates with a bidder in a situation where only one bid has been received (despite all efforts to generate more offers), then—
Contracting officers shall document the results of the negotiations in the Business Clearance/Pricing Negotiation Memorandum in accordance with FAR 15.406-3 and DFARS PGI 215.406-3 in the same manner as any negotiated procurement. Contract Review Boards or other similar review mechanisms should be used to ensure the Business Clearance/Pricing Negotiation Memorandum documents the process and supports the negotiated price as being fair and reasonable. The Peer Reviews conducted post award will be the mechanism for assessing the application of this process.
In our view, Mr. Assad’s memo describes a process designed by bureaucrats to avoid achieving any process efficiency whatsoever. The situation was bad enough before Mr. Fitzgerald, Dr. Carter and Mr. Assad got involved; it is now worse for their involvement.
Let’s wrap this up.
More than a year ago (in August 2009) we published an article entitled, “DOD Is Too Bureaucratic to Meet Needs of Warfighter, Defense Science Board Tells SecDef.” (Here’s a link to that article.) We posted some telling quotes from the DSB report to SECDEF Gates. Here are a few of them—
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“Current long standing [DOD] business practices and regulations are poorly suited" to the “dynamics of a rapidly shifting threat environment."
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"Today, the DOD is saddled with processes and oversight built up over decades, and managers leading them who are often rewarded for risk aversion."
We look at Mr. Assad’s memo in light of the Defense Science Board’s concerns with a risk averse bureaucracy, and with Secretary of Defense Gates’ concerns with “overhead” and the multiple layers of management that inhibit agile decision-making. To refresh your memory, SECDEF Gates said in a speech (link above)—
Another category ripe for scrutiny should be overhead – all the activity and bureaucracy that supports the military mission. According to an estimate by the Defense Business Board, overhead, broadly defined, makes up roughly 40 percent of the Department’s budget. … Almost a decade ago, Secretary Rumsfeld lamented that there were 17 levels of staff between him and a line officer. The Defense Business Board recently estimated that in some cases the gap between me and an action officer may be as high as 30 layers. …
We look at Mr. Assad’s memo in light of those touchstones, and we don’t like what we see. There is nothing about this memo—from the bureaucratic maneuvering to avoid the transparency of the public rule-making process, to the willful blindness to existing regulatory flexibility within a regulatory schema not known for flexibility—that we think has any merit.
We don’t like the misleading title of the memo, which implies that the existing process is being “improved”. Nor do we like the glib rationale, which states that the new policy will lead to “more effective use of the Department’s resources and savings for the taxpayer.” We are dismayed that Mr. Assad affixed his name to this memo.
We don’t like the memo and we don’t like what is portends for the Defense acquisition environment. We don’t like it at all.
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