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U.S. Army Major/Contracting Officer Gives Himself Extra Pay, Now Faces Jail Time

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Life in a warzone is stressful, not to mention dangerous.  That’s why contractors who deploy there often get hazardous duty and danger pay salary uplifts.  But typically, such salary uplifts are provided pursuant to established policy and authorized by appropriate management levels.  On  July 7, 2010, the Department of Justice (DOJ) announced that “U.S. Army Major Charles E. Sublett, 46, of Huntsville, Ala., pleaded guilty today … to making false statements to a federal agency.”  According to the indictment, Major Sublett smuggled into the U.S. “more than $100,000 in currency, concealed in a shipping package” mailed from his duty station in Iraq.

The DOJ announcement provided more details, as follows—

Sublett was deployed to Balad Regional Contracting Center on Logistical Support Area (LSA) Anaconda in Iraq from August 2004 through February 2005. LSA Anaconda is a U.S. military installation that was established in 2003 to support U.S. military operations in Iraq.  [While there] Sublett served as a contracting officer while deployed to LSA Anaconda. As a contracting officer, Sublett was responsible for, among other things, evaluating and supervising contracts with companies that provide goods and services to the U.S. Army.

Sublett admitted that … he sent a package from Balad, Iraq, to Killeen, Texas, which was seized by U.S. Customs and Border Protection officers in Memphis. Sublett admitted that, on the international air waybill, he falsely described the contents of the package as books, papers, a jewelry box and clothes with a total declared customs value of $140 when, in fact, Sublett knew the package contained $107,900 in U.S. currency and 17,120,000 in Iraqi dinar. Sublett also admitted that he failed to file a currency or monetary instruments transaction report (CMIR) as required by federal law when transporting currency in amounts of more than $10,000 into or out of the United States. [Additionally} Sublett admitted to making false claims to investigators regarding his attempt to bring the currency into the United States in an effort to impede their investigation.

This reminds us of a previous article, where former U.S. Army Captain Michael Dung Nguyen was sentenced to 30 months in federal prison for the crime of theft of government property.  Captain Nguyen, a purchasing officer, mailed at least $690,000 in funds from the safe located in his battalion’s station—the safe to which only he had the combination—and mailed the ill-gotten loot home to himself in Oregon.  Capt. Mike proceeded to live it up until his new lifestyle came to the attention of the IRS.  Oops.

Capt. Mike stole funds from his commander, his battalion, and the U.S. Government.  He received a prison sentence of less than three years duration.  Major Sublett stole more than $107,000 and is facing a sentence of five years in prison plus a fine of $250,000.  Capt. Mike was convicted of “theft of government property” and Major Sublett pleaded guilty to one count of violation of the False Statements Act.

What the heck is going on here, Department of Justice?  Are there no other criminal statutes available to your prosecutors?  We have lamented the rise of corruption—both in the ranks of government officials and in the ranks of contractor employees.  We have scolded the Department of Defense for a lack of internal controls and a lack of common sense-inventory management procedures which, if they had been implemented, possibly would have detected or even prevented these brazen thefts of military funds.  Now we look at Attorney General Eric H. Holder, Jr.—and we ask why his prosecutors don’t make some examples of these miscreants?

Maybe it’s okay to do the crime, when you can be pretty sure you won’t do the time.


 

Why Can’t DHS Manage Its Programs?

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Nobody is thrilled with the seemingly inexhaustible supply of troubled Federal programs that are both behind schedule and over budget.  In current environment of severe budgetary pressure, with a threatened taxpayer revolt just a nut-case away from reality, nobody wants to hear about acquisition mismanagement and/or program execution failures.  Yet the Government Accountability Office (GAO) seems to be having no trouble finding such programs to review.

We have reported, many times, on problems with DOD programs.  (See, for example, this article.)  We have reported a few times on problems with NASA programs.  (See, for example, this article.)  But we rarely report on issues with Department of Homeland Security (DHS) programs, with only one article on the topic to date.  Well, all that changes today, dear readers, as we now turn out attention to DHS and discuss a recent GAO report addressing fifteen (15) ongoing programs—of which all but one were experiencing cost and/or schedule problems.

(The numbers will get confusing in a second.  Let’s clarify:  GAO examined eighteen (18) “major” DHS programs and 2 “nonmajor” programs, for a total of 20 programs reviewed.  One of the 20 was found to be in a “pre-acquisition” phase and was excluded from further analysis.  Two of the 15 major programs were found to have “incomplete schedule data” and were excluded from certain analyses.  Of the 15 major programs reviewed, only one (1) was found to have zero cost growth or schedule delays.)

What did GAO find?  We looked at the 92-page report and immediately discounted the weak pats on the agency’s back, such as “DHS continues to develop its acquisition oversight function,” and that the agency “has begun to implement a revised acquisition management directive that includes more detailed guidance for programs to use when informing component and departmental decision making.”  That’s the kind of stuff auditors write just before they add “BUT” and stick the knife in deep.  We skipped the platitudes and went for the good stuff.  Here’s the bottom-line—

GAO found that of the 15 major programs that had started acquisition activities, 12 reported cost growth, and almost all programs reported schedule delays. DHS policy requires acquisition oversight officials to assess the accuracy of life-cycle cost estimates for all major programs estimated to exceed $1 billion and provides guidance for programs to develop life-cycle cost estimates. The responsible DHS acquisition oversight officials have raised concerns about the accuracy of cost estimates for most major programs, making it difficult to assess the significance of the reported cost growth. Further, over half of the programs GAO reviewed initiated acquisition activities without approved key planning documents that set operational requirements and establish program baselines. Programs also experienced other acquisition planning challenges, such as staffing shortages, and lack of sustainment planning, as well as execution challenges related to technical capability, partner dependence, and funding issues. … Of the 11 programs with acquisition cost growth, 8 programs reported cost growth of over 25 percent. … Fifteen of the [eighteen] major programs we reviewed reported estimated or actual schedule delays in delivery of initial operating capability of an average of 12 months, and eight programs reported delays of a year or more. Thirteen programs reporting data on delivery of full operating capability indicated estimated delays of over 2 years on average. None of the selected programs reported delivering full operating capability for all increments.

Following are two examples of the detailed program assessments found in the GAO report—

  • Automated Commercial Environment (ACE) (Customs and Border Protection) – ACE is intended to “facilitate the movement of legitimate trade, strengthen border security, and serve as the single point of collection and access for trade data among federal agencies.”  Unfortunately, “the initial software releases delivered between 2003 and 2005 significantly exceeded their estimated costs” and “three remaining software releases will not be completed as initially planned.”  Moreover, GAO reported that “program officials do not expect ACE to deliver all initially planned capabilities.”  What’s going on here?  GAO noted that the number of lines of software code increased from 1.26 million to 4.26 million.  Hello, that’s an increase of 338 percent!  How did that happen?  “Program officials said requirements growth and lack of requirements definition contributed to the schedule delays and contract cost overruns.”  GAO reported that the future of the program is in doubt.

  • Electronic Baggage Screening Program (EBSP) (Transportation Security Administration – EBSP is responsible for “screening all checked airline baggage in the United States.”  The program relies on Explosive Detection System and Explosives Trace Detector devices as its primary screening technologies.  GAO reported that the program’s total acquisition cost has increased from $11.36 billion to $15.32 billion, and that the program’s total life-cycle cost estimate has increased from $19.93 billion to $23.7 billion, an increase of nearly 20 percent.  The program recently received $700 million in ARRA (Recovery Act) funds.  Despite the cost growth, “a substantial portion of legacy equipment is now nearing the projected end of its useful life” and needs to be replaced. Thus, the program will likely be funded and will continue.

GAO didn’t stop there.  The report also discussed the issues that led to the cost and schedule impacts.  GAO opined that the following problems contributed to DHS program problems—

  • The responsible officials have raised concerns that many programs used cost estimation methods that did not follow established best practices, such as fully defining program requirements, accounting for sustainment costs, and including costs for the full life cycle of a program. As a result, officials have doubts about the credibility, comprehensiveness, and accuracy of most program cost estimates.

  • Inaccurate or incomplete cost estimates were likely a factor in cost growth for the programs we reviewed, according to DHS officials. In some cases, programs reported that changes in scope or requirements contributed to cost growth. Further, initial cost estimates for most programs were developed after the start of acquisition activities, so they do not capture earlier cost changes.

  • The major acquisition programs we assessed experienced similar planning challenges affecting cost and schedule outcomes: unapproved or unstable baseline requirements; program office workforce shortages; long-term support, and acquisition cost planning. 

  • Over half of the programs we reviewed awarded contracts to initiate acquisition activities without component or department approval of documents essential to planning acquisitions, setting operational requirements, and establishing acquisition program baselines. … 7 of 15 programs in our review did not have approved baselines until 2 years or more after program start. For example, the Secure Flight program did not have an approved program baseline until over 4 years after program start, and the TECS Modernization program did not have a component or department approved baseline after more than 6 years.  Most of the programs that had established baseline requirements changed or plan to change them. For example, seven programs with an approved program baseline changed key requirements after their initial approval. An additional three programs were revising baseline requirements, pending APB approval, at the time we completed our review.

  • Almost half of all programs reported concerns over funding, although the nature and cause of those concerns varied among programs. … For example, after DHS approved and funded the Automated Commercial Environment program, program officials found that they did not have a full understanding of all requirements and have experienced cost growth. Program officials said the future of the program is dependent on departmental funding decisions.  [In addition] the Electronic Baggage Screening Program reported that annual compliance costs and recapitalization expenses, when combined with recurring programwide costs, have sometimes exceeded the budget. In future years, program costs could grow significantly as cost estimates are reassessed to include new requirements.

So it turns out that DHS can’t manage its programs for the generally the same reasons that NASA and DOD can’t manage their programs—i.e., a lack of rigorous initial definition of requirements leading to scope expansion, a lack of executive approvals and/or buy-in for program business cases and budget baselines, and uncertainty over long-term funding.  Sounds like the normal program management environment to us.

And as we noted at the beginning of this article, the current environment is unforgiving to the typical excuses for “suboptimal outcomes”.  We hope DHS gets its act together, soon.


 

KC-X Aerial Tanker Update—The Russians Are Back!

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When last we looked at this problem-plagued plane procurement, President Obama and his Pentagon “indicated it would welcome” a bid from a foreign manufacturer—which at the time everybody thought would be EADS.  But then a wildcard was introduced into the game, as a Russian aircraft firm reportedly was gearing-up to offer a variant of the Illyushin-96 widebody jetliner, to be designated Il-98.  We smirked, picturing the face of Boeing executives, who had worked so hard to turn the competition into a “low-price, technically acceptable” game in which there was almost no chance for the other side to win—and forcing Northrop Grumman to concede.  Given the huge gap in labor and material costs between the two entities, we opined that there was essentially no chance for Boeing to beat the Russians on price.  The only way for Boeing to beat the Russians, and to secure what has been called the largest Pentagon contract ever, would be to change the game and, if that happened, there were many European nations prepared to cry “foul”.

But almost immediately the reports were denied, and the competition settled down to Boeing versus EADS.  But quite recently (July, 2010) reports surfaced that yet another bidder had entered the field—and this time it was Antonov out of the Ukraine.  Employing a strategy similar to that reported for Illyushin, Antonov has executed an agreement to sell through a Southern California.-based defense contractor, U.S. Aerospace, Inc.  According to the article at AirForceTimes (link above)—

Under terms of a “strategic cooperation agreement” signed July 1 in Kiev, Ukraine, “final assembly” of an U.S. Aerospace-Antonov tanker would take place on U.S. soil. Defense News obtained a copy of the agreement. The American company would oversee that stage of production.

U.S. Aerospace would coordinate the bidding process, negotiate with the Air Force, coordinate with subcontractors, ensure conformity of aircraft to requirements of RFP for KC-X Tanker Modernization Program,” according to the agreement.

Antonov would integrate components into the aircraft, work with its U.S. partner on preparing the aircraft for certification and testing, and “manufacturing and delivering to [U.S. Aerospace] specified aircraft and components,” states the pact.

What is Antonov offering the U.S. Air Force?  According to that same article—

The source said U.S. Aerospace and Antonov plan to enter the four-engine AN-124-100, and a two-engine variant of that airframe known as the AN-122.  In a further twist, the U.S.-Ukrainian team plans to enter “a new plane designed to meet the [KC-X] specs, dubbed the AN-112,” the source told Defense News.  The AN-112 would be, if eventually entered, the only plane in the race designed specifically for the Air Force’s tanker requirements.

Bids were due to be submitted by July 9, 2010.  But at least one source has reported that the new bidder has requested a 60-day extension in order to prepare its bid.  As of this date, it is not clear whether the Pentagon will agree to the extension.

This Reuters article notes that—

John Kirkland, a Los Angeles-based attorney for U.S. Aerospace, [said] the [Antonov] team would offer the Pentagon a ‘dramatically’ lower price for a far more capable plane.

Kirkland said Antonov, maker of the world's largest cargo planes, had modified an existing military cargo plane to meet U.S. specifications. Unlike the commercial derivative planes offered by rival bidders, the plane had a rear cargo door, a more stable airframe, and could land on dirt runways.

(We should note that Mr. Kirkland was also involved in the Illyushin bid as well.)

Some commenters dismissed the tardy bid as a “waste of time” (according to the Reuters article) because of various issues—among them the financial troubles of U.S. Aerospace, Inc.  The company, which trades over-the-counter (as USAE), “reported a net loss of $14 million in 2009,” according to Reuters.  The article also had this to say about the U.S. face of the Antonov team—

The company told investors in May it was in default on several notes and had an accumulated deficit of $28 million, which raised substantial concerns about its future unless it was able to secure additional debt and equity financing.

It’s an old adage that, if the RFP is the first time a bidder learns of an opportunity, it shouldn’t bother bidding—because it has already lost.  We wonder if the Antonov team (including Mr. Kirkland) has heard of that adage, or believes it applies to this situation.  Time will tell.



 

Reorgs and Layoffs as Defense Industry Prepares for New Budget Squeezes

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We’ve been predicting this situation for over a year, talking about DOD funding shortfalls and budget cuts at Federal agencies, leading to a downturn affecting the entire aerospace and defense industry.  The future is now the present, and A&D companies are making the necessary adjustments to retain their market share in the face of industry challenges.  As we reported in September 2009, some industry insiders expected company leadership to be smarter about making downsizing decisions this time around, hopefully having learned painful lessons from the last round of cuts in the 90’s.  In fact, we even noted that a couple of defense companies (including Lockheed Martin) were adding to their executive ranks under the assumption that an enhanced focus on strategy, execution, and customer relationships would lead to better results.  We could go on, listing and linking to more articles on this topic, but we believe we’ve made the point—times are getting tough, and the tough times were predictable. 

Companies continue to make adjustments in response to market pressures, which now include a new DOD initiative to slash contractor overhead.  In mid-June 2010, BAE Systems announced a reorganization designed for “better delivering our strategy in an increasingly cost-conscious marketplace.”  The reorganization details were not provided but, as part of the realignment BAE reportedly will close down its operating headquarters of Electronics, Intelligence and Support divisions (EI&S) effective July 1, 2010.

In addition, Lockheed Martin announced on July 6, 2010 that it was “offering incentives to thin out its executive ranks in a move to lower overhead costs” (according to the Wall Street Journal article, link above).  The WSJ article also reports that—

‘Our customers are facing increasing demands with constrained resources, and they're relying on us to give them the very best value within these constraints,’ Chairman and Chief Executive Bob Stevens said Tuesday. He specifically mentioned recent comments by Pentagon officials regarding productivity and cost-savings programs.

His comments echo others he made recently about how the defense giant is bracing for belt-tightening at the U.S. Department of Defense. The company also has undergone a business reorganization and has cut back its participation in international trade shows, and it plans to sell two units.

The company is reportedly offering Directors and Vice Presidents a “Voluntary Executive Separation Program,” which consists of “financial incentives” if they leave the company by February, 2011.  While Lockheed Martin declined to specify a target number of employees it hopes will accept the VESP incentives, reports indicate that a reduction of 7 percent would not be out of line.

Meanwhile, DOD Comptroller Robert Hale said in a recent interview that “U.S. spending on weapons through 2016 likely will grow faster than the overall defense budget, which will have annual increases of only about 1 percent above inflation,” according to an article at Bloomberg Businessweek (link above).  The article reports that—

‘Procurement and research are in the ‘gaining’ portion of the budget,’ Hale said. ‘The goal would be to move money from support-type activities -- operations and maintenance, military construction -- into acquisition.’

The foregoing was seen as “good news for defense contractors,” according to one industry analyst quoted in the article.

What is one to make of these seemingly contradictory statements—i.e., stating that overhead must be cut and programs must become more “affordable” while concurrently stating that weapons spending (and indeed the entire DOD budget) will continue to grow?  Quite candidly, readers of this site should have seen it coming.  We reported that “current Defense budget levels are nearly double what they were a decade ago, even after adjusting for inflation.”  We also opined that, “if Obama Defense spending is reaching a plateau, that plateau is at least 5 percent higher than recent history in inflation-adjusted dollars.”  We provided a link to a study by the Project on Defense Alternatives (PDA) that probed the seeming contradiction between real budget growth and the need for more budget.  One of the causal factors the PDA study mentioned was DOD spending per uniformed service member, which had increased by nearly 50 percent per individual over the decade between 2000 and 2010.  The study reported that, “the increase was enough to bring total personnel expenditures back up to Cold War levels – for a military only 69% as large.”

To sum up, it appears as if DOD spending—and not contractor spending—is driving the need to develop weapon systems more efficiently, and certainly less expensively, than has been the historic norm.  Whether that is possible or not remains to be seen.  But in the meantime, defense contractors are reorganizing and cutting overhead in an attempt to be seen as part of the solution, rather than part of the problem.


 

FAR Revised to Eliminate Profit on Cost of Direct-Charged Equipment

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In August, 2009, we reported on a proposed FAR rule that looked very much as if it would have required Contracting Officers to exclude from profit consideration “all contractor-acquired property, unless an item is expressly called-out as a contract deliverable,” when establishing pre-negotiation profit objectives.  Well, the final rule was published on July 2, 2010 and, while it contained some changes from the proposed rule, it still contained some troubling language.

First, as we noted in our article, the location of the proposed profit language seemed illogical.  We were pleased to note that the FAR Councils relocated the profit language from 15.404-4(a)(3) to 15.404-4(c)(3).

Several commenters disagreed with the elimination of profit on contractor-acquired property.  The FAR Councils heard the objections and modified some aspects of the proposed rule.  But they left intact the elimination of profit/fee on items that the contractor acquires, where those items are not part of a deliverable.

The final rule now states—

15.404-4   Profit.

* * * * *

    (c) * * *

    (3) * * * Before applying profit or fee factors, the contracting officer shall exclude from the pre-negotiation cost objective amounts the purchase cost of contractor-acquired property that is categorized as equipment, as defined in FAR 45.101, and where such equipment is to be charged directly to the contract. * * *

The term “equipment” is defined as—

Equipment means a tangible item that is functionally complete for its intended purpose, durable, nonexpendable, and needed for the performance of a contract. Equipment is not intended for sale, and does not ordinarily lose its identity or become a component part of another article when put into use. Equipment does not include material, real property, special test equipment or special tooling.

Why did the FAR Councils take this approach?  As they wrote in the promulgating comments—

While the application of this policy tended to be obfuscated by the term ‘facilities,’ the underlying principle was clear--that when the contractor buys equipment or acquires real property on a ‘pass through’ basis, i.e., when not part of a deliverable, it is the Government--not the contractor--who assumes the risk. Moreover, it is generally held that upon contract award, contractors are required to furnish all property necessary to perform Government contracts (FAR Part 45.102) as well as all the necessary resources needed for contract performance (FAR 9.104-1(f), General standards).

Accordingly, it is not appropriate for the Government to include the cost of contractor acquired property (equipment) when calculating the Government's pre-negotiation profit or fee objective. Including such costs would unduly compensate the contractor for obtaining equipment it should already have; and for risks it did not incur. This is a long held view; however, up until the publication of the proposed rule FAR Case 2008-011, it had not been adequately addressed in the

FAR.

This policy does not exclude the otherwise allowable cost of depreciation under FAR 31.205-11.

Accordingly, contractors now have a clear disincentive to direct-charge costs of purchasing equipment to their Government contracts.  Instead, we should expect them to include such costs in their overhead rates, as depreciation.  However, given DOD’s recent emphasis on curbing contractor overhead, this strategy has its own pitfalls.

The new rule contains much more than the policy statement noted above.  But this is the one that caught our eye.  Interested readers should follow the link above and review the multi-faceted rule in its entirety.



 


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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.