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Apogee Consulting Inc

UPDATES: Agility Replaced, F-35 Ramp-Up Flattened

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A couple of quick updates to stories we have been following.

Agility Replaced

First, we recently posted an article on Kuwait-based Agility (formerly Public Warehousing Corporation), the Mid-East’s largest logistics firm—supplier of food services to U.S. troops based in Jordan, Kuwait, and Iraq.  We told you about allegations of fraud and violations of the False Statements Act and False Claims Act—among other allegations.  Although charges were originally unsealed in November, 2009, reports had surfaced of “delays” in the case, as the parties apparently attempted to settle charges out of court.  That effort did not appear to be progressing well, as we reported that the Department of Justice prosecutors had “expanded their case” by filing charges against two of Agility’s subsidiaries.

Agility published a release upon learning of the expanded charges, calling them “regrettable”.  Yes indeed.  Agility would indeed regret its inability to settle the charges—because just three days later, on April 15, 2010, news agencies reported that Agility was being “replaced” by the Defense Logistics Agency (DLA) as its food service provider.  For example, Reuters reported that Agility had announced it was being replaced, but that DLA had decided to have Agility continue to provide services for another six months “to guarantee continuity of supplies.” 

The new food service provider was not disclosed by either Reuters or Agility.  However, we subsequently learned that DLA has awarded the $2.2 billion follow-on contract to Dubai-based ANHAM FZCO.  The new contractor published a press release, in which it said “It is with great gratitude and a compelling sense of duty that all at ANHAM welcome the award to expand our support for those serving in the Middle East.”

F-35 Ramp-Up Flattened

Second, we have been following the “rough ride” of the F-35 Lightning II Joint Strike Fighter (JSF) for some time.  Our original F-35 article was the most popular article on this site (until recently overtaken by our article on Senate hearings regarding DCAA audit quality failures).  In that original F-35 article, we explored whether Lockheed Martin, the aircraft’s prime contractor, could ramp-up production to 20 aircraft per month or 240 planes per year (i.e., one per working day), producing three variants on one production line.  We were dubious, but willing to give LockMart the benefit of the doubt.  We concluded—

To sum up, the JSF program team has set for itself an incredibly ambitious goal of producing a finished aircraft every single working day. It’s set the goal despite early design and supply chain problems, and despite almost universal history among other aircraft programs that says it can’t be done. But at least the team has identified some worthy companies to benchmark against and learn lessons from. The question remains, however, whether the program team can forget the defense industry’s historical program management practices – that don’t work well in the 21st century – and deploy a truly innovative approach that breaks new ground. If they can, then they may have a chance.

We would note that the F-35 continues to receive press.  In fact, it’s a rare week that doesn’t have some story—either positive or negative—about the JSF program.  Several reports have focused on even more program cost growth.  For example, this BusinessWeek/Bloomberg article reports that an additional $51 billion in cost growth—over and above the $328 billion price just reported to Congress on April 1, 2010—may soon be reported, once the Pentagon has completed its in-process JET II analysis.  Of course, LockMart disputes the “worst-case scenario” program value.

On the other hand, this DODBuzz.com article reports on Senate hearings in which testimony asserted that the JSF production has “turned the corner” and “that the most recent restructuring of the JSF program will deliver an aircraft without further cost increases or delays in delivery.”  We note this statement buried in the middle of the article—

We’ve turned the corner on production line delays, said Air Force Lt. Gen. Mark Shackelford, the service’s top buyer, who expects to take delivery of the first test aircraft this year. The jump in the JSF’s price tag and the delays were due primarily to small design changes, which while minor, rippled through the production line causing excessive churn and stress. That production line is now well on the way to maturing, he said. He declared the F-35 airframe itself as solid; although the plane’s software package has proven a bit more problematic.


We could devote an entire article to that one paragraph, discussing risk management, supply chain management, change management, software management, and program management.  But we’ll refrain and simply note that there’s a Masters’ thesis to be mined in that motherlode.

Finally, on April 16, 2010, InsideDefense.com reported to its subscribers that the Air Force had halted plans to increase JSF production to 110 aircraft per year, and has decided to “top-out” its purchases at 80 planes per year, starting in GFY 2016.  The article quotes Air Force Chief of Staff General Norton Schwartz as saying, “As the program continues to progress, we will analyze production capacity and available funding for potential production rate adjustment beyond the 80 aircraft per year rate reflected in the current program.” 

The article further notes that Lockheed Martin stated “that once its … assembly line reaches its optimal production rate in 2016, it could build as many as 230 jets per year”—so LockMart is ready “to build more jets if requested.”

It may not matter what Lockheed Martin’s throughput is, or will be, if its No.1 customer (the USAF) doesn’t have the funding to purchase any more than 80 aircraft per year.  It will be an interesting exercise to calculate how much F-35 program cost growth will be driven—or how much LockMart will claim was driven—by lost economies of scale if production peaks at 80 jets per year versus 240 (or 230, depending on the article).  This situation may degenerate into a “he said/she said” finger-pointing exercise, where the Air Force says that LockMart could only produce 80 aircraft per year and any lost volume savings stemmed from its own inadequacies, while LockMart accuses the Air Force of delay and/or disruption because its lack of available funding kept LockMart from reaching available production efficiencies.

We predict a continued rough-ride for the JSF program—as well as smooth seas and fair winds for the attorneys involved in the nearly inevitable litigation.




 

Proposed FAR Rule Would Make Certain Labor Relations Costs Unallowable

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One of President Obama’s first actions as President was to issue Executive Order No. 13494 (“Economy in Government Contracting”) on January 30, 2009.  It was subsequently amended on October 30, 2009.  The Executive Order “provided that to promote economy and efficiency in Government contracting, certain costs that are not directly related to the contractor's provision of goods and services to the Government shall be unallowable for payment.” It purported to accomplish its goals by making unallowable almost all costs associated with efforts “undertaken to persuade employees to exercise or not to exercise, or concern the manner of exercising, rights to organize and bargain collectively.”  The Administration argued that this policy revision was consistent with prior Federal government policy to “remain impartial” with respect to labor-management disputes involving government contractors.

As our readers know, however, in order to implement such a policy change, the Federal Acquisition Regulation (FAR) must be changed via the public rulemaking process, which provides the public at large with an opportunity to comment—and perhaps affect—the regulatory language.  We at Apogee Consulting, Inc. recently participated in that process, when we provided the DAR Council with our comments on a proposed revision to the Defense Federal Acquisition Regulation Supplement (DFARS) that would significantly affect how DCAA audits contractor internal control systems.

So it was not surprising when, on April 14, 2010, the FAR Councils published a proposed rule that would, if implemented as drafted, revise the Cost Principle at 32.205-21 (Labor Relations Costs) to make unallowable—

…costs of any activities undertaken to persuade employees, of any entity, to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees' own choosing are unallowable.

Examples of unallowable costs in paragraph (b) of this section include, but are not limited to, the costs of--

    (1) Preparing and distributing materials;

    (2) Hiring or consulting legal counsel or consultants;

    (3) Meetings (including paying the salaries of the attendees at meetings held for this purpose); and

    (4) Planning or conducting activities by managers, supervisors, or union representatives during work hours.

Importantly, other costs of efforts “to maintain satisfactory [labor] relations between the contractor and its employees”  are still made expressly allowable by the revised rule.

As always, comments on the proposed rule may be submitted by following the directions in the Federal Register notice (link above).

 

Former COTR, Army Colonel, Pleads Guilty to Accepting Gratuities in Iraq

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On April 13, 2010, the Department of Justice (DOJ) announced that Kevin Davis, of Springdale, Maryland, had pled guilty to three counts of accepting gratuities from a contractor during his deployment in Iraq.  Davis is a retired U.S. Army Colonel and former Contracting Officer’s Technical Representative (COTR).  The DOJ press release provided the following details—

Col. Davis served in 2004 as the senior member of the source selection board responsible for the award of a contract valued at nearly $12 million to build and operate several Department of Defense warehouses around Iraq. In the period during and after the solicitation of the warehouse contract, Davis accepted two airplane tickets and $50,000 in cash from the contractor who submitted the successful bid for the contract. Davis admitted that he accepted the airplane tickets and money with the understanding and belief that they were for or because of his assistance to the contractor who received the warehouse contract.

The DOJ press release reported that “Davis faces up to two years in prison and a fine of $250,000 per charged count. In addition, Davis agreed to pay $62,500 in restitution to the United States. A sentencing date has not yet been scheduled by the court.”  Clearly, this officer was no gentleman.  Moreover, as a COTR and member of a source selection board, he had received special, focused, training regarding procurement integrity.  We would have thought this man would have been much smarter than his actions make him out to be.

We have previously noted that fraud seems to be everywhere.  We’ve also noted that the press gives a lot of play to stories of alleged contractor fraud, but seemingly does not give similar play to stories of bribery and fraud on the part of government officials.  This website aims to present a more balanced approach, reporting bribery, fraud, and other similar wrongdoing in the public procurement process wherever it is found.  We report on these items so that government contractors can learn from them, and tighten controls and increase scrutiny into the actions of their employees, so as to prevent similar occurrences.

Much to our frustration, the message does not seem to be received.  Consequently, we expect many future stories of government/contractor corruption.



 

OFPP Establishes Executive Compensation Ceiling for 2010

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The Office of Management and Budget’s (OMB) Office of Federal Procurement Policy (OFPP) has published its annual Executive Compensation Benchmark in the Federal Register. The 2010 Executive Compensation Benchmark ($693,951) establishes the GFY 2010 ceiling for Executive Compensation for those contractors subject to the allowability requirements of the FAR 31.205-6 (Compensation) Cost Principle. Executive compensation amounts (as calculated pursuant to the Cost Principle at 31.205-6(p)) in excess of the OFPP Benchmark are unallowable for the top 5 highest-paid executives of the corporation and each of its segments. It is important to note, however, that compensation amounts below the ceiling value are still subject to the "reasonableness" test of allowability. In other words, DCAA auditors will not automatically accept executive compensation amounts as allowable, even if total compensation is below the OFPP ceiling.

The 2010 amount represents a nearly de minimus $9,770 (or 1.4%) increase over last year’s value.  Perhaps that’s not an unreasonable escalation factor, given the past year’s economic situation.  We’ve never been able to get a clear understanding of how the OMB and OFPP calculate the value.  If you have a strong understanding, please post a comment below.

View the full notice here.




 

Another Southwest Asia Contractor Under Fire

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Whether you call them Public Warehousing Company KSC (PWC) or Agility, they are facing quite a few charges by the Department of Justice (DOJ), stemming from their work in Southwest Asia (aka Iraq and Afghanistan).  Reportedly, PWC (or Agility, as the company is now known) won roughly $8.5 billion worth of contracts to provide food services for U.S. troops stationed in Iraq, Kuwait, and Jordan.

In November 2009, PWC was charged in a six-count indictment with “conspiracy to defraud the United States, committing major fraud against the United States, making false statements, submitting false claims and wire fraud,” according to this CNN story.  Essentially, the indictment alleged that PWC “submitted false information and manipulated prices to overcharge for food,” and was based on a qui tam (whistleblower) suit under the False Claims Act, filed by Kamal Mustafa al-Sultan, “the owner of a Kuwaiti company that had partnered with Public Warehousing to submit a proposal on the food supply contracts.” 

The CNN story reported that—

According to the indictment, the company violated the False Claims Act by presenting false claims for payment, overcharging for locally available fresh fruits and vegetables, and failing to pass along to the U.S. government rebates and discounts it had obtained, as required by its contracts. 

This New York Times article provided further details and some additional quotes, as follows—

Barbara E. Nelan, assistant United States attorney, said that during a 41-month period from 2003 to 2007, the company deprived the government of $62.2 million by inflating the cost of local fruits, vegetables and other perishable items.  ‘That was just 41 months of the 76 months that a contract has been in place, and it was just for one part of the fraud,’ she said.  The company was awarded a contract for $934 million in 2003. It received new contracts for $1 billion and $6.6 billion in 2005.  Prosecutors said the company double-charged the government for certain transportation costs and did not pass along discounts that it received from vendors. The Department of Justice plans to file a related civil lawsuit against the company and may eventually file charges against individuals within the company.  ‘This is the first step in what we expect to be a long process,’ Ms. Nelan said.

As might be expected, PWC denied the allegations.  In a published statement, the company stated—

PWC has for some time worked with the government to seek a mutually agreeable resolution to this contract dispute and is surprised and disappointed that the government has decided to take this action. The company has been the principal food supplier for the U.S. military in Kuwait and Iraq since 2003. The prices it charges have been negotiated with, agreed to, and continually approved as by the U.S. government since then. The government has consistently found PWC's prices to be fair and reasonable.   Since 2006, the company's ‘fill rates’ - the number of cases of food accepted compared with the number ordered - were consistently more than 99 percent, a number that exceeds the fill rates of U.S. domestic service providers. That means that PWC was more successful in delivering food and other items to the military in a hostile war zone than other vendors have been within the safe environs of the continental U.S.   The company has long cooperated with government reviews, inspections, audits and inquiries necessary to ensure taxpayer dollars are being spent appropriately.

More recently, the Navy Times reported that “Prosecutors have expanded their case” against Agility “by charging two of the company’s subsidiaries with inflating prices and defrauding the U.S. government.” The article recapped the prior charges, but noted additional details, including that—

The company also [allegedly] inflated fees by asking vendors to manipulate the way the products were packed, enabling it to bill the government twice as much as it should have, prosecutors said. And they said the firm encouraged a vendor in the state of Georgia to conceal fees that should have been paid to the company, leading to inflated prices.

The Navy Times also noted that the case “has slowed in recent months” because—

Several court hearings have been delayed as the company worked to reach a settlement with prosecutors. And the firm’s lawyers have argued that prosecutors failed to properly serve the company because it sent the indictment to the company’s U.S. subsidiaries instead of through diplomatic channels in Kuwait.

As we have previously discussed, the Federal government takes a dim view of companies they view as holding federal funds that don’t belong to them, such as when there is a failure to pass on rebates or credits in compliance with the Credits cost principle found at FAR 31.201-5.  Regardless of whether Agility has complied with its contract terms, merely being accused of violations of the False Claims Act gives a company a “black eye” – leading to reputational and other brand damage.  That’s what has happened to PWC/Agility, as this blog entry demonstrates.  (Note:  as with many blogs, this one expresses the author’s rather extreme opinion … vividly.  You have been warned.)



 


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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.