• Increase font size
  • Default font size
  • Decrease font size
Apogee Consulting Inc

Bribery, Conspiracy, and Espionage: Business as Usual in the Defense Industry?

E-mail Print PDF


This just in—some people are just crooked, and all the business conduct policies and ethics awareness programs in the world won’t do a thing to stop these pieces of out-of-spec humanity from their wrongdoing.  Think we exaggerate?  Read on.

  • Michael Wheeler, a former Lieutenant Colonel in the U.S. Army Reserve, was sentenced in January 2010 to 42 months in prison for “his participation in a wide-ranging bribery conspiracy involving the U.S. government, the Republic of Iraq and the Coalition Provisional Authority - South Central Region (CPA-SC) in Al-Hillah, Iraq,” according to this press release by the Department of Justice.  According to the DOJ—

Wheeler, along with Whiteford and Harrison, conspired from December 2003 to December 2005 with at least three others—Robert Stein, at the time the comptroller and funding officer for the CPA-SC; Philip H. Bloom, a U.S. citizen who owned and operated several companies in Iraq and Romania; and former U.S. Army Lt. Col. Bruce D. Hopfengardner—to rig the bids on contracts being awarded by the CPA-SC so that more than 20 contracts were awarded to Bloom. In total, Bloom received approximately $8 million in rigged contracts. … Bloom, in return, provided Whiteford, Harrison, Wheeler, Stein, Hopfengardner and others with more than $1 million in cash, SUVs, sports cars, a motorcycle, jewelry, computers, business class airline tickets, liquor, promise of future employment with Bloom and other items of value.  Bloom admitted he laundered more than $2 million in currency that Whiteford, Harrison, Wheeler, Hopfengardner, Stein and others stole from the CPA-SC that had been designated for the reconstruction of Iraq. Bloom then used his foreign bank accounts in Iraq, Romania and Switzerland to send some of the stolen money to Harrison, Stein, Hopfengardner and other Army officials in return for them awarding contracts to Bloom and his companies. … On Jan. 29, 2007, co-conspirator Stein was sentenced to nine years in prison for related charges of conspiracy, bribery and money laundering, as well as weapons possession charges Stein was also ordered to forfeit $3.6 million On Feb. 16, 2007, co-conspirator Bloom was sentenced to 46 months in prison for related charges of conspiracy, bribery and money laundering [and] was also ordered to forfeit $3.6 million  On June 25, 2007, Hopfengardner was sentenced to 21 months in prison for conspiracy and money laundering related to this scheme. Hopfengardner was also ordered to forfeit $144,500.  On Dec. 8, 2009, Whiteford was sentenced to 60 months in prison for conspiring to commit bribery and ITSP [Interstate Transportation of Stolen Property]. He was also ordered to forfeit the things of value he received from Stein and others, including a Breitling watch, a Toshiba laptop computer and $10,000 in cash.  On June 4, 2009, Harrison was sentenced to 30 months in prison and ordered to pay $366,640 in restitution. Harrison pleaded guilty on July 28, 2008, admitting that she took more than $300,000 from the CPA-SC while she was deployed there Harrison also admitted that she received a Cadillac Escalade from Bloom and that she helped to move unregistered firearms from a hotel in North Carolina to Stein’s home.  On Dec. 10, 2009, Driver was sentenced to six months home confinement and ordered to pay $36,000 in restitution for his role in laundering portions of stolen CPA money brought from Iraq back into the United States by Harrison, his wife.

  • Also in January 2010, Ryan Scott McMonigle pleaded guilty to “one count of aiding and abetting the solicitation of a kickback” in connection with the award of subcontracts under a US Agency for International Development (US AID) prime contract to restore infrastructure in Afghanistan, according to this DOJ press release.  The DOJ reported that—

McMonigle admitted that he assisted others in the solicitation of a kickback from a private security vendor in return for favorable treatment for this potential bidder in connection with the award of one or more subcontracts. According to court documents, the subcontracts provided for private security services to protect USAID personnel and contractors in Afghanistan operating under the AIRP contract. The charge of aiding and abetting the solicitation of a kickback carries a maximum penalty of 10 years in prison and a $250,000 fine. The maximum fine may be increased to twice the gain derived from the crime or twice the loss suffered by the victims of the crime, if either of those amounts is greater than the statutory maximum. McMonigle is scheduled to be sentenced on Nov. 5, 2010. Bryan Lee Borrows, who was also employed in Kabul by Civilian Police International, pleaded guilty on Sept. 2, 2009, to conspiring with others to solicit kickbacks from private security vendors in return for favorable treatment for those potential bidders in connection with the award of one or more subcontracts. Burrows was sentenced on Dec. 19, 2009, to 12 months and one day in prison for his role in the scheme. In addition, Scott Anthony Walker, of Australia, pleaded guilty on Nov. 16, 2009, to one count of conspiracy to solicit a kickback, related to his role in the scheme. Walker was arrested in the United States on Nov. 11, 2009, and is scheduled to be sentenced on Feb. 5, 2010.

  • Finally, on February 10, 2010, Dongfan “Greg” Chung (age 73) was sentenced to 15 years in Federal prison for “six counts of economic espionage and acting as an unregistered foreign agent of the People’s Republic of China (PRC), for whom the engineer stole Boeing trade secrets related to several aerospace programs, including the Space Shuttle,” according to this article.  Chung was employed by Rockwell International from 1973 until the company was acquired by Boeing in 1996.  He was employed by Boeing until he retired in 2002, but returned as a consultant from 2003 until 2006.  Chung was a naturalized U.S. citizen and held a Secret clearance.  The indictment alleged that, in addition to trying to sell technology related to the Space Shuttle, Chang also tried to sell “trade secrets” related to the C-17 and the Delta IV rocket.  The article stated: Individuals in the Chinese aviation industry began sending Chung “tasking” letters as early as 1979. Over the years, the letters directed Chung to collect specific technological information, including data related to the Space Shuttle and various military and civilian aircraft. Chung responded in one letter indicating a desire to contribute to the ‘motherland.’” The article reported that: “In various letters to his handlers in the PRC, Chung referenced engineering manuals he had collected and sent to the PRC, including 24 manuals relating to the B-1 Bomber between 1985 and 2003, Chung made multiple trips to the PRC to deliver lectures on technology involving the Space Shuttle and other programs, and during those trips he met with officials and agents of the PRC government. Chung and PRC officials exchanged letters that discussed cover stories for Chung’s travel to China and recommended methods for passing information.” According to the article, Chung “begged the court for a lenient sentence, stating he had taken the information to write a book.”  The Judge was not impressed and handed out a long sentence to “provide a strong deterrent to the PRC not to send its agents here to steal American military secrets.” 

Most individuals in the defense industry are good people dedicated to doing the right thing at all times, often motivated by patriotism and a sense of public service.  We don’t want to suggest otherwise.  But these three stories, coming essentially on top of one another, and put in context of other articles we’ve posted recently about fraud and corruption, should remind readers that there is enough wrongdoing to justify all the many auditors and law enforcement officials we encounter in this highly regulated industry.


 

Russia Resurgent?

E-mail Print PDF


While most eyes are focused on “Red” China as an economic juggernaut and near-peer military force (not to mention its best-of-breed cyber-hacker force), Russia may be a growing threat to the U.S., in terms of the traditional measures of military force.  Consider the following –

  1. Here’s an article from RIANOVOSTI that reports that Russia’s new 2010 military doctrine explicitly anticipates preemptive nuclear strikes.  The article notes that Russia’s former military doctrine was adopted in 2000, and “it outlines the role of the Russian military in ensuring the defense of the country and, if necessary, preparing for and waging war, although it stresses that the Russian military doctrine is strictly defensive.”
  2. A follow-up opinion/analysis piece adds that the new doctrine anticipates the use of nuclear weapons “in local conflicts in case of critical threats to Russia’s national security.”  According to the piece: “A critical threat to Russia’s national security can come from different types of conflicts, including a large-scale war with a block of countries, or a hypothetical territorial conflict with one or several militarily developed countries. … Theoretically, such a conflict is possible with Japan if Japanese politicians seeking to use military force to solve the Kuril problem come to power there.”  The piece notes that Russian wargames held over the past decade “showed that only nuclear weapons would save Russia in case of Western aggression.”  The piece concludes with the following, perhaps somewhat chilling, statement:  “Russia now intends to use its military force when and where necessary, and against any opponent.”
  3. Russia is developing a new stealth fighter to counter the F-35 “Lightning II” Joint Strike Fighter.  Known as the PAK-FA or T-50, the new fighter is causing some consternation amongst those who follow global airpower.  This Australian blog post carries a quote on the T-50 that’s worth considering.  (Remember that Australia is currently pondering whether to purchase F-35s or make do with F/A-18s.)  The quote, from Peter Goon of Airpower Australia, discusses various T-50 photos released by Russia and says:  “This is but one small part of the analysis that goes to show that those who think Sukhoi have a long way to go and many risks to overcome to develop this aircraft to operational status are card bearing members of the don’t know what they don’t know about things they are not equipped to understand part of our society.

  • France has agreed to sell Russia “one or more” Mistral-class Landing Helicopter Dock (LHD) ships, according to many reports, including this article.  These ships are 200 meters long, “capable of carrying 900 troops, 35 helicopters, and 70 land-going vehicles….”  This opinion piece at The Economist notes—

The ship involved, the Mistral, is not just any hunk of steel. It is a 200m long warship, whose job is to land soldiers, helicopters and armored vehicles on foreign shores. It can carry 15 helicopters, 13 tanks or several hundred troops (different reports talk of 750 soldiers, or a 1,000). After one of these hefty ships paid a port visit to St Petersburg, in November 2009, Vladimir Putin said on a visit to Paris: I can assure you that if we purchase this armament, we will use it wherever deemed necessary.


A recent Washington Post article quotes an anonymous defense official as downplaying the differences between the two countries, saying “We consider Russia a partner and friend in promoting stability and security in the region."  Recent events make us wonder whether such optimism is warranted.



 

Proposed Inflation Adjustments to Acquisition Thresholds

E-mail Print PDF


On February 4, 2010 the FAR Councils published a proposed rule that will lead to changes in key acquisition thresholds.  This year’s notice of proposed changes is the second of a series of notices that is mandated by the 2005 National Defense Authorization Act, which linked the thresholds to inflation experienced over a 5-year period.  In other words, the FAR Councils are required to revise/update the thresholds every five years (in years evenly divisible by five).

The proposed changes are linked to changes in the Consumer Price Index (CPI) including a projection through April 2010.  If the final CPI change is different from the projected change, then the final thresholds might be different.  That said, the rule proposed to revise key thresholds as follows—

· Increase the simplified acquisition threshold from $100,000 to $150,000.

· Increase the commercial item test program ceiling from $5,500,000 to $6,500,000.

· Increase the threshold for obtaining cost and pricing data from $650,000 to $700,000.

· Increase the threshold for requiring a (non-construction) prime contractor’s subcontracting plan from $550,000 to $650,000.

· Increase the threshold for requiring a construction prime contractor’s subcontracting plan from $1,000,000 to $1,500,000.

The changes listed above create ripple effects throughout the FAR.  However, readers should note that there are no changes to other statutory requirements.  For example, there are no changes to Cost Accounting Standards (CAS) thresholds.  Nor are there any changes to thresholds applicable to the Davis-Bacon Act, the Service Contract Act, or to any trade agreements.

Many contractors tie their internal policies and procedures to the Federal acquisition thresholds.  Consequently, when thresholds are revised in the FAR, they may want to evaluate the impacts on their internal command media.  We encourage a thorough review of the proposed threshold changes, to assess how internal guidance might be impacted.



 

Glimpse the (Unclassified) Future in DARPA’s FY 2011 Budget Request

E-mail Print PDF


We were fortunate to find DARPA’s FY 2011 Presidential Budget Request file while searching the DARPA website.  DARPA, of course, is the Department of Defense’s Advanced Research Projects Agency, where the future of U.S. military technology is funded today.  Let’s be clear:  just because DARPA asks for funding is no guarantee the agency will receive it.  That said, looking at the budget request (link here) is a glimpse into the future.

The budget request discusses cognitive computing systems and machine intelligence, network-centric warfare technology and “materials and biological technology.”  It’s science fiction, except that it’s a list of the military research areas of today.  For example, DARPA is requesting $53.8 million for –

investigating and developing the intersections of biology, information technology and micro/physical systems to exploit important technological advances and leverage fundamental discoveries for the development of new technologies, techniques, and systems of interest to the DoD. This research is critical to the development of rapid responses to engineered biological warfare agents, radically new biomolecular computers, and novel materials for the DoD. Programs in this project will draw upon the information and physical sciences to discover properties of biological systems that cross multiple scales of biological architecture and function, from the molecular and genetic level through cellular, tissue, organ, and whole organism levels. This project will develop the basic research tools in biology that are unique to the application of biological-based solutions to critical Defense problems.

Here’s another project description that caught our eye:  “The program will also create technology to reliably integrate nanoscale and microsystems payloads on insects that will extract power, control locomotion, and also carry DoD relevant sensors.”  Talk about bugging the opposition forces!

Or how about this one?

One focus is on techniques that can efficiently process and understand massive data streams. Deeply layered machine learning engines will be created that use a single set of methods in multiple layers (at least three internally) to generate progressively more sophisticated representations of patterns, invariants, and correlations from data inputs. These will have far-reaching military implications with potential applications such as anomaly detection, object recognition, language understanding, information retrieval, pattern recognition, robotic task learning and automatic metadata extraction from video streams, sensor data, and multi-media objects.

Or this one?

The Programmable Matter program will develop a new functional form of matter, constructed from mesoscale particles that assemble into complex 3-Dimensional (3-D) objects upon external command. These objects will exhibit all of the functionality of their conventional counterparts and ultimately have the ability to reverse back to the original components.

In other areas, we learned that DARPA recently “Devised full characterization and manipulation of entangled quantum systems,” and also that NACHOS stands for “Nanoscaled Architecture for Coherent Hyper-Optic Sources.” 

This one might scare you.

The Magneto Hydrodynamic Explosive Munition (MAHEM) program will demonstrate compressed magnetic flux generator (CMFG)-driven magneto hydrodynamically formed metal jets and self-forging penetrators (SFP) with significantly improved performance over explosively formed jets and fragments. Explosively formed jets (EFJ) and SFP are used for precision strike against targets such as armored vehicles and reinforced structures.  MAHEM offers the potential for higher efficiency, greater control, the ability to generate and accurately time multiple jets and fragments from a single charge, and the potential for aimable, multiple warheads with a much higher EFJ velocity, hence increased lethality precision, than conventional EFJ/SFP.

There is more, of course, roughly 500 pages of discussion.  What brought us to the budget request was some research on the ArcLight Program.  This is not the Vietnam-era program that used B-52’s.  Instead, it is an attempt to design and build a long-range hypersonic strike weapon.  The concept uses the Navy’s SM-3 Block II booster stack and a hypersonic glider, and should be “capable of being launched from a Mark 41 Vertical Launch System (VLS) tube.”  In other words, DARPA is researching dropping a 100-200 lb. payload from up to 2,000 miles, at hypersonic speeds.  If one were to speculate that the MAHEM warhead (described above) might be mated to the ArcLight missile that would be a formidable piece of ordnance, indeed.

In this article, Aviation Week not only mentions the ArcLight program, but other projects within the DARPA budget request.  We don’t think AW’s summaries are a cool as the actual DARPA descriptions, though.

Check out the budget request.  See the future of warfare.


 

Fraud is Expensive—But is it Expensive Enough?

E-mail Print PDF


In October, 2009 we wrote about the serious fraud charges facing BAE Systems PLC.  We noted allegations of “bribery and corruption in arms deals in South Africa, Romania, and the Czech Republic dating back to the 1990’s.”  Britain’s Serious Fraud Office (SFO) was seeking an admission of guilt as well as payment of fines ranging from £500 to £1billion (US$1.6 billion to $3.2 billion at the currency conversion rates in effect at the time).  At the same time, the U.S. Department of Justice (DOJ) was conducting an investigation into allegations that the US-subsidiary of BAE Systems “used a U.S. bank to funnel bribes to Saudi Arabian officials.”    We predicted that, “given the current U.S. government stance on contractor integrity and ethical conduct, a sustained finding in this area could prove problematic for the company,” since it derived slightly more than half of its £18.5 billion pounds annual revenue from U.S. operations.

Reports have emerged that on February 5, 2010, BAE Systems settled its case, agreeing to pay the U.S. $400 million to settle charges of making a False Statement and agreeing to pay the SFO £30 million (US$47 million) for improper accounting (“breach of its duty to keep [accurate] accounting records”) in connection with a payment to a former consultant in Tanzania.  The settlement permits BAE Systems to avoid suspension or debarment, and thus to continue to bid on U.S. government contracts.  As such, it is seen as a victory for the company; its stock price rose 1.6% on the day of the announcement.

According to the WSJ article linked above—

[BAE’s CEO] on Friday stressed that the transactions in relation to which the company pleaded guilty all occurred nearly a decade ago and outside the U.S.  U.S. court documents detailed what prosecutors allege was BAE's use of secretive offshore entities and shell companies, and its efforts to conceal where payments were going, in 1999 deals to lease fighter jets to Hungary and the Czech Republic. According to prosecutors, BAE avoided communicating with so-called marketing advisers in writing and maintained scant information about its payments. After 2001, prosecutors allege, BAE made payments totalling more than £135 million and an additional $14 million-plus to marketing advisers through one offshore entity, according to the court documents. The U.S. filing also alleges that BAE paid tens of millions of dollars to a Saudi government official and other associates, as well as to intermediaries, as recently as 2002. The payments were made as part of its management of a long-term agreement begun in the 1980s between the U.K. and Saudi Arabia to supply military hardware to the Saudis, U.S. prosecutors say.  ‘Beginning in 1993, BAE [Systems] knowingly and willfully failed to identify commissions paid to third parties for assistance in the solicitation or promotion or otherwise to secure the conclusion of the sale of defense articles, in violation of its legal obligations,’ the court documents filed by Justice Department prosecutors said.

Interestingly, the false statement stemmed not from the payments themselves, but from management’s assertions and certifications regarding its commitment to ethical business conduct.  As the WSJ article reports, “In the court documents, prosecutors allege that BAE promised to institute antibribery programs and filed false documents to the U.S. Defense Department stating it had implemented such programs when none existed.”

According to the Financial Times, “BAE ‘undertook no adequate review’ of any of the services it gave the official, the DoJ said, even when the BAE employee who was handling the matter submitted $5m in invoices. The DoJ said that until early 2002, the company transferred millions more to an account in Switzerland controlled by an intermediary, though the company ‘was aware that there was a high probability’ that the payments would be transferred to the Saudi official.”

We have discussed the Foreign Corrupt Practices Act (FCPA) before.  We have also discussed, in passing, the False Statements Act (18 U.S.C. 1001).  This is an interesting blending of the two statutes.  The U.S. DOJ certainly earned its $400 million settlement.

In the U.K. though, watchdog groups are not as sanguine about the paltry settlement negotiated by the SFO.  This report from the BBC states that the “Campaign Against the Arms Trade” (CAAT) was “shocked and angered” by the settlement, as well as “outraged and angry,” and ‘dismissed the UK fine as a “tiny price” for the lucrative deals the company struck.  The CAAT spokesperson asserted that “Ultimately the charges that we see admitted are administrative charges, not charges of corruption."

This Financial Times article quotes a former African National Congress MP as calling the settlement a “travesty of justice.”  Certainly, US$400 million is no small fine—but does the UK settlement of $47 million represent a mere slap on the wrist?  What do you think?  Members are encouraged to leave their comments below.




 


Page 248 of 278

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.