Another Year of Living with ACO Craig Studley and Attorney P. Davis Oliver!

We got the Scheduling Order yesterday. It sets out a preliminary timeline for the discovery process that stretches to at least April of 2014, before we know if we have a chance to potentially tell our story to a judge. This, the discovery process, is when we get to go back and ask ACO Studley to please provide proof that the Government paid Quimba $155,271.77, as he claimed in the COFD that started this whole mess. While at it, we’ll probably also ask him to detail just how much effort (read: Taxpayer’s Money) it took for him to produce this lovely mistake.

I’ll be honest with you. This is going to be an expensive process but, frankly, given that DCMA has declared war against small business contractors, it would be worthwhile to force these, uh, people (for lack of a better word!) to publicly acknowledge how, judging by the results, they apparently approach their taxpayer-funded jobs in a willy-nilly, who-cares-cuz-suing-us-is-expensive approach.

I mean, seriously… There was ONLY one payment on this contract in 2004 and the good ACO Studley got it wrong. How competent of an ACO does he expect we should think he is? Then he outright refused to correct his error. How fair-minded of an ACO does he expect we should think he is?

Of course the question of where ACO Studley’s supervisors were while he embarked on destroying a small business, is entirely another interesting topic that we fully intend to explore in our Tort claims against both DCMA and ACO Studley.

We may also get a chance to explore why the DOJ attorney, Mr. P. Davis Oliver, admitted in his response to our Complaint that the Government did make a mistake but, nonetheless, asked the Judge to validate the erroneous debt, as reported in this post. Further, I don’t mind sharing my own personal opinion that if anyone is defecating on the US flag by ignoring the values the Ol’ Glory stands for, it is Attorney Oliver who, as an attorney for the Department of Justice, should not try to “win at any cost or by any means.”In other words, since he knows (he wrote the response to our Complaint) that the ACO made a mistake, I feel attorney Oliver had a duty to rescind the debt. I promise you that, rules of professional conduct aside, 99% of taxpayers would want the Justice department to be the JUSTICE department and not behave like the LITIGATION branch of some multinational law firm that represents Colombian Drug Lords.

The Scheduling Order is here and, for convenience, ACO Studley’s COFD is here.

People in this post:
Bob Dourandish – bob@quimba.com
Craig Studley – ACO, DCMA – Craig.Studley@dcma.mil
P. Davis Oliver, Esq. (DOJ Attorney) – P.Davis.Oliver@usdoj.gov

Response to Our $15M Tort Claims Against DCAA

As I reported in this post, we had heard from the Government on our Tort claim against DCMA. This week we also heard back on the two claims that were filed against DCAA, one on behalf of Quimba Software, and one on my own behalf.

Surprisingly, the response mixed the two DCAA claims in one communication; surprising of course, because not only the two have different plaintiffs, in the legal sense, they also have distinct causes. That aside, the response was largely administrative and, again, postured that these claims are not Tort claims because of there was a contract involved. The Government’s initial response to our administrative filing is here.

The basis of the corporate claims was auditor’s negligence in applying the WRONG version of FAR to our cost audit. Seriously! Can you believe this? Wouldn’t you think this be the very first lesson at the auditor school? Or should be? Well, the auditor, Amanat Sulehria, got it wrong. We believe that is the pinnacle of negligence – if not gross negligence and malpractice all at once – when the auditor can’t get the most fundamental element of the audit right. Lucky for us, the ACO actually caught it and documented the error in writing. Our claim also named the auditor’s supervisor, Robert Miller, because given the severity of the error, we feel it is clear that Mr. Miller simply rubber stamps the auditor’s reports without exercising sufficient supervisory control to ensure such mind-boggling errors do not occur. Finally, we also named Tina Fletcher, the then-director of the branch, for failing to implement responsible, or at least minimally sufficient, quality control policies at the branch. Our response to the corporate claim is here.

The basis of my own individual lawsuit is that the auditor violated my civil rights due to my national origin. This claims is made based on the fact that the auditor insisted on per-emptively applying FAR clauses to the audit (more on this later). My response to the individual claim is here.

Added together, the claims are asking for $15M+ in costs and damages because the Government employees’ actions have, for all intents and purposes, destroyed the company’s momentum, if not eventually causing it to fail altogether, and inflicting significant professional, financial, and emotional harm on the company’s founders.

Of course, while no one here expects an easy fight on this, we do feel that it is time for someone to stand up to the DCAA and DCMA employees’ abuse of small business, and inexcusable incompetence that is negligent, even in the best light and giving them all the benefits of doubt.

We also feel that both DCAA and DCMA management actually foster incompetence and negligence within the auditor and ACO ranks, because, I’ll bet, in 9 out of 10 cases the business, particularly the small business, will be beat into submission, accept whatever the ACO or auditor offers, and tries to move on – which, of course, reduces contract values. If our gut feel is true, this has to be one of the most appalling practices implemented in the name of the Ol’ Glory.

Stay tuned…

People in this post:
Bob Dourandish – bob@quimba.com
Craig Studley – ACO, DCMA – Craig.Studley@dcma.mil
Amanat Sulehria – Auditor, DCAA – Amanat.Sulehria@dcaa.mil
Robert Miller – Audit Supervisor, DCAA – bob.miller@dcaa.mil
Tina Fletcher – BranchDirector, DCAA – Tina.fletcher@dcaa.mil
Lannette J. Moutos, Esq. – Chief, Litigation & Claims Division of the Army’s Office of Staff Judge Advocate – No email on file.

Stand-alone Copy of the COFD

I got a couple of emails and one comment requesting the COFD. My apologies for not having posted the stand-alone version earlier; it had only been posted as part of other documents. For anyone who is interested, I just posted the entire, un-redacted, unabridged COFD here.

Thanks everyone for your statements of support.

Bob

First Response to our FTCA Claim (Quimba v. DCMA)

As I reported in this post, we filed three claims under the Federal Tort Claims Act (FTCA) – one against the employees of DCMA, and two against the employees of DCAA. Of the latter, one was filed on behalf of Quimba and one on my own behalf.

I was surprised to receive a response on the DCMA claim so quickly. The response was signed by Lannette J. Moutos, Esq., who is the Chief of Litigation & Claims Division of the Army’s Office of Staff Judge Advocate which, apparently, is the responsive organization for at least this FTCA claim.

The response was largely administrative, though with a few interesting odds and ends but also included an indication of their initial reaction, posturing that the claims is barred from FTCA because it is contract related. We of course disagree.

For those of you who are tracking this whole mess as a case study, the original response from Ms. Moutos is here and you can find our full response here.

If you download their response, you will note that it includes three copies of the first page of our SF95. This is not an error on our part. Their response did include three copies of the page and in keeping with our policy to, as much as possible, not alter documents that we post, we kept the original content. It is, however, a bit disconcerting since we did file three separate FTCA claims and this may be an indication of a mix-up on their part. We figure to give it a couple, three weeks to see if we hear on the other two claims, and if not, we’ll of course send an inquiry.

More fun…

People in this post:
Bob Dourandish – bob@quimba.com
Craig Studley – ACO, DCMA – Craig.Studley@dcma.mil
Lannette J. Moutos, Esq. – Chief, Litigation & Claims Division of the Army’s Office of Staff Judge Advocate – No email on file.

Another DCAA and DCMA Dishonorable Policy

Those of you who follow this blog know that occasionally I veer from focusing entirely on our case and address related issues that may be important to the contractor community – or perhaps only to me! The matter of “Permitting the email client to send back a return-receipt,” if requested by the sender, is one of them.

It seems that most DCAA and DCMA employees block this feature in their email client and you almost never get confirmation that any of these, uh, professionals, got an important, possibly time-sensitive emails you send them. While this is your basic, annoying, every day, small-time yokel, unsophisticated stooge tactic, the fact that many of the DCAA and DCMA employees use it seems to point to a DCMA- and DCAA-wide policy of raising as many barriers to communications as possible.

I find this type of deliberate nuisance to make it harder for citizens to communicate with a taxpayer-funded agency absolutely dishonorable.

Let me know if you disagree.

Quimba Asks Attorney General Eric Holder for Help

In a previous post, I reported that despite a number of attempts we have been unsuccessful in getting anyone at Justice to take a look at their attorney’s handling of our case. While we don’t know to what we should attribute this shyness, we finally ran out of patience and wrote the Attorney General, asking for his help. In that letter, I wrote: “The Complaint is against one of your attorneys who, appears to me, is attempting to make litigation as expensive as possible for a small business in order to, effectively, extort a settlement to a case, despite admitting (in court filings) the government’s error, which is the cornerstone of the dispute.”

We are not sure what, if anything, this will get us. The letter to AG Holder is posted here in full. The letter references documents that have been previously posted on this site. The complaint filed with the Department of Justice Inspector General (DOJ/IG) is posted in full here. The response from the DOJ/IG, also in full, is posted here.

An’ da fun jus’ keepz on comin’….

People in this post:
Bob Dourandish – bob@quimba.com
P. Davis Oliver, Esq. (DOJ Attorney) – P.Davis.Oliver@usdoj.gov
The Honorable Eric Holder (US Attorney General) – No email on file.

Administrative Claims Filed Against DCAA and DCMA Employees

Today, March 4, 2013, is the two year anniversary of ACO Craig Studley’s Contracting Officer’s Final Decision (COFD) that put us on the litigation path. It was therefore the last day we could file an Administrative Claim against several of DCAA and DCMA employees, due to the two year statutory filing deadline for any action under the Federal Tort Claims Act (FTCA).

So we did. Three more lawsuits are now under way! Sad, isn’t it?

Claims Against DCAA Employees
An administrative claim was filed against three DCAA employees: Amanat Sulehria, the auditor, Robert Miller, his supervisor at the time of the audit, and Tina Fletcher, branch director at that time. We alleged negligence and professional malpractice against the auditor. That, of course, is not a surprise as almost all claims against government employees use the same terms. The key to the reasonableness of the allegation is auditor actions. In our case, the auditor applied the wrong version of FAR. Minor detail, eh?!! Given our history with the auditor (he had twice been removed by his management after he raised an issue and we pushed back), we are certain that, as we alleged, the audit results were pre-determined and in his rush to get even with us, he applied the wrong version of FAR. How do we know it was the wrong version? Well, the ACO caught it and documented in writing of course! Yep, we did get lucky there. No arguments. This claim is posted here in full.

We also alleged negligence against the auditor’s supervisor, Robert Miller, since, it appeared to us, he simply rubber stamped the final audit report and failed to put in place supervisory controls to ensure mistakes like this won’t happen. I mean, really… the wrong version of FAR? How basic is that?

Finally, we also extended the same allegations to Tina Fletcher, who at the time was the branch director, for failing to put in place supervisory controls to ensure error-free audits, certainly when it comes to something remedial as to which version of FAR is applied to an audit.

A second administrative claim against the above three employees of DCAA was also filed by Bob Dourandish (that’d be me) alleging violation of my civil rights by the auditor, Amanat Sulehria. This gets a little complicated… This whole mess exists because we were deferring salaries while waiting for DCAA to review and approve our accounting system and interim rates. Of course, those of you familiar with the process, know that DCAA only approves (permits) one invoice while this process is taking place. If you don’t, ping me and I’ll forward an email from a DCAA audit supervisor that says just that. Anyway, that was 2004. Amanat Sulehria moved to disallow the deferral. We argued that he was being pre-emptive and lacked any proof that if the government paid us, we would still be deferring salaries.  In the claim, I allege that he took an extraordinarily harsh and pre-emptive stance with us because of my National Origin and, in doing so, violated my civil rights.  This claim is posted here in full.

I know a bunch of you familiar with this lovely world are just itching to fire off an email. So let me see if I can save you a bit of time:

• Violating someone’s civil rights is not an exception to FTCA. The Supremes have (so far) viewed the exceptions as “if it’s not on the list, it could be, though not necessarily, included.” For example, while malice is specifically excluded (with the exception of some Law enforcement and investigative personnel), intentional infliction of emotional distress has been allowed under FTCA. I believe the auditor took a harsh stance with Quimba to specifically punish me, one of its two co-founders, because of my national origin. This of course is going to be a long road and my guess is that DOJ is going to push it all the way to the Supreme Court. That’s the bad news. However, I believe there is enough in auditor’s actions to satisfy reasonable doubt.  The good news, of course, is that since this is filed as an individual, I get to prosecute it pro se and always did think it’d be kinda, you know, cool ‘n stuff to argue a case before the Supremes!

• Those of you who know DCAA processes may also be a bit confused about how the heck did we meet the statutory two year limit of FTCA when it takes an eternity for an audit dispute to make its way through DCMA and become a Contracting Officer’s Final Decision? The answer of course is that DCAA audits are not injurious by themselves. They are “only” recommendations and, as such, carry no enforcement weight until acted upon by the ACO. A defective audit, e.g., one that did not apply the correct version of FAR, only injures the contractor once the ACO issues a COFD based on that audit. The two year FTCA statutory clock starts running when the injury is known, or should have been known. Given that the ACO has the authority to ignore the audit recommendations (ha ha),  there is no basis for a legal action against DCAA until the COFD is issued and injury, if any, can be established.

OK, Now to Claim Against DCMA Employees
We filed an administrative claim against three employees of DCMA. Our ACO Craig Studley, his supervisor at the time Raymond Yoshida, and unnamed branch manager, or managers, responsible for the Lathrop office in 2010 and 2011. On the latter, we were not able to get any cooperation from DCMA staff for actual name(s) of branch manager(s). Not really surprising. The 2010-2011 is not random. It is the time period when ACO Studley issued two (this is important) Letters of Intent (LOI) to disallow costs. We alleged three claims against ACO Studley – one that he was negligent in determining how much the government had paid Quimba in 2004. This still blows my mind, truth be told. There was ONLY ONE payment to Quimba on this contract during all of 2004 and he got that wrong. Next we come to the issue of the two LOIs. He withdrew his first LOI because he discovered the auditor had made an error – Amanat Sulehria had applied the wrong version of FAR. At that juncture, we assert, the audit should have been returned to DCAA for a review. After all, if the auditor makes such a fundamental error, a natural question would be “what else did he miss?” However, instead, ACO Studley stepped into the auditor’s role and justified in his second LOI, that a different version of FAR would not have changed anything. Perhaps so, but our point is that by making that decision ACO Studley committed professional malpractice – assuming the role of a DCAA auditor when he has not, to our knowledge, been trained or is up to date with all the policies or office memorandums that may have been appropriate to apply to our audit under the correct version of FAR. Finally, as an extension, we also allege that the whole of ACO Studley’s action showed that he did not act independently and that the results of his review of our dispute was pre-determined.

In other words, we say what everyone knows in this business – that ACOs simply rubber stamp auditor recommendations. This claim is posted here in full.

Of course, we are not holding our breath for these folks at DCAA or DCMA to suddenly act honorably, own up to their mistakes and work with us to collectively come together and put this whole mess to bed. I fully expect a long and protracted battle, while watching all these government employees getting promoted and praised for inflicting significant damage on a small business.

People in this post:
Bob Dourandish – bob@quimba.com
Craig Studley – ACO, DCMA – Craig.Studley@dcma.mil
Raymond T. Yoshida – Supervisor, DCMA – Raymond.Yoshida@dcma.mil
Amanat Sulehria- Auditor, DCAA – Amanat.Sulehria@dcaa.mil
Robert Miller – Audit Supervisor, DCAA – bob.miller@dcaa.mil
Tina Fletcher – BranchDirector, DCAA – Tina.fletcher@dcaa.mil