Is the Department of Justice a Duped Victim or an Enthusiastic Partner in DCMA’s Abuse of Quimba?
In my last post I focused on Charlie Williams Jr., the DCMA executive director, and his deliberate evasiveness when responding to our SBA complaint. In this post, here, I shared how the DCMA attorney, Srikanti ‘Sri’ Schaffner, made the choice to move the case forward – forcing us to file a complaint with the Court of Federal Claims (COFC) – despite the fact that we provided her the irrefutable proof of ACO Craig Studley’s error. This is significant because, as an experienced attorney, Ms. Schaffner is (or should have been) aware of the ASBCA Case No. 26028 which requires the ACO to correct errors in a COFD, as we discussed here. I also reported in several other posts, for example here and here, that although it had become clear that ACO Studley was unwilling to either do the honorable thing or follow the law, our request for help from other ACOs and DCMA management fell on deaf ears.
This all strikes me as strange as it clearly signals that DCMA staffers are not worried about any consequences of their deliberate acts to abuse contractors, particularly small businesses. Why should they care? After all, they continue to draw their salaries, vest their taxpayer-funded-for-life pensions and full healthcare despite incompetence, ignorance of laws, or deliberate abuse of contractors – all of which translates to added taxpayer expense.
But how is this North Korean style of management allowed to not only exist, but also persist in the US of A?
The answer is that it is extremely difficult to hold government employees accountable for their actions, no matter how incompetent, abusive, or ludicrous. This is because both Congress and the Supreme Court are simply terrified that allowing even a smidgen of reasonable accountability will open the floodgates to lawsuits that will rapidly deplete the “public treasury.”
If this, by itself, is not a solid testimony as to how incompetent the average government bureaucrat is expected to be, I don’t what is.
Sadly, by taking this position Congress and the Supreme Court have, effectively, given government employees an unrestricted license to be incompetent, ignorant, and abusive.
As much as this is an environment only a dictator could love, every attorney I spoke with about our case did assure me that the Department of Justice (DOJ) provides a level of sanity-check and brings a rational balance to the contract dispute process. Specifically, the impression I had before we filed our complaint with the COFC, was that DOJ attorneys act as independent reviewers of a case and that DOJ will not move an unfair or frivolous claim forward.
However, that has not been the case, at least for us. Here is why:
1. As I reported here, the DOJ attorney, P. Davis Oliver, admitted in the Government’ s response to our COFC complaint that Quimba was only paid the monies we have asserted and not the much larger amount claimed by ACO Studley, on which he based a substantial levy on Quimba Software. The levy has, as repeatedly stated in the blog, all but crippled a small business. However, in the same document, attorney Oliver side-stepped admitting ACO Studley’s error by an ambiguous response: he did not admit any direct knowledge of ACO Studley’s COFD. Of course, assuming attorney Oliver is actually up on Contract Disputes Act and related case law, such an admission would force him to take corrective action.
In other words, such an admission would likely mean that attorney Oliver is legally and ethically bound to stop moving the case forward and inform the court which, in my opinion, would lead to the court’s summary decision in Quimba’s favor.Instead, attorney Oliver asked the court to dismiss our complaint, meaning that he actually asked the court to validate the erroneous debt and sought an order by the court to compel Quimba to pay the illegal debt.
2. DOJ attorneys are required by Executive Order 12988, Section 1(b), to try settling a case before attempting litigation. Note that the language of the Order assumes existence of a valid case. That aside, the language in Section 1(b) of the Order specifically states: “… litigation counsel shall evaluate settlement possibilities and make reasonable efforts to settle the litigation.” [Emphasis added]
They keywords I am focusing here are “settlement possibilities” and “reasonable.”
We did receive a settlement offer from the DOJ attorney. It was a “mutual walk away” offer, meaning the DOJ attorney offered to drop all claims against Quimba on this contract, if Quimba dismisses its COFC complaint and signs what-I-presume-would-be an unconditional waiver, releasing the Government and its employees from any further claims. According to the offer, each party would pay its own legal fees.
Now let’s see how the above settlement offer fares in light of the Executive Order 12988.
- First, let us consider the phrase “settlement possibilities.” I am not an attorney but I would assume the intent here is for the DOJ attorney to understand enough about the case to figure out how to cut the baby in half, as it were. Assuming further that attorney Oliver did go through the above, or similar exercise, the offer for a mutual walk away is, as they would say in Vegas, a H*U*G*E tell that he already understands that the Government’s case is fatally flawed. Why else would a DOJ attorney simply give away monies due back to taxpayers? Remember that ACO Craig Studley’s COFD levied the debt as refund since, in his judgment, the government had overpaid Quimba, on this contract, in 2004.
- Now let us consider the word “reasonable.” I can only think of one condition that the DOJ attorney would find this offer “reasonable;” if he knew for certain that he did not have a case. Otherwise wouldn’t you think his first offer might have been to forego interest and penalties, but demand the refund of taxpayer monies overpaid to Quimba? And since overpayments are always potential red flags for contractor fraud (payments are made against certified contractor vouchers/invoices), wouldn’t you think he might use that as a, shall we say, motivator, to expedite recouping of taxpayer funds without spending taxpayer monies on litigation?
What a nice guy to give a small business such a break, no?
Now let me bring us full circle to this post’s headline.
Such a generous (!) offer by the DOJ attorney, P. Davis Oliver, can only be the result of one, and only one, of the following:
- Attorney Oliver has not spent enough time with the case to realize that ACO Studley made an error in his COFD.While this contraindicates a settlement offer, it is possible and, if so, all we can do is shake our heads and roll our eyes at yet another incompetent government employee, and wait for the trial.
- Attorney Oliver does in fact know that the ACO made an error in the COFD but is unaware of ASBCA 26028 and its implication here. In other words, he is new to contract dispute litigation and since DCMA attorney, Ms. Sri Schaffner, is supporting this litigation, attorney Oliver is relying on her experience to guide him.If true, then if we assume that, after 18+ years of experience, the DCMA attorney Srikanti Schaffner is in fact aware of ASBCA 26028, then DOJ is a duped victim because Ms. Schaffner is on the Government defense team and, theoretically anyway, she should have made all appropriate facts available to P. Davis Oliver, the DOJ attorney.
- Attorney Oliver does in fact know that the ACO made an error in the COFD and is aware of the ASBCA 26028 and its implication here.If true, then DOJ is a willing and enthusiastic partner in DCMA’s abuse of Quimba. If we perceive this as an indication of the DOJ policy in such matters, the DOJ is a key enabler for DCMA, indeed all Government agencies’ abuse of not just small businesses, but also American citizens.
No matter how you cut this, DOJ is not going to look good here.
People in this post:
Bob Dourandish – email@example.com
Craig Studley – Craig.Studley@dcma.mil
P. Davis Oliver, Esq. (DOJ Attorney) – P.Davis.Oliver@usdoj.gov
Srikanti Schaffner, Esq. – Srikanti.Schaffner@dcma.mil
Charlie Williams (Director, Defense Contract Management Agency) – No email on file.