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 – email@example.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 – firstname.lastname@example.org
Tina Fletcher – BranchDirector, DCAA – Tina.email@example.com